Order Sheet

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. P. No. D – 916 of 2015

Before:

Mr. Justice Muhammad Junaid Ghaffar

Mr. Justice Zulfiqar Ali Sangi

Date of hearing: 07-09-2021

Date of decision: 07-09-2021

Mr. Achar Khan Gabol, Advocate for the petitioners.

Mr. Zulfiqar Ali Naich, Assistant Advocate General Sindh.

O R D E R

Muhammad Junaid Ghaffar, J. – Through this petition, the petitioners have sought the following relief:

(a) To direct the Respondents to issue appointment orders to the Petitioners, as they being have required qualifications, applied for the posts of Constables, appeared in Physical as well as Written Testes and successfully qualified the same, and their names are very much appearing in Merit List.

(b) To call the Record from the Respondents in respect of recruitment made by them for the posts of Constables, so that the truth should come on surface that who has applied for the said posts of Constables, who appeared in Physical and Written Tests and who has qualified the same, then pass an appropriate order by issuing strict directions to the Respondents to make recruitment on merits.

(c) To grant any other relief, which this Honourable deems fit and proper in circumstances of the case.

(d) To award the costs of this Petition.

2. Learned Counsel for the petitioners submits that pursuant to an advertisement for appointment of Constables in Sindh Police, the petitioners appeared in physical test, and thereafter, in written test and were declared successful. However, surprisingly, they were failed in the viva voce examination. According to him the result of the interview tests should be called and scrutinized as the petitioners were never asked any questions except name, age and parentage. He has prayed for allowing the petition.

3. On the other hand, learned AAG has opposed this Petition and has relied upon comments filed by the respondents and has argued that the Petitioners had failed in the interview; therefore, no case is made out.

4. We have heard the learned Counsel for the petitioners as well as learned AAG and perused the record.

5. After issuance of notice, comments have been filed by the concerned respondents and it has been stated that insofar as petitioners are concerned, they had failed in the final interview-viva voce examination. In matter of fitness, be it physical or mental and especially in appointments as Constables, this Court at this belated stage, cannot exercise any discretion as considerable time has lapsed. It is a matter of record that the petitioners have failed in the viva voce examination.

6. As to the argument that interview test record be summoned and scrutinized, it would suffice to observe that we have not been able to persuade ourselves as to how the relief being sought can be granted in respect of Viva-voce/Interview Examination of the petitioners, in which, according to them, they ought to have been declared successful, whereas, the respondents have failed them, as apparently the verbal response of the petitioners in a Viva-voce Examination and Interview cannot be looked into by us in our Constitutional jurisdiction, as it is entirely dependent on the factual determination and the contention of the parties. Even otherwise, what answer is given by a candidate in an Interview/Viva-voce Examination, the same is a matter of verbal response and no record is apparently required to be maintained by the concerned appointing authority. In these circumstances, we are of the considered view that the Petition is not maintainable. Reliance in this regard may be placed on the case reported as Muhammad Ashraf Sangri v. Federation of Pakistan (2014 SCMR 157), wherein the Hon’ble Supreme Court has been pleased to observe as under:-

“Essentially an interview is a subjective test and it is not possible for a Court of law to substitute its own opinion for that of the Interview Board in order to give the petitioner relief. What transpired at the interview and what persuaded one member of the Board to award him only 50 marks in something which a Court of law is certainly not equipped to probe and to that extent we cannot substitute our own opinion with that of the Interview Board. Obviously if any mala fides or bias or for that matter error of judgment were floating on the surface of the record we would have certainly intervened as Courts of law are more familiar with such improprieties rather than dilating into question of fitness of any candidate for a particular post which as observed above is subjective matter and can best be assessed by the functionaries who are entrusted with this responsibility, in the present case, the Public Service Commission. For this proposition the case of Federation of Pakistan through Secretary Establishment Division v. Ghulam Shabbir Jiskani (2012 SCMR 1198) can be referred to.”

Accordingly, the Petition being misconceived is hereby dismissed.

J U D G E

Abdul Basit