1. Ghulam Mustafa Mughal, C.J.--The captioned petitions raise common questions of facts and law and can conveniently be disposed of through single judgment, hence, were heard together and are decided as such.
2. Facts of Petition No, 2167/2016 filed by Abdul Baseer Tajwar shortly stated are that Public Service Commission of Azad Jammu and. Kashmir advertised several posts of Assistant Commissioners and Section Officers vide advertisement No, 03/2011. Among others, petitioner applied for appointment pertaining to the aforesaid posts against the quota of District Neelum. A call letter was issued to him for the written test on 06.07.2015. He accordingly participated in the test. It is stated that Public Service Commission announced the result of the written test, in which, the name of the petitioner was not amongst the successful candidates. The petitioner was told that he could not qualify the paper of English composition, which was really shocking for him. He submitted an application alongwith the prescribed fee for rechecking of the said paper on the ground that he is Master in English and is also teaching the English subject for the last 10 years. When the paper was shown to him, he was again shocked to see that initially in the paper of English composition, he was awarded 48 marks but thereafter, as a result of some rechecking his marks were decreased who was declared failed. He requested for preparation of his result on the basis of first checking but without considering his request, the Public Service Commission has scheduled to hold the interview of the successful candidates from his unit i,e, District Neelum on 12.07.2016. It is stated that curtailment of marks is mala-fide and politically motivated for accommodating someone else. He prayed that respondents may be directed to rectify the wrong and released the result of the petitioner on the basis of earlier marking.
3. The Public Service Commission has filed written statement, wherein, it is stated that petitioner is not an aggrieved person, hence, has got no locus standi to file the instant writ petition. It is further stated that petitioner has failed in English composition subject, hence, he cannot be called for interview. In response to Paragraph 4 of the writ petition, it is stated that Commission conducted combined written test for the posts of Assistant Commissioners, Assistant Superintendents Police plus Section Officers and in order to conduct the exam in a fair and transparent manner, the Examiners from the Federal Public Service Commission were asked to prepare the question papers and answer sheets were also got marked from the said Commission. It is contended that as per policy of the Public Service Commission the original roll numbers allotted to the candidates were detached from the answer sheets and fictitious numbers were written on the answer sheets, so that no candidate could approach the examiner. After receipt of the answer sheets, it transpired that marking of English paper is not reasonable and appears to have been marked favorably, whereupon, the Chairman Public Service Commission constituted two members Committee consisting of Mr. Muhammad Saleem Bismal and Brig. (Rtd) Jameel Azam to look into and check the marking. It is stated that as per Government notification, it is mandatory that each candidate should obtain 33% marks in each subject and 45% marks in aggregate for the success in the written exam. The committee while preparing the result, found that allocation of marks in English composition was not reasonable, therefore, 2298 answer sheets of the candidates, who obtained 33% marks in the said paper, were again sent for checking and reevaluation to the examiner who after rechecking and readjustment of marks duly signed every answer sheet, as a result whereof, marks of some of the candidates stood decreased. It is stated that petitioner obtained 38 marks in this paper and 10 marks in the other paper meaning thereby that he obtained 48 marks out of 150, hence, was not successful. It is stated that the Commission has been assigned the task of recruitment of civil servants fairly, hence, cannot act like post office. The other allegations leveled in the writ petition have also been refuted.
4. Facts of Petition No, 2238/2016 filed on behalf of petitioner, Ameenullah, are that he applied for the posts of Assistant Commissioners and Section Officers B-17 in response to the Advertisement No, 03/2011. A call letter was issued to him for written test and he accordingly participated in the test.
5. The Public Service Commission announced the result of qualified candidates and as per quota, 07 candidates were declared successful against 05 posts pertaining to District Mirpur. The petitioner filed an application before Public Service Commission/Respondent No, 2 for rechecking the papers according to the Public Service Commission Rules. The papers were shown to the petitioner on 22.06.2016 and it was transpired that in the papers of English composition, Urdu Adab and Everyday Science, there were some cutting and double marking by reducing original marks without signed of the examiner. The petitioner obtained 355 marks which are 0.6 numbers less from the total passing aggregate. It is stated that in the paper of Current Affairs in Question No, 2 the petitioner has been given 6 marks on the answer sheet, while on the front page, he has been allotted 5 numbers meaning thereby that 1 mark in the total counting of the aforesaid paper has, been decreased. It is stated that in the paper of Every Day Science some questions remained unchecked and unmarked, due to which marks of the petitioner have been decreased. It is stated that only 1 mark is required to qualify the test but Public Service Commission despite having jurisdiction refused to do the needful. It is stated that respondents are bound to declare the result of the petitioner according to the original marking and remove the cutting in marks which are without signature of the examiner and declare the petitioner as qualified candidate.
6. The Public Service Commission filed comments, which have been treated as written statement, in which the same stand has been taken by the Commission as is listed in petition herein above, however, it is added that petitioner is not an aggrieved person in the eye of law nor any violation has been committed by the Commission. As a result of rechecking nothing was recovered from the record.
7. Respondents No, 8 and 9 filed separate written statement, wherein, it is stated that petitioner has not impleaded necessary parties in line of the respondents, therefore, petition is liable to be dismissed for non-joinder of necessary parties. It is contended that the answering respondents are at Serial No, 1 and 3 of the merit list, hence, no any right of the petitioner has been infringed.
8. Facts of Petition No, 2240/2016 filed on behalf of petitioner, Muhammad Munir, are that he appeared in the written test conducted by the Public Service Commission for the post of Assistant Commissioner B-17 under Roll No, 2882. It is stated that as per handout issued by the Public Service Commission, 07 candidates were declared successful against 02 posts reserved for District Mirpur.
9. He filed an application before the Public Service Commission for rechecking the papers according to the Public Service Commission Rules which was allowed on 22.06.2016. During the scrutiny, the petitioner found some cutting and double marking in the paper of English composition. As a result whereof, numbers allotted to the petitioner were reduced without signature of the examiner as per chart list. In Para No, 5 of the petition, the petitioner submitted that Question No, 5 has five parts but only one part is checked by the examiner whereby remaining four parts are unchecked. It is averred that petitioner has got 359 marks in the written exam against the post of Assistant Commissioner but unfortunately declared fail in English composition paper. It is submitted that act of the respondents is malafide and without lawful authority, therefore, they may be directed to declare the petitioner as qualified candidate.
10. The Public Service Commission filed written statement, wherein, it is stated that petitioner does not fall in the definition of an aggrieved person, therefore, he has got no locus standi to invoke the extraordinary jurisdiction of this Court. It is further stated that writ petition is also liable to be dismissed for non-compliance of Rule 32 of the High Court Procedure Rules, 1984 because the record attached with the petition is not certified. It is averred that re-evaluation or remarking of papers is not allowed as per law or rules in light of the precedents of superior Judiciary (1984 SCMR 448).
11. Respondents. No, 8 and 9 filed separate written statement, wherein, it is stated that they are successful candidates in the written test and interview has been scheduled by the official respondents. It is stated that due to filing of this petition they are suffering a lot. It is submitted that the petitioner has not impleaded necessary parties in line of the respondents, therefore, petition suffers badly for non-joinder of necessary parties. It is contended that the answering respondents are at Serial Nos. 1 and 3 of the merit list, hence, no any right of the petitioner has been infringed.
12. Mr. Muhammad Hanif Minhas, the learned Advocate, , appearing for Abdul Baseer Tajwar, vehemently argued that his client appeared for the posts of Assistant Commissioner and Section Officer against the quota of District Neelum and he has been declared unqualified as per handout of the Public Service Commission. The learned Advocate argued that petitioner submitted an application alongwith the prescribed fee for rechecking and scrutiny of English paper because the result as per performance of his client was not acceptable. He submitted that petitioner is Master in English and is also teaching the said subject for the last ten years including the degree classes. The learned Advocate contended that when the paper was shown to the petitioner, it was noticed that he has been awarded 48 marks in the paper of English but subsequently as a result of rechecking, his marks have been reduced from 48 to 38 and he has been declared unsuccessful. The learned Advocate submitted that it has been done by the Public Service Commission for favoring the candidates of their own choice and paper in fact has been tempered because there is no signature of the examiner on the paper. The learned Advocate argued that this tempering deprived the petitioner from the right of competition, which is vested right and he has also been denied the equal protection of law. The learned Advocate contended that tempering has been proved through the report of commission appointed by this Court. The learned Advocate submitted that there is no provision of rechecking the papers in the AJ&K Public Service Commission (Functions) Rules, 1978 or Procedure Rules, 1994 therefore, action of the Commission is mala-fide and without lawful authority. The learned Advocate submitted that in case the original marks allotted to the petitioner are included then he could be placed amongst the successful candidates in the written test. In support of his submissions, the learned Advocate placed reliance on the following case law:--
1. Miss Gul Sanga vs. Board of Intermediate and Secondary Education, Peshawar [1997 MLD 747];
2. Chairman Board of Intermediate & Secondary Education, Lahore and another vs. Ali Mir, [1984 SCMR433];
3. Naghmana Subhan vs. Islamia University Bahawalpur through Vice Chancellor and 3 others, [2000 YLR 1735];
4. Muhammad Irshad Khan vs. Public Service Commission Azad Jammu and Kashmir through Chairman and 3 others, [2012 SCR 92]; M/s. Kokab-us-Saba Roohi and Nabeela Ayub, the learned Advocates appearing for Ameenullah and Muhammad Munir, contended that Ameenullah, petitioner, applied for appointment against the posts of Assistant Commissioner and Section Officer against the quota of District Mirpur and he has been declared failed by the Public Service Commission. The learned Advocates contended that their client moved an application before the Public Service Commission for rechecking of the papers of English Composition, Urdu Adab and Everyday Science, when papers are shown to him, it was found that there are some cutting and double marking in the paper of English composition. As a result whereof, the petitioner has been declared unsuccessful. The learned Advocates argued that petitioner, Muhammad Munir also appeared in the test and declared failed due to some rechecking, as a result whereof, the marks have been decreased. The learned Advocates submitted that the paper of English composition was consisting of seven questions and as per first checking the petitioner was awarded 42 marks, whereas after rechecking his marks have been reduced from 42 to 27. They further argued that Question No, 5 has five parts but only one part was checked by the examiner and remaining four parts have been left unchecked, therefore, petitioner has been treated arbitrarily. The learned Advocates submitted that the aforesaid petitioner has got 359 marks in the written exam of the public Service Commission against the post of Assistant Commissioner but unfortunately has been declared failed in the paper of English composition with mala-fide intention and ulterior ,motives in order to accommodate the persons of their own choice.
13. The learned Advocates prayed that even at the moment petitioner is lacking 0.6 marks for qualifying the written test and Public Service Commission has the jurisdiction to grant grace mark to him and declare qualified. In this regard, reliance was placed on decision of Federal Public Service Commission listed in Para 8 of the petition.
14. Kh. Attaullah Chak, the learned Advocate, appearing for Public Service Commission, submitted that argument of the learned Advocate for the petitioners that rechecking has been ordered by the Public Service Commission is misconceived. The learned Advocate maintained that rechecking can be ordered on the application of the candidate and in the present case Public. Service Commission while preparing the result itself found that marking of the paper of English Composition is not reasonable and in order to check the true position the Chairman Public Service Commission, who is vested with the jurisdiction and authority, constituted two members committee consisting on Mr. Muhammad Saleem Bismal and Brig. (Rtd) Jameel Azam, who after checking the paper of English composition formed the opinion that these papers should be sent to the examiner for remarking/re-evaluation of the allocated marks. The learned Advocate argued that 2298 papers of the candidates who secured 33% (passing marks) were sent to the examiner who after rechecking and reevaluating the marks has put his signature on each and every paper and sent to the Public Service Commission, thereafter, handout has been issued of the qualified candidates. The learned Advocate contended that Public Service Commission is vested with the sole authority to conduct the test and interview and prepare result which includes marking/rechecking of the papers, therefore, it cannot be said by any stretch of imagination that Public Service Commission has traveled beyond the jurisdiction or tempered the result for benefiting anyone. The learned Advocate submitted that Public Service Commission which is a constitutional body has been blamed without any fault on its part, which has shaken the institution.
15. The learned Advocate contended that the authorities referred to and relied upon by the learned Advocates for the petitioners are not applicable because rechecking can be ordered on the application of any candidate before issuance of handout and during preparation, however, checking and rechecking of the papers is within the purview of Public Service Commission.
16. Raja Amjad Ali Khan, the learned Advocate appearing for Respondents No, 8 and 9 in Writ Petitions No, 2238 and 2240, submitted that the Public Service Commission has conducted the examination in .a transparent manner and nothing can be said against the performance of the Commission.
17. The learned Advocate contended that it is for the first time that result of the candidates is shown to them with their marks and also placed at the notice board. The learned Advocate further argued that it has also happened for the first time that upon the application of candidates they are shown their papers without any hesitation, therefore, it cannot be said that Public Service Commission has committed any wrong or result has been tempered as has been argued from the other side. The learned Advocate contended that as a result of re-checking position of meritorious candidates remained the same so far as District Mirpur is concerned. The candidates who have not qualified the written test are not aggrieved and on their move the result prepared by the Public Service Commission cannot be declared illegal. The learned Advocate stated that petition badly suffers from lathes because as per stand of the petitioners they moved the Public Service Commission for checking of the papers on 22.06.2016 and the petitions have been filed before this Court on 26.07.2016 without any explanation. The learned Advocate submitted that petitions have been filed with mala-fide intention because the same have been filed when the test and interview of District Hattian Bala, Bhimber, Poonch, Sudhnuti/Pallandri, Bagh, Refugee settled in Pakistan and Refugees 1989 have been conducted whereas the interview of the remaining units are yet to be held. The learned Advocate argued that the test and interview against the posts of Assistant Commissioner are being conducted after a delay of many years and amount for training of selectees have been submitted to the academy and the selectees have to join the academy on 10th of October 2016, therefore, grant of relief to the petitioner in any manner will frustrate the selection process on one hand and will cause irreparable loss to the Government treasury on the other.
18. M/s. Raza Ali Khan, Advocate General, Kh. Muhammad Nasim, Sardar M.R. Khan and Sardar Muhammad Habib Zia, the learned Advocates appearing for the remaining respondents and interveners have adopted the arguments advanced on behalf of the Public Service Commission and submitted that as the test and interview have been conducted and their clients are on merits, therefore, petitions are mala-fide and have been filed in order to frustrate the process of selection, hence, the same may be dismissed. The learned Advocates further argued that result has not materially been affected due to remarking because position remained the same and the candidates who were placed ahead on the merit remained at the top. The learned Advocates argued that without any base serious allegations have been levelled against the respondents which have ruined the prestige and dignity of the constitutional institution who has a pivotal role in selection of bureaucracy.
19. We have heard the learned Advocates for the parties and gone through the record of the case.
20. It is an admitted position that on the basis of award list issued by the examiner earlier petitioners, herein, have qualified the .paper of English composition by securing 44, 57 and 42 marks respectively. After re-evaluation/rechecking the marks of aforesaid petitioners have been reduced.
21. The question which emerges for decision as to whether the Public Service Commission is vested with the authority to ask the examiner to re-evaluate/re-check the papers and reduce marks on the ground that marks are awarded by him leniently and are not reasonable? In our considered view in absence of any express provision, the Public Service Commission cannot ask for rechecking or re-evaluation the answer sheets, however, omission or error can be got corrected or if any question is left unchecked the same can also be got checked and verified, however, the total re- evaluation of the papers/re-checking in absence of any rule or policy is without lawful authority and is not permissible under law. The learned Advocate representing the Public Service Commission was confronted as to whether there is any policy or rule which empowers the Public Service Commission for rechecking/re-evaluation of the question papers? His answer is in negative. An identical proposition came up before the apex Court of Azad Jammu and Kashmir in Muhammad Irshad Khan's case, [2012 SCR 92], wherein, it was laid down that until and unless it was specifically provided by any statute the remarking cannot be ordered. In that case the Public Service Commission took a categorical stand that there is no policy or rule which permits the Public Service Commission for re-evaluation/remarking. There is a plethora of authorities in support of the proposition that remarking or re-evaluation of the papers cannot be ordered. We may refer some of the cases herein below. In a case titled "Pramood Kumar Srivastava vs. Chairman Bihar Public Service Commission Patna and others, "[(2004) 6 Supreme. Court Cases 714], in an identical case the Indian apex Court in Para 7 of the report observed as under:-- The main question which arises for consideration is whether the learned Single Judge was justified in directing re-evaluation of the answer-book of the appellant in General Science paper. Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for a re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer- books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and nothing them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks. This question was examined in considerable detail in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth. In this case, the relevant rules provided for verification (scrutiny of marks) on an application made to that effect by a candidate. Some of the students filed writ petitions praying that they may be allowed to inspect the answer-books and the Board be directed to conduct reevaluation of such of the answer- books as the petitioners may demand after inspection. The High Court held that the rule providing for verification of marks gave an implied power to the examinees to demand a disclosure and inspection and also to seek re-evaluation of the answer-books. The judgment of the High Court was set aside and it was held that in absence of a specific provision conferring a right upon an examinee to .have his answer-books re-evaluated, no such direction can be issued. There is no dispute that under the relevant rule of the Commission there is no dispute that under the relevant rule of the Commission there is no provision entitling a candidate to have his answer-books re- evaluated. In such a situation, the prayer made by the appellant in the writ petition was wholly untenable and the learned Single Judge had clearly erred in having the answer-book of the appellant re-evaluated."
22. ' In another case titled "Himachal Pradesh Public Service Commission vs. Mukesh Thakur and another" [(2010) 6 Supreme Court Cases 759], similar view was taken: It is hardly a question of deliberation that a candidate after -declaration of result by the Public Service Commission has no right to ask for re-evaluation of answer sheets in absence of any provision or rule. In absence of any rule or policy, it cannot be said that any of the right of a candidate is infringed. In the instant case, as per stand of the Public Service Commission, two members Committee was constituted without any formal notification, who itself checked the papers and recommended for re-evaluation of English composition paper to the Chairman. The learned Chairman has decided to send the papers back to the examiner for re- evaluation/remarking. The practice adopted by the Public Service Commission in our estimation is not covered by any rule, policy or by the Public Service Commission Act, 1986 and rules made thereunder. Any action or act which is not backed by any policy or rule cannot be saved especially so when examinees are likely to be affected. We are conscious of the fact that Public Service Commission is a statutory body which has the sole authority to judge the reasonableness and suitability regarding the merits of the candidates but the action must be backed by law or policy.
23. This view lends support from cases titled M.D Tahir v. Federal Govt. through Secretary and others, [PLD 2000 Lah. 251] and "Muhammad Ishaque Khan v. Khursheed Aziz and 03 others, "[1998 SCR 1], at Page 9 of the report, the apex Court has also approved the same view. Relevant observations are as under: "It may be observed here that we have no quarrel with the proposition that the Public Service Commission is a statutory body and if while making selection of the candidates it violates any rule on the point which adversely effects the fair selection, the High Court is legally justified to give appropriate remedy in exercise of writ jurisdiction but where the matter is one which falls within the discretion of the Public Service Commission as association of the Subject Specialist, it cannot be interfered within exercise of writ jurisdiction, specially so when the discretion exercised advances the cause of justice."
24. It may be stated that the provision of remarking has not been willfully enacted by the legislature for the reasons that if the door is open for rechecking and re-evaluation of the papers then exams conducted by the Public Service Commission could never be finalized and it will create immense difficulties for the Commission in conducting the exams. Similarly, the provision has also not been provided in autonomous bodies i,e, Universities and Boards for the same reasons. Our afore-stated view is supported by the following case law:--
(i) Abdul Hakim Hashmi v. Federal Public Service Commission, Islamabad and 08 others, [2002 PSC 404];
(ii) Mst. Faheeda v. Government of Sindh and 03 others, [2004 SCMR 1828]; (iii)Himachal Pradesh Public Service Commission v. Mukesh Thakur and another, [2010 (6 Supreme Court Cases) 759]; (iv)Muhammad Abu Bakar Aftab Qureshi v. Federal Public Service Commission and others, [2001 CLC 367]; We have been told that test & interview on the basis of subsequent marking has been held to the extent of Districts Poonch, Sudhnuti/Pallandri, Haveli, Bagh, Haitian Bala, Refugees settled in Pakistan and Refugees of 1989. The interview to the extent of Districts Mirpur, Muzaffarabad, Neelum, Kotli and against a seat reserved for disable persons are yet to be held. So far as District Bhimber is concerned, as stated above the recommendations issued by the Public Service Commission have been challenged through a separate writ petition, in which, recommendees has also been impleaded as, party in line of the respondents, therefore, fate of that case would be judged separately. The handout issued by the Public Service Commission for the posts of District Bhimber is not sub-judice in the instant cases. The present petitions have been filed by Abdul Baseer Tajwar resident of Neelum, Ameenullah and Muhammad Munir residents of Mirpur only, we, therefore, do not embark on any other point which is not before us. We would have asked the Public Service Commission to go for fresh papers but as stated above, after the test and interview result of seven units have been issued. Neither handout of those units have been challenged in these petitions nor recommendees have been impleaded in line of the respondents before us, therefore, this order will not affect the selection of those units, however, this is subject to just exceptions.
25. The contention of Raja Amjad Ali Khan, the learned Advocate for the private respondents in Writ Petitions No, 2238 and 2240 that petitions have been filed after a considerable delay because alleged re-evaluation and rechecking came into the knowledge of the petitioners on 22.06.2016 and they have filed the petitions on 26.07.2016 after a period of one month, therefore, they are not entitled to any relief is concerned that has no substance in the circumstances of the present cases.
26. It is correct that principle of laches varies from case to case and in some cases laches is fatal even though delay is of few days but in the instant case as we have declared the remarking illegal and without lawful authority, therefore, the laches will not come in the way of petitioners and relief can be granted to them especially so when the interviews of Mirpur District are yet to be held. The contention of the learned Advocate that necessary parties have not been impleaded in line of the respondents is devoid of any force. As the interview is yet to be held and final result is to be announced by the Public Service Commission, therefore, it cannot be said that any vested accrued right of answering respondents would be snatched.
27. The contention of the learned Advocates for the petitioners that result of the Public Service Commission has been tempered in order to give benefit to the candidates of their own choice is also devoid of any force because the allegation of tempering the paper against the members of the Commission is not supported from the record, therefore, the same is baseless and without any proof. We have not found any tempering even after rechecking the papers, the examiner has put his signature on each papers, therefore, it cannot be said that Public Service Commission or any of its subordinate functionaries has tempered the papers. The contention of Mrs. Nabeela Ayub, that Commission is competent to award 1 grace mark to her client as similar practice is being followed by Federal Public Service Commission needs no deliberation in view of the proposed conclusion.
28. The upshot of the above discussion is that petitions are accepted and remarking/re-evaluation made by the Public Service Commission is declared to have been made without lawful authority.
29. Resultantly, the marks awarded by the Examiner earlier stands restored. The Public Service Commission may continue new selection process of the remaining units. A copy of the judgment shall be annexed with the connected petitions.