MAHMOOD AHMAD KHAN, J.--- The Petition is the Applicant to the consolidated advertisement bearing No,01/2017 (hereinafter referred to as "the said advertisement") published in daily "Dawn" dated 16.04.2017 issued by the Respondent No,1 . It is stated by the Petitioner that he has been serving in Criminal Prosecution Service, Law Department, Government of Sindh as Assistant Prosecutor General (BPS-17) after qualifying the examination conducted by the Sindh Public Service Commission (SPSC) by earning second position on merit list in the entire province and now promoted as Deputy Prosecutor General (BPS-18). It is further stated that by the said advertisement 09 posts (6 Rural and 3 Urban) for Additional Prosecutor General (BPS-19) in Criminal Prosecutor Service, Law Department, Government of Sindh have been offered with the following qualification and experience:-- "Law Graduate from a recognized University having at least (10) Ten years standing at the Bar and not less than (08) Eight years as an Advocate of High Court; provided that the length of standing at Bar would be reduced by (02) two years, in case candidate holds Barrister of Post Graduate Degree in law". The Petitioner claims that he fulfills the given qualification, as such is liable for consideration of the said post on account of his experience and service. It is specified by the petitioner to have been enrolled as an Advocate on 2.6.2001, for the High Court on 22.8.2003, as on the closing date of the said advertisement being 15.5.2017, he possesses a total experience of (15) fifteen years, (11) Eleven months and (13) thirteen days, apart from the fact that he is an L.L.M. The petitioner has also referred earlier proceedings, wherein orders have been obtained. That lately the matter was considered as no opportunity of appeal was provided to the applicant by the said Respondent. It is further stated that without any written test all the candidates have been directly called for interview on the five posts of Additional Prosecutor General, contravening the prescribed rules and regulations, making the selection exposed to judicial notice as illegal and void. It is finally alleged that the rejection of the petitioner is discriminatory and against his fundamental rights.
3. Comments stand filed in the matter, wherein eligibility and qualification of the Petitioner stands denied on the basis of the given/required criteria, qualification, experience and standing.
4. Learned Counsel for the Respondent No,1 at the very outsets states that in another similar case petitioner had been granted relief and in the present matter the said respondent is similarly willing to entertain the Petitioner to the extent of providing an opportunity of appeal. The Petitioner however points out the element of calling the candidates without a written test. Learned Counsel for the respondent No,1 states that the Petitioner in this regard is not liable to be entertained as he does not qualify to the required criteria. The Petitioner requests for a specific order as to his eligibility for initial consideration, on account of alleged discrimination.
5. In the circumstances we have heard the Learned Counsel present for the final disposal of the matter considering the two elements being; i. Whether the Petitioner qualifies to the criteria as offered by the Respondent No,) in the said advertisement? ii .Whether the Respondent No,) is legally entitled to finally consider the applicants/ candidates for the posts in the said advertisement without a written test?
6. It is contended on part of the petitioner referring to an earlier order passed in C.P.No,D-2497/2012 (Syed Sardar Ali Shah Rizvi v. Chairman SPSC and others) at Sukkur restoring the candidature of the petitioner therein to be eligible for interview through letter dated 15-2-2013 issued in compliance to the order passed in the matter, that having conceded to the entertainment of similar case, the non-entertainment of the petitioner is discriminatory and violation of his fundamental rights as since his appointment his license stands suspended despite his experience before this Court which is liable to be considered and is available to him in terms of the said advertisement and by commonsense, accepted for Syed Sardar Ali Shah Rizvi be also given to him in consonance. It is further contended that the said advertisement specifies for the written test and the same is required for assessm ent of the merit of the candidates as such the same is liable to be conducted accordingly.
Learned Counsel for the Respondent No,1 however states that only right of appeal can be availed by the petitioner and that he is not entitled lacking the prescribed experience. It is further stated that the said Respondent arranges written competitive examination for the required qualification examination of two types only viz. 1) Combined Competitive Examination 2) Revenue Qualifying Examination, whereas for any other recruitment short listing method is utilized under Recruitment Management Regulations. The examinations are available for the posts of Engineering and Civil nature available. He however states that candidates can be short listed by MCQ's. Learned Counsel also referred to "The Sindh Public Service Commission (Functions) Rules, 1990", especially to its definition provided under Rule 2, sub-Rule (g) of the word: "Test", described as "includes either one or more from amongst the following as determined by the Commission;- (a)written examination; (b)interview; (c)viva voce".
Although a very specific statement/argument has not been made perhaps it is implied that "it is available within the discretion of the Respondent No, 1 to conduct the test by use of any of the process one or more, thus concluding that even an interview and/or viva voce only is sufficient to fulfill the requirement of the word "test" in the recruitment without the written examination." As such the act of calling for interview without written examination needs no disturbance or that the same can be fulfilled by MCQ's (multiple choice questions).
Learned AAG states that the element of transparency must be kept in consideration for appointment and further concedes the same is not available without a written examination.
The petitioner in rebuttal states that the interview/s must be conducted after the written test, he refers to a printout of web page/screen of Sindh Public Service Commission under the heading of Policy portion; "F. Tabulation of Merit List after conduct of Written Examinations, written tests and/or Short listing."
Submitting a copy before us. Also referred by the Learned Counsel is the proviso to Sub-Rule (2) of Rule 3 to the fore-mentioned "The Sindh Public Service Commission (Functions) Rules, 1990" being . as under :- "Provided that written competitive examination shall be conducted in all cases in which such examination has been prescribed as the method of recruitment and the viva-voce shall be held only of those candidates who qualify in the written examination".
The Petitioner also referred to the said advertisements portion of text under the heading: "IMPORTANT INSTRUCTIONS/ NOTES; (iii) Candidate must show Original paid challan of Rs,500/- at the time of Pro-interview Written Test."
And points out absence of anything in between the said words e.g. and/or (underling for specification by me).
7. Having heard the learned Counsel and gone through the record. It requires no deeper deliberation on part of this Court to consider the period of experience specified, similarly this Court is well aware that the Deputy Prosecutor General and the Assistant Prosecutor General are appearing in criminal cases before this Court. As far as the Respondent No,1 is concerned the entertainment of similar case for the referred Syed Sardar Ali Shah Rizvi opens the gates of entertainment to the level of clearing the required criteria and in adversity the fundamental rights as to equal treatment of the petitioner shall be treated as being violated.
As to the written test it is our understanding that apart from the matters of legal existence which are discussed below without the written competitive test no element of transparency in the matter can be appreciated/recorded and maintained. As far as the legal position concerned it is observed that not only do the rules direct for the written test to be required no exclusion under the definition of the word "Test" as given therein can be made to a) written examination; which comes first as such if any exclusion can be given the same shall be to the b) or c) as the case may be coming subsequently and available if found required but the same cannot be either prioritized or allowed to exclude the one coming first. It is also considerable that apart from Rule 3 providing for the same as a specific direction for the appointments of basic pay scale 11 to 22, the proviso to Sub-Rule (2) of Rule 3 to the fore-mentioned "The Sindh Public Service Commission (Functions) Rules, 1990" read with the said advertisement's portion of text written test, mandates compliance. With this background we hold that it is required on part of the Respondent No,1 to first hold the written competitive test (not being MCQ's being the least transparent) for the posts advertised and thereafter call the candidates for interview and viva voice if required and considered required by giving the priority as given in the relevant rules.
It is clarified in the matter that the petitioner by virtue of above order only stands qualified for consideration only, the final selection rests with the concerned authorities accordingly. With the above directions this petition stands disposed of in the above terms.
Copy of the said order to be, communicated to the Respondent No,1 for compliance and a report to be submitted accordingly.