CH. KHURSHID AHMED, J.- This judgment shall dispose of W.P.Nos. 8422/95, 6991/95 and 6420/95 as the same question has been agitated in all the three writ petitions.
2. Applications for filling in vacancies of Inspectors in BPS-11 were invited from graduates who were eligible in view of the terms and conditions as mentioned in the proclamation issued by Central Board of Revenue Islamabad as published in daily Jang Lahore in its issue of 11.7.94. The last day for submitting the application was 15th day from the issuance of the proclamation. Vacancies were also to be filled in Faisalabad Zone, according to the said notice inviting applications, the petitioners in W.P.Nos. 6420795 and 6991/95 were the applicants amongst others.
3. The applicants were to take written test. One paper was to be of mathematics and the other of general knowledge. Both the papers had I00 marks each. The Department reserved other 100 marks for viva voca.
4. In all 377-candidates took the written examination 23 candidates qualified the written test. Out of the 23, Tariq Masooda Syed Ameer Ali, Zahid Hamid. M. Tanveer, Rai Shahzad Ahmed, M. Waqar Ali, Ghulam Hussain, Khizar Hayat, Tariq Sarwer, Aijaz Hussain, Sajjad Hussain and Ahmed Shafiq were selected on the basis of merit list prepared after the interview. Six of the last mentioned candidates were recommended for relaxation of one or the other rule. Earlier mentioned six candidates were issued appointment letters. Relaxation in age was also granted by the competent authority.
5. It has been submitted by the learned counsel for the petitioner that by 26.7.1994 in all 689 applications were received in the office of the Commissioner of Income Tax Faisalabad and 26th being the 15th day no more applications could be entertained thereafter. The applications of Muhammad Shafiq and Tariq Masood were allegedly obtained subsequent thereto. Syed Ameer Ali, Waqar Ali Khan, Sajjad Hussain. Rai Shahzad Ahmed and Ahmed Shafiq Illahi etc. Were also issued notices to take the written test although their applications were neither entered in the register nor appeared to have been received in the office before the date fixed and on the said premises it has been contended that the last mentioned nine persons could not validly be allowed to take the test and that the issuance of call up notices to those nine persons were deliberate, an at of patent mala fide and favouritism and/or on the basis of recommendations from the higher authorities.
Contravention of SRO/513/1/93 dated 19.6.1993 was also alleged.
6. It was also contended by the learned counsel for the petitioners that almost all the three petitioners in writ petitions in hand had secured more marks in the written test and that the favourites were awarded more marks in viva voca and that there was no transparency as no rule of consistency was applied and the transparent result of written test was thereby undone through subjective assessm ent by the selection committee and that the merit list so prepared was liable to be set aside, it was also prayed that nine candidates mentioned supra be excluded from consideration as their applications for the post were not received within the the fixed by the competent authority.
7. The potions have been resisted by the respondents. The private respondents have challenged the maintainability of the writ petitions on the ground that the dispute related to service and was outside the ambit of jurisdiction of this court in view of provisions of Article 212 of the constitution of the Islamic Republic of Pakistan, 1973. On merits it was contended that all the. Nine persons whose names were sought to be excluded from the list of candidates had duly applied and were issued roll numbers and have taken tests and that their names could not be excluded ai this stage and that the selection committee had awarded the marks in interview on the basis of criteria as laid down by them and that the merit list was absolutely in accordance with the rules.
8. Mr. Muhammad Ilyas Khan, Advocate appearing on behalf of the Department placed the answer sheets of the private respondents as also the writ petitioners before me in chamber and submitted that the result of written test was not only transparent but was sacrosanct. The marking was done purely on the material appearing in the answer sheet and no specific allegation of mala fide has been made and no presumption of malafide could be drawn in the circumstances of the case. So far as the inclusion of nine candidates against whom the objection of non-receipt of application within the the prescribed the learned counsel submitted that no contravention of any rule or the limit was made by respondent No. 2 and that the call up notices were sent on the basis of record.
Regarding award of marks on the basis of viva voca the learned counsel has contended that the marks were awarded in different sub heads and the transparency could not be doubted.
9. I have considered the arguments of the learned counsel addressed at the bar and had the privilege of looking into the answer sheets of respondents as also the petitioners and I am satisfied that so far as the award of marks on the basis of written test is concerned, the same is based on the material written by, die respective candidates and was transparent. No allegation of any malafide has been alleged against the Examiner who awarded marks and as such no exception can be taken to the award list based on written test. Reference in this regard can be made to "Ashok Kumar Yadav Vs.. State of Haryana" (A.I.R. 1987 S.C. 454). The issuance of call up notices to take written test to nine candidates who allegedly had not made their applications within the the prescribed cannot be objected to at this stage. The objection was not raised at the the of written test nor at the the of declaration of result on the basis of written test. The right had accrued to the said candidates after they had taken the-test and qualified the same. The said objection has therefore, no force and is repelled.
The objection regarding non-maintainability of the writ petition is also of no force. .The bar as contained in Article 212 of the Constitution of Islamic Republic of Pakistan was not applicable in the present case as the terms and conditions of service would only apply to civil service, in the present case procedure for selection has been impugned and therefore, the writ petitions are held to be maintainable.
10. There remains the vital question of subjective assessment, and upsetting of the merit on the basis of written test through reservation 33.3% marks for viva voca. The selection committee though had the authority to award the marks but the said authority cannot be approved as unbridled. Some limitations are to be fixed for exercise of the authority. I have looked into the award list of viva voca and I am to record with dismay that the candidates who secured lesser marks in written test were awarded more marks on the questions put relating to the written test. No sub division was made regarding educational qualifications of the candidates nor any merit was attached to distinction or the better division acquired in the examinations of matric. Intermediate, B.A/B.Sc. And/or Post Graduation. No transparency is credible and an attempt has been made by the Members of the committee to upset the merit list prepared on the basis of written test. Had the selection committee apportioned marks on the basis of grades/divisions obtained by the candidates in the educational qualifications and had they proportionately awarded marks regarding questions on written papers there could be some reason in the argument of the learned counsel for respondent No. 2 that the transparency was also available in the award list prepared on the basis of marks granted in viva voca. That too was not all that can be said regarding award of marks by selection committee on the basis of interview/viva voca. it was all a methodology adopted in a malafide manner to upset the merit of the candidates and as 33.3% marks were available to them, they were successful in upsetting the merit and subjective assessment prevailed ex-facie. In "Syed Mohammad Raza Vs. General Manager Wapda and others" (1994 M.L.D. 1647) it was observed:- ".... It has been observed that although much can be said for holding selection on the basis of interview but keeping in view the dictates of justice and equality clause in the Constitution the reservation of marks for interview should not be of such a high percentage which could lead to arbitrariness and unfairness, which must be avoided. In the present case, injustice done to the petitioner is manifest. He stood first by obtaining 79 marks out of I0O in the written test but was not selected on account of 1 awarding of only 36 marks in the interview. One of the reasons for striking down the selection on the basis of interview is. That no record of reasons for awarding marks in the interview is maintained as it based purely on the subjective assessment by the Selection Committee during the course of which the misuse of powers cannot be ruled out. For this reason also the impugned selection cannot be upheld".
11. In view of what has been stated above, the writ petitions are accepted only to the extent of merit list prepared on the basis of viva voca. The merit list so prepared is declared to be of no legal effect. However the candidates admitted to the written test are held to be validly admitted candidates and the award of marks on the basis of written test is also upheld. Direction is issued to the selection committee to hold viva voca/interview afresh by issuing call up notices to all the 23 candidates declared successful on the basis of written test and to award the marks to them keeping in view the previous acadmic record, performance in the written test and the ancilliary facts by recording the reasons for marks awarded to individual candidates. The exercise shall be completed within one month.
12. There shall be no order as to costs.