2015 P L C (C.S.) 1455
[Balochistan High Court]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
MUHAMMAD EWAZ ZEHRI (BALOCH)
Versus
CHAIRMAN SELECTION COMMITTEE FORAPPOINTMENT OF DISTRICT AND
SESSIONS JUDGES and 10 others
C.P. No.447 of 2015, decided on 18th May, 2015.
(a) Constitution of Pakistan ---
----Arts. 199 & 33 ---Constitutional petition ---Civil service ---Appointment of Additional District
and Sessions Judges ---Written test of candidates ---Re-examination of ans wer sheets by the High
Court ---Discrimination ---Mala fide ---Effect ---Petitioner appeared in the written test but
remained unsuccessful ---Plea of petitioner was that he had been discriminated only on the basis
of caste and creed by the selection committee-- -Validity ---Petitioner had made an effort to
scandalize the Judges of High Court under the colour of parochial, racial and tribal approach---
Every unsuccessful candidate had tendency to say that he had performed well but assessed
poorly ---Request with regard to re -checking, re -evaluation and re -marking of solved papers
could not be acceded to without reasonable ground---No provision of law existed to allow
inspection or evaluation of the answer sheets or to show it to the person concerned---Petitioner
had participated in examination and had failed in it---Petitioner had no right to challenge the
proceedings on the ground of mala fide or violation of rules as he had failed to point out the
same--- Answer books were collected by the committee and got evaluated in a very confidential
and fair manner ---Experienced Judges with proven integrity were nominated for evaluation of
answer books ---Examiner while checking the answer sheets did not know the identity of the
candidates as same were coded in order to ensure th e secrecy ---No question of discrimination
had arisen as examination was held in a fair, transparent and confidential manner ---Only seven
candidates had obtained more than 50% marks and remaining eighty eight candidates secured
less than the qualifying mark s---Examiners had evaluated the answer sheets with care and best of
their knowledge ---Petitioner had levelled baseless allegations of bias attitude on the part of
examiners without any reason ---No mala fide existed on the part of the members of selection
committee ---Answer sheets of petitioner had been evaluated fairly as per genuine assessment by
the examiners ---Re -evaluation of answer sheets could be ordered subject to strong ground that
same were not justly evaluated ---Malice and mala fides were sufficient grounds to vitiate all the
proceedings ---Courts could determine its (malice and mala fides) existence on probabilities to be
inferred from the circumstances ---No ground existed to believe that the answer scripts were not
justly evaluated ---High Court it self re -examined the answer scripts of the petitioner and found
that total had been rightly brought forward---No portion of any answer had been left unmarked ---
No mistake existed in the grand total on the cover of answer book and answer books had not
been changed ---Examination in question had been conducted by a duly constituted committee ---
Candidates who had qualified for interviews belonged to indigenous tribes and to the ethnicity of
the petitioner ---Constitutional petition was dismissed in limine.
Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676
and Haroon -ur-Rashid v. Registrar Balochistan High Court, Quetta 2013 PLC (C.S.) 81 rel.
(b) Mala fides ---
----Malice and mala fides were sufficient grounds to vitiate all the proceedings ---Courts could
determine their existence on probabilities to be inferred from the circumstances.
Petitioner in person.
Date of hearing: 14th May, 2015.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. --- The instant writ petition has been
filed by the petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan 1973
("the Constitution"), through which the following prayer has been solicited:
"It is, therefore, respectfully prayed that
1. paper -I of the petitioner ma y kindly be re -evaluated/re -marked/re- checked through
third -party.
2. respondents Nos.3 and 4 may kindly be declared disqualified as they are competing on
lawyer's seat.
3. Respondent No 9 as a failed candidate may not be interviewed.
4. Respondent N o.10 may kindly be terminated from his post of Additional District and
Sessions Judge as incompetent.
5. The interview of impugned successful candidates on 15 May, 2015 may kindly stayed
(sic.) till final decision of the instant petition in the interest of justice and fair play.
6. Any other relief which this honourable court thinks just and proper may kindly be
granted."
2. Petitioner, Muhammad Ewaz Zehri, Baloch, a practicing lawyer at Quetta, had appeared in the
written test held by the Selection C ommittee of this Court, consisting of four Hon'ble Judges,
headed by the Hon'ble Senior Puisne Judge on 29th and 30th April, 2015 and remained
unsuccessful. It is case of the petitioner that though he attempted all the questions, yet the merit
list prepare d by the Selection Committee is not according to the expectation of the petitioner.
According to the petitioner, the preparation of merit list is the result of favouritism, nepotism and
he has been discriminated against only on the basis of caste and creed by the Selection
Committee. In such state of affairs, he has prayed for re -evaluation of his answer sheet through a
third -party.
3. After listening to the petitioner, having gone through the available record, the relevant law and
precedents referred to, we are constrained to observe that filing of the instant petition is nothing,
but an effort to scandalise the Hon'ble Judges of this Court by the petitioner. It seems that the
petitioner has made a dishonest attempt to convert his failure in success under the colour of
parochial, racial and tribal approach, which is against the spirit of the Constitution, in particular
Article 33 of the Constitution, that too, on the part of an advocate of the Hon'ble Supreme Court.
4. The petitioner submitted that the respondents may be directed to produce entire record of the
other candidates, who have been declared qualified so as to make comparison of the marks to the
petitioner given by the Examiners vis -a-vis other candidates. A s per the petitioner, the perusal of
answer sheet of the petitioner if compared with the standard answers, it can easily be inferred
that the Examiners have examined the answer sheet carelessly and awarded reasonably low
marks knowingly or unknowingly. The y have not checked the answer sheet properly, therefore,
the respondents be directed to re -check the answer sheet of the petitioner. In our considered
view, every unsuccessful candidate has the tendency to say that he had performed well but
assessed poorly . It may be observed that the request in connection with the solved papers by way
of re -checking, re- evaluation and re -marking cannot be exceeded to without reasonable grounds,
because it would tantamount to opening a pandora box, thereby every student wil l refer to the
steps not in consonance with the law. There is no provision in the law to allow inspection or
evaluation of the answer sheet or a provision to show it to the person concerned. While holding
this view, we are fortified by the observations made by the Hon'ble Supreme Court of Pakistan in
the case of "Board of Intermediate and Secondary Education, Lahore v. Saima Azad, (1996
SCMR 676), which read as under: ---
"We are unable to accept the above contention. The contention of the learned counsel for
the respondent if accepted will lead to dangerous consequences, as it will open the door
for every unsuccessful candidate to challenge the result of his examination in Court thus
involving the educational institutions into unending and unethical litiga tions and bringing
the whole system of examination in vogue, at stake. The solemnity of educational
institutions and process of examination cannot be signified on the altar of expediency. As
earlier stated by us, the jurisdiction of the High Court under Ar ticle 199 of the
Constitution is meant for correcting the errors of jurisdictional nature. Therefore, in order
to succeed, the respondent must first satisfy that the issue brought by her before the Court
is justiciable under Article 199 of the Constitution. The learned Judge in Chambers,
therefore, could not pass the impugned order without first determining these basic
questions regarding jurisdiction of Court in the matter. We, accordingly, accept this
appeal, set aside the impugned order and direct that t he writ petition filed by the
respondent will be disposed of by the learned Judge in Chambers without asking for
production of the whole lot of answer books examined by the examiners who examine the
answer book of respondent. There will be no order as to c osts in the circumstances of the
case."
5. Once the petitioner has participated in examination and having failed in it, it does not lie
within his right to challenge the proceedings on the ground of mala fides or violation of rules,
which the petitioner failed to point out. The record reflects that the answer books were collected
by the Committee and got evaluated in a very confidential and fair manner. For evaluation of
answer books, senior experienced Hon'ble Judges with proven integrity were nominated by the
Hon'ble Chief Justice. The Examiners, while checking the answer sheets, did not know the
identity of the candidates, as the answer sheets were coded by the Chairperson of the Committee
before giving those to the Examiner, in order to ensure the secr ecy as per the prevalent practice.
Thus, the process ensures fair evaluation of answer sheets, strictly based on performance of the
candidate. Since the exam is held in a very fair, transparent and confidential manner, as such, no
question of discriminatio n arises in the peculiar circumstances of the case.
6. The record reveals that out of 95 candidates, only 7 candidates have obtained more than 50%
marks and the remaining 88 candidates secured less than the qualifying marks. Therefore, it is
clear that every candidate secured the marks as per his performance. The Examiners have
evaluated the answer sheets with utmost care and best of their knowledge. The petitioner is
acting as a super examiner and not only challenged the knowledge and wisdom of the Exami ners,
but also the Principal Examiner. He has also levelled baseless allegations of bias attitude on the
part of the Examiners, that too, without any reason. The transparency and the mechanism
evolved by the Members of the Committee is also evident from th e fact that one Mr. Muhammad
Yahya son of Dr. Muhammad Qasim is the real brother, whereas one Mr. Ahmed Ali son of Mir
Muhammad Ibrahim is brother -in-law of the sitting Hon'ble Chief Justice, who could not succeed
in the instant examination. Similarly, one Asadullah son of Saifullah, who happened to be
brother -in-law of one of the sitting Hon'ble Judge, a member of Examination Committee of this
Court, also remained unsuccessful.
7. So far as the contention of the petitioner regarding respondents No.3 and 7 is concerned,
admittedly, presently they are holding the position of Additional District and Sessions Judges.
They were allowed to participate in the instant examination on the strength of their standing as
practicing lawyers, prior to joining their rece nt position. This question came up for consideration
before a division bench of this Court in the case of "Haroon- ur-Rashid v. Registrar Balochistan
High Court, Quetta" (2013 PLC (C.S.) 81), wherein it was observed: ---
"9. In respect of the applications submitted by the Assistant District Attorneys neither
Rules 5 nor Rule 7 of the 2002 place any restrictions upon Assistant District Attorneys
for applying to the posts of Additional District and Sessions Judges. The advertisement
nor the subsequent Notific ation also did not disallow such persons from applying. Rule 7
of the 2002 Rules requires that an application should be a law graduate from a recognized
University and should have at least five years practice as an Advocate. Accordingly, if an
Assistant Di strict Attorney is a law graduate and has practiced as an Advocate for a
period of five years he/she would be entitled to apply for such post. To hold otherwise
would be to contravene Article 18 and sub -Article (1) of Article 25 of the Constitution of
Pakistan. The same benefit would also be available to all other applicants who may not
have been considered by the Registrar and who have not filed petitions, provided they
meet the qualification and experience as stipulated in Rule 7 of the 2002 Rules. The
Registrar is accordingly directed to reconsider all those applications that were rejected on
the ground that the applicants were in any service and to include all such names in the
list/s of eligible candidates, provided they meet the stipulated qualificatio n and
experience set out in the applicable rules."
8. The petitioner has raised a plea of mala fides against Members of the Selection Committee on
the ground that he was discriminated on the basis of caste and creed. We are afraid that presently
the Hon' ble Chief Justice of this Court, one of the Member of the Selection Committee as well as
Registrar of this Court also belong to the ethnicity of the petitioner, as such, the allegation of
mala fides on the part of the Members of the Selection Committee and establishment of this
Court seems to be baseless, misplaced and misconceived and it can easily be inferred from the
nature of the said allegations that an attempt has been made by the petitioner just to scandalise
and dispute the process of appointments due to his failure in the examination in question.
9. We have no reason to hold that there was any mala fide on the part of the Members of the
Selection Committee either in conducting the written examination or in the assessment of the
answer sheets by th em. The petitioner has been found to have failed miserably in Paper -I, even
upon re -evaluation of the marks sheet, the allegation made by the petitioner against Members of
the Selection Committee are bereft of any substance and are devoid of merit. We have no
hesitation in holding that the answer sheets of the petitioner had been evaluated fairly as per a
genuine assessment by the Examiners.
10. Although the petitioner has failed to show any provision of law, entitling him to ask for re -
checking or re -evaluation of the answer sheets, however, we are of the opinion that re -evaluation
of the answer sheets can be ordered, subject to the condition that there should be strong grounds
to believe that the answer scripts were not justly evaluated. It is true that bias, malice and mala
fides are sufficient grounds to vitiate all proceedings, but it is equally true that the Courts, while
interfering with the discretion exercised by any authority, have to be cautious and have to
ascertain from the facts and circumstan ces the exercise of real likelihood of bias. Where, in
cases, it is difficult to prove bias, the Court determines its existence on probabilities to be
inferred from the circumstances. While considering the case in hand on the touchstone of the
aforemention ed settled principle of law, there is absolutely no ground to believe that the answer
scripts were not justly evaluated.
11. It may be observed that in spite of lacking reasonable grounds for re -checking, re evaluating
and re -marking, while keeping in vi ew the centuries old principle that "let justice prevail though
the heaven would fall", we ourselves re -examined the answer scripts of the petitioner and found
that total has been rightly brought forward, no portion of any answer has been left unmarked,
there is no mistake in the grand total on the cover of the answer book and the answer book has
not been changed. The exam in question has been conducted by a duly constituted Committee,
consisting of four Hon'ble Judges of this Court, headed by Hon'ble Senior Puisne Judge, after a
cumbersome process within the shortest possible period and no one has raised finger towards the
transparency observed during the process, except the petitioner, that too, with mala fides, as
observed hereinabove. The record reveals that out of 95 candidates, only 7 have been qualified
for interviews and needless to observe that all the candidates, who have been qualified for
interviews, belong to indigenous tribes of Balochistan and the candidates, securing second and
fourth position, belong to the - ethnicity of the petitioner.
For the discussion made hereinabove, since the possibility of success of the instant petition is not
visible, thus, the same, being without any merit, is dismissed in limine.
ZC/76/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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