WIQAR AHMAD, J.- This order is directed to dispose of the instant petition as well as connected constitutional petitions bearing No. 605-A/2021, 874-A/2021, 1058-A/2021, 1052-A/2022, 171- A/2023 and 247-A/2023, as all these petitions are in respect of same subject matter and involve similar question of law.
2. Petitioners in all these connected petitions were candidates for appointment against vacant posts of Jail Warders, advertised by the respondents. Petitioners are mainly aggrieved of process adopted for making appointments of Jail Warders in different jails of province. In order to clarify grievance of particular petitioners in their separate petitions, the facts of constitutional petitions are given separately as under; WP No. 600-A/2021 In the instant petition, petitioners contended that they along with others applied for their appointment as Jail Warders. As per advertisement, candidates securing less than 45% percent marks in written test would not be eligible for appointment. Petitioners contended that they secured qualifying marks in the written test, whereas respondents No. 4 to 10, having obtained less marks then petitioners, had been appointed whereas petitioners were deprived from their appointment. Petitioners were aggrieved of non-inclusion of marks secured by them in the test conducted by Elite Testing Service in the final merit list.
WP No. 605-A/2021 Petitioners in the instant petition have also been aggrieved of non-inclusion of marks obtained by them in the initial test taken by Elite Testing System coupled with the criteria devised for compiling merit list. Additionally, petitioners at Serial No. 3, 7, 8 & 10 have also been aggrieved of the act of respondents, whereby they have been treated failed after giving them zero marks in interview.
WP No. 874-A/2021 Petitioner herein, after applying for his appointed as Jail Warder, qualified written test as well as interview and was ultimately placed at serial No. 2 of the waiting list. As per contentions of the petitioner, respondents No. 1 to 3 have appointed respondents No. 4 to 7, appearing at Serial No. 6, 7 & 14 of the merit list, whereas deprived him from right of appointment despite the fact that he was appearing at Serial No. 2 of the waiting list.
WP No. 1058-A/2021 Petitioner in the instant case contends that despite qualifying the requisite tests as well as interview, he has not been appointed against vacant post of Jail Warder. He further contended that at stage of interview, he was malafidely given zero marks in order to deprive him from his appointment.
WP No. 1052-A/2022 Petitioners in the instant constitutional petition have claimed that marks obtained by them in the screening test should have been given weightage towards the final aggregate and non-inclusion of such marks in the final aggregate by imposing condition No. 13 of the advertisement, had prejudiced them. They have also assailed condition No. 13 of the advertisement which provides; WP No. 171-A/2023 & 247-A/2023 In both these petitions, petitioners have challenged vires of criteria for appointment in Grade-5 through initial recruitment, whereby for assigning marks of prescribed qualification for a particular post, allegedly a very illogical method had been adopted by giving an edge to the incumbents securing first division over candidates securing second and third division.
4. Arguments of learned counsel for the parties, except Mr. Abdul Saboor Khan, Advocate (learned counsel for petitioner in WP No. 1052-A/2022) heard and available record gone through. Although Mr. Abdul Saboor Khan, Advocate was not available but his case being similar in nature and clubbed with other writ petitions was also taken up for decision on merits.
5. Perusal of record revealed that grievances of petitioners in these connected petitions have mostly been common. In writ petition No. 605-A/2022, besides highlighting the common grievances against recruitment process, certain additional issues have also been raised regarding petitioners at Serial No. 3, 7, 8 and 10 of said writ petition, but same shall be addressed at latter part of this judgment.
6. The common ground of attack, as highlighted by learned counsel for the petitioners at bar, may be summarized in the following manner; A. That despite taking of a test through Elite Testing System (ETS) from all petitioners, marks thereof have not been counted along with the aggregate marks of qualification, experience and interview and therefore, all respective petitioners have not been dealt in accordance with law.
B. That the criteria wherein 70 out of 100 marks have been assigned for the prescribed qualification i.e. Matriculation (SSC) in this case and only 12 marks for higher education out of 100, same was illogical, irrational and unreasonable.
Resolution of Point "A"
7. So far as the first point summarized above is concerned, it is important to be noted that the concerned department i.e. Prison Department, Government of Khyber Pakhtunkhwa, had constituted a Departmental Selection Committee for the subject recruitment which had taken the following decisions; "A pre-DSC meeting was held in the office of Superintendent Headquarter Prison Haripur on 22/03/2021 under the chairmanship of Superintendent headquarter Prison Haripur having membership of following officers,.- i) Mr. Raziq Muhammad, SO (P&R) Home & Tribal Affairs Department, Khyber Pakhtunkhwa Peshawar/ Member. ii) Mr. Majid Ghufran Jadoon, D/D/Representative of IG Prisons, Khyber Pakhlunkhwa, Peshawar/ Member.
Following unanimous decisions were taken during course of Pre-DSC meeting.
I) 05 candidates against 01(each) post will be called for interview and merit will stand up to 41 marks of written test. All candidates having 41 marks in written test will be called for interview.
II) Same criteria as decided in Para (I) will be adopted for the female and minority candidates.
III) Per day 50 candidates will be called for interview.
IV)Interview process will commence w. e.f Monday 05-04-2021.
V) Superintendent Head Quarter Central Prison Ilaripur will constitute a scrutiny committee for scrutiny of the documents of the candidates.
VI) Candidates for interview will be informed through postal call letter, text messages and telephone call.
VII) Marks of candidates obtained in written test as conducted by ETS will only he considered for eligibility in interview/short listing purpose and these marks will not be the part of aggregate total.
Only prescribed qualification (SSCY Metric), Higher Qualification, Experience (not pertinent in case of Warder male/female) and interview, will be the components of Aggregate in accordance with the procedure/policy as notified by Govt of KPK Establishment Department.
VIII) In compliance of telephonic directions of Deputy Secretary Home & TAs Department KP Number of candidates be interviewed is increased form 30 candidates to 50 candidates per day.
IX) Further unanimously flsg\il.d the No. o/' canclidcrtes per daY be increased /i'ont 50 lo B0 candidales. l(hole Proceeding d Interview is crtncltLclecl as under;- IA9 Further unanimously decided the No. of candidates per day be increased from 50 to 80 candidates. Whole Proceeding of Interview is concluded as under;- S. No.Description No. 01 Pass Candidates 639 02 Fail Candidates 448 03Unfit (Height, Chest)
Concerned testing agency may be accessed into the matter. for such a drastic negligence.53 04 3rd Division in SSC 01 04 Absent 77 Total 1218
8. Then according to the merit order, 221 candidates had been considered for appointment. For reference sake, the first and second row of merit list along with name of contestants is also reproduced hereunder: S. No.S#Roll No.Name Father Name MatricHigherInterviewTotal 1 49107923Noman Tariq Muhammad Tariq70 12 6,67 88,67 2 146120550Muhammad IdreesAli Khan 70 12 6,67 88,67
9. On same pattern, all the marking had been assigned to all the candidates wherein 221 candidates have been recommended for appointment while another 59 candidates had also been placed on waiting list.
10. It was case of the petitioners before us that the marks of test taken from them through Elite Testing System should have been included in the aggregate and exclusion thereof had prejudiced their rights. The respondents, on the other hand, were having stance that in the relevant criteria for selection provided in Establishment Code Khyber Pakhtunkhwa (Revised Edition) 2011 (hereinafter referred to as "Estacode") for appointment on post in grade-5 and above, the marks for test had not been provided to be counted and the said test had only been taken for the purpose of shortlisting. In this respect, part of relevant criteria is also reproduced for ready reference;
(II) Criteria of Selection for initial recruitment:-
(i) For post in Grades 1 to 4- No special criteria has been laid down and the committee concerned shall adopt its own method and procedure for selection.
(ii) For posts in Grade-5 and above in all departments.- In addition to the total marks allocated for a written competitive examination, if any held, the total marks will be 100 as per distribution given below: (a) Prescribed qualification ...70
(b) Higher qualification ...12
(c) Experience ...10
(d) Interview ...08"
11. Taking the words "In addition to the total marks allocated for written competitive examination, if any held" learned counsel for petitioners have also been arguing that the marks for competitive examination have been countable but exclusion thereof have been made, which had prejudiced their rights. We have considered this aspect of the case but we are unable to agree with learned counsel for the petitioners for the reason that competitive examination means an examination, which is required under the law for appointment on a particular post. Qualifying this test, conducted through Elite Testing System, was not requirement of law under Jail Rules. Therefore, non-counting of respective scores obtained by the candidate in the test, were not found by us sufficient for reversing entire process of recruitment, already completed in the whole province as a result of which large number of candidates have already been appointed. We have heard learned counsel for petitioners but no case of violation of merit or discrimination could be made out, so far as the appointed candidates were concerned. The criteria adopted by the Departmental Selection Committee has properly been followed and according to the given criteria, marks have been assigned to all the candidates on the basis of their qualification, higher qualification, experience and interview.
12. So far as knocking out of candidates due to obtaining zero marks in interview, is concerned, said issue shall be addressed at latter part of this judgment, as mentioned earlier. Except those cases, we could not find any illegality, arbitrariness or favouritism in assigning of marks to the selected candidates.
Resolution of point B:
13. The criteria has been framed much earlier and as per a footnote available there, it has lastly been revised on 26.05.2000. It appears that it has not been considered and revised thereafter by the government. In writ petitions No. 171-A/2023 and 247-A/2023, the petitioners have also challenged vires of the criteria to be illogical and irrational. Learned counsel representing petitioners in said petitions contended that out of total 100 marks, 70 marks have been assigned to the prescribed qualification alone which in this case had been matric (SSC), while only 12 marks have been assigned to higher qualification. She contended that in the subsequent part, first divisioner has been shown to be entitled to 70 marks while second divisioner entitled to 53 marks and third divisioner entitled to 42 marks. She contended that if a candidate happens to have acquired second division in matric, a decade or two before, he would not be able to compete with another candidate who had obtained first division, even if the former has improved and has obtained his education up to doctorate i.e. PhD. She termed the criteria to be really illogical and irrational. In response to her arguments, learned AAG relied upon judgment of honoruable Supreme Court of Pakistan, given in the case of "Fida Hussain Vs. The Secretary, Kashmir Af'f'airs and Northern Affairs Division, Islamabad and another" reported as PLD 1995 Supreme Court 701 and contended that framing of criteria for appointment on certain post or requirement of certain qualification, was a prerogative of the provincial government which could not be questioned in constitutional jurisdiction of this Court.
14. Arguments of learned counsel for petitioner was carrying weight, but we could not annul entire process of recruitment on said ground for the reason that basically it is the job of the employing authority i.e. concerned department or provincial government in this case, to devise criteria for determining merit of the competing candidates but at the same time we cannot lose sight of the fact that over the years, there have been much developments in the field of academics and proficiency. The mode and methods, examination systems as well as scheme of studies of various disciplines have changed substantially over the past two decades. It appears that the criteria had been fashioned on the old annual educational system and there also the quantification had not been properly made. In the case in hand, where the basic prescribed qualification is SSC, the criteria is such that only and only obtaining first division would give edge to a candidate over another candidate even if later happens to be a PhD degree holder in the relevant field. For civil services or public services, persons are hired on public money. It is constitutional and legal responsibility of the government, particularly the relevant department (which is custodian of the relevant rules) that rules and instructions are so formulated that best human resource is procured for public services. There can't be two opinions in this regard. We, therefore, feel inclined to refer the matter to concerned department of government i.e. worthy Secretary Establishment, Government of Khyber Pakhtunkhwa as well as worthy Chief Secretary, Government of Khyber Pakhtunkhwa for re-consideration of the criteria and re-framing same in accordance with the prevalent standards.
In addition, they may also get feedback from leading educationists, professionals and the relevant departments as well as attached departments. In the new situation, it should also be clarified whether tests conducted and scores obtained therein should be given weightage, if so, then the quantum of such weightage should also be specified.
15. Coming to petitioners appearing at Serial No. 3, 7, 8 and 10 of writ petition No. 605A/2021, as well as petitioner in WP No. 1058-A/2021, it is important to be noted that in their cases, zero marks have been given to them in interview and they have been declared failed. Learned AAG was asked, whether any specific passing marks in interview were required in any law, rules or instructions of the government, but he could not point out any law, rules or instructions of the government in this behalf. Learned AAG referred to footnote of the merit list wherein following three conditions have been mentioned; "XII) Number of candidates were awarded incorrect division of academics, names and DOB by testing agencies i.e. ETS, DSC tried to remove these mistakes/incorrect awarding of division of academics, names and DOB.
XIII) Criteria for the candidates on waiting is set as "age vise seniority".
XIV) Candidate who scored 03 and above marks will be considered as "Pass".
(Emphasis Supplied)
16. The condition that a candidate must obtain 03 marks in interview, otherwise he would be considered failed, have been put in place by the concerned Departmental Selection Committee.
The criteria on the other hand, (a part of which has already been reproduced in our discussion above) no doubt assigned 08 marks out of 100 for interview, but the instructions nowhere provided or required obtaining of minimum or passing marks in the interview. By putting the condition of passing the interview by obtaining 03 out of 08 marks, the Departmental Selection Committee has tried to acquire a power of veto for knocking out any candidate from the recruitment process, be him on top of the merit list otherwise. This absolute discretion has never been vested in the Departmental Selection Committee or the appointing authority by the relevant criteria already provided in Estacode.
17. We found said decision of the Departmental Selection Committee to be arbitrary, whimsical and irrational. Such absolute discretion cannot be left with members of the Departmental Selection Committee where they can disregard the other qualification, higher qualification and experience marks by giving zero marks to somebody and considering him fail. Therefore, we by allowing writ petitions No. 605-A/2021 & 1058- A/2021, direct the respondents to recalculate marks of petitioner in WP No. 1058-A/2021 as well as that of petitioners at Serial No. 3, 7, 8 and 10 in WP No. 605-A/2021 by considering their zero marks in interview and if they are found having more marks then last appointed candidate in aggregate, they shall accordingly be appointed, but without disturbing already appointed candidates. As per report submitted by the respondents in response to order dated 08.02.2023 in WP No. 874-A/2021, 12 seats of minorities had gone vacant. These five candidates or any number of such candidates, if found entitled for appointment, shall be adjusted against vacant seats of minorities and quota reserved for minorities shall be carried forward for future appointment on minorities quota in said department.
18. In writ petition No. 874-A/2021, petitioner had contended that as per waiting list annexed at page 25 of writ petition, petitioner had been placed at serial No. 2 and persons appearing at serial No. 6, 7 & 14 had been appointed from waiting list, but petitioner had wrongly been deprived of his appointment. On the last date of hearing, this Court has also passed following order;- "Learned counsel for petitioner raised a new ground at bar, that total 250 vacancies had been available and advertised but department has only made appointment against 221 seats. When learned AAG was asked said aspect of the case, he sought adjournment to get briefing from concerned department and explain the situation on the next date. In the meanwhile, Superintendent Central Prison Hari pur shall also file explanation to the above noted query in writing within seven (07) days. This petition be also clubbed together with the case of Jail Warders."
19. In response thereto, they have filed report in said writ petition, explaining the position that out of 250 candidates, 221 had been appointed on merits while 29 had been appointed from those candidates who have formerly been belonging to armed forces, in accordance with rules. In para 4 of the comments, they have also explained that waiting list had been redrafted as per age, because marks of test and interview of the first eight candidates on waiting list have been same. In the waiting list, annexed with the comments, they have also mentioned date of birth of all the candidates, wherein petitioner appears at Serial No. 09 while they have appointed candidates at Serial No. 1, 2 and 3. They being older in age from petitioner, have rightly been so appointed.
Learned counsel for the petitioner was heard, but he could not point out any illegality in the impugned recruitment process, warranting interference of this Court in constitutional jurisdiction.
20. Learned counsel for petitioners in Writ Petitions No. 600-A/2021, 874-A/2021, 1052- A/2022, 171- A/2023 and 247-A/2023 were heard at length, but they could not convince this court in reversing process of recruitment, except cases of petitioners No. 3, 7, 8 and 10 in WP No. 605A/2021 and that of petitioner in WP No. 1058A/2021. Except cases of the abovementioned petitioners, whose writ petitions were partially allowed, rest of the writ petitions were disposed of with the observations made above. Office is directed to send copy of this judgment to Secretary Establishment as well as Chief Secretary, Government of Khyber Pakhtunkhwa for necessary actions at their end.