Syed MUHAMMAD RAZA vs GENERAL MANAGER, WAPDA and others

' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the appointment of Accounts Assistants in the Water and Power Development Authority.

2. In response to a public notice appearing in the Press on 23-6-1988, the petitioner applied for being appointed as an Accounts Assistant. These appointments are governed by the Pakistan Water and Power Development Authority Accounts Service Rules, 1966, according to which the appointments to the posts of Accounts Assistants/Accounts Clerk are to be made by the Manager Finance on the recommendation of a Selection Committee strictly in accordance with the conditions prescribed in items Nos. 8, 9 and 10 of Appendix 'A' of Pakistan Water and Power Development Authority Accounts Service Rules, 1966. The Water and Power Development Authority vide its memorandum No, CM(Admn)/AD(E-II-B)07683/12502-13621, dated 25-1-1988 has laid down guidelines for recruitment of staff in BPS 1 to 15 which require the selection to the post of Accounts Assistant to be made on the basis of examination-cum-interview. It is provided in the aforesaid memorandum that in such a selection, 50 marks will be reserved for written test while 10 for knowledge of Islam and 15 for personality, traits and other matters. It appears, however, that subsequently, the General Manager Finance agreed to the proposal to enhance the marks for written test and interview to 100 each. According to the petitioner, he had secured first position in the written test but was not selected in view of the result of the interview as notified by the Selection Committee. He has now come to this Court by filing this Constitutional petition.

3. In the written statement filed by the respondents none of these facts have been disputed. It has, however, been stated that the Selection Committee with the approval of the Chief Manager had decided to enhance the marks reserved for written test as also interview from 50 to 100 and from 25 to 100 respectively and that the petitioner has no right to insist upon his selection as he failed to receive the qualifying marks in the interview.

4. Mr. Talib H. Rizvi, petitioner's learned counsel has raised two contentions; (i) that according to the policy for selection laid down in the memorandum dated 25-1-1988, the post of Accounts Assistant being in BPS-11 has to be filled on the basis of selection carried out through written test- cu interview for which 50 and 25 marks respectively were reserved and neither the Selection Committee nor the Manager (Finance), could have altered this mode of selection which had been laid down by the Authority and (ii) that in any case reservation of 50% of the marks for performance in interview was discriminatory and unfair. In the same context it has been argued that the petitioner has been deprived of his due right through deceitful means.

5. The learned counsel for the respondents has reiterated the stand taken by them in the written statement.

6. Both the contentions raised by the petitioner's learned counsel are well founded. In para. 6 of the amended petition, it has been stated that the criteria for selection laid down by, the WAPDA was a written test and interview For which 50 and 25 marks respectively were reserved in the policy memorandum itself. The correctness of this assertion has been admitted in the corresponding para. Of the written statement. It is even otherwise borne out by the office memorandum dated 25- 1-1988 issued by the Water and Power Development Authority itself laying down the guidelines for recruitment of staff. In these circumstances neither the Selection Committee nor its Manager (Finance) could proceed with the selection on the basis different from the one specified in the policy laid down by the Authority itself. Although there may not be any exception to the enhancement of the marks for the two methods of selection but while doing so their ratio and proportion could not be changed. The-Selection Committee should have kept the formula laid down for selection in mind according to which out of total 75 marks, 50 were reserved for written test and 25 for interview. That being so, even if the total marks were to be enhanced, it should have been done in the same manner as laid down in the memorandum in question. Neither in the written statement nor during the course of arguments, it has been explained by the respondents or their learned counsel as to what was the necessity of changing the ratio of the marks for written test and interview. This lends support to the argument of the petitioner's learned counsel that the revised formula was unauthorized adopted so as to facilitate the employment of those whom the Selection Committee wanted to induct for reasons other than on merits.

7. According to section 17 of the Water and Power Development Authority Act, it is the Authority which is empowered to employ such Officers and servants as it may consider necessary on such terms and conditions as it may deem fit. Section 18 of the Act authorizes the Authority to prescribe the procedure for appointment and terms and conditions of service of its Officers and servants. It is in the exercise of this power that the Office Memorandum dated 25-1-1988 had been issued. No person other than the Authority, therefore, had any power to vary the contents thereof or to go against it.

8. The reservation as high as 50% of marks which is likely to affect the entire nature and complexion of the selection has been deprecated and disapproved by this Court in its recent judgment in Writ Petition No,1488 of 1991, decided on 15-1-1994 in which it has been held that adoption of such a procedure would be unfair, discriminatory and not sustainable. 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 100 in the written test but was not selected on account of 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 assessm ent 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: ' In view of what has been stated above, this petition is allowed and the selection of respondents Nos.4 to 21 is declared to be without lawful authority and of no legal effect. Respondents Nos.1 to 3 shall now proceed afresh in the matter in accordance with law.

' No order as to costs.