IN THE HIGH COURT OF SINDH, KARACHI

 
Constitutional Petitions No.D-39 of 2011

 

 

Present                 Mr.Justice Muhammad Athar Saeed.

                             Mr.Justice Muhammad Ali Mazhar.

 

 

Petitioner                        :                 Darakhshan Jahan

                                                  

                                           Versus

 

Respondents                    :                    Province of Sindh & others

 

Constitutional Petitions No.D-41 of 2011

 

 

Petitioners                        :                Ghulam Abbas Memon & others

                                                 

                                           Versus

 

Respondents                    :                    Province of Sindh & others

 

 

Date of hearing              :                  04-02-2011

 

 

Mr.Abid S. Zuberi, advocate along with M.Umer Lakhani and Mr.Salahuddin Gandapur, advocates for the petitioners in C.P.No.     D-41 of 2011.

Mr.Altaf Hussain, Additional Member Inspection Team-I,

Mr.M.Imran Khan, Chief Coordinator South Karachi for respondent No.4 (NTS)

Mr.Wasique  Ahmed Kehar, Advocate for the petitioner in C.P.No.   D-39 of 2011

Mr.Naveed Ali Kokhar, advocate

Mr.Saifullah, A.A.G. Sindh

                                                -------

JUDGMENT

Muhammad Ali Mazhar – J  By this common  order, we intend to dispose of Constitutional Petition No.D-39 of 2011 and Constitutional Petition .No.D-41 of 2011 as both the petitions have been filed against common cause of action and based on common question of law and facts.

 

2.Brief facts of the case are that an advertisement was published in the newspapers on 27.4.2010, inviting applications for the appointment of Civil Judges/Judicial Magistrate, which was issued by Additional Member Inspection Team-I, Sindh High Court, Karachi. In the advertisement, a prequalification criteria was mentioned that the candidates securing minimum 50% marks in the preliminary test M.C.Qs  will be eligible for the 2nd written test and the candidates securing minimum 50% marks in the written test will be eligible for the interview.

 

3.The case of petitioners is that after complying with the requisite formalities, they appeared in the preliminary test on 29.12.2010 for the recruitment of Civil Judge/Judicial Magistrate, conducted by the Sindh High Court through National Testing Services (NTS).

 

4.Along with C.P.No.D-41 of 2011, an admit card of one of the petitioners is attached, which was issued on 10.12.2010 by the Additional Member Inspection Team-I of this court, whereby the petitioner was asked to appear in the preliminary written objective test of an hour scheduled to be held  on 29.12.2010 from 3:30 to 4:30 p.m. at Lawn of Sindh High Court,  Karachi.  With  the  same  petition,  a  

 

question paper book is also attached which shows that duration of test was 120 minutes for 100 questions. The common grievance of the petitioners is that when the question book and answer sheet were handed over to the candidates, it was clearly written on the question book that duration of test was 120 minutes for attempting 100 questions, but an announcement was made that the duration of test will be 60 minutes only. Since the test was so lengthy, therefore, it was not possible for them to consciously attempt 100 questions within 60 minutes.

 

5.The petitioners have prayed for the directions against the Provincial  Selection Board and Additional Member Inspection Team-I of this Court to re-conduct the preliminary test and also declare that the preliminary test was designed for 120 minutes but the same was directed  to be conducted in 60 minutes which was illegal and unfair and against the scheme and policy of N.T.S. Institution.

 

 6.On 10.1.2011, a pre-admission notice was issued to all the respondents with further directions to respondent No.3 to file reasons as to why the duration of the test was reduced from 120 minutes to 60 minutes and also provide the court further details of the candidates, who had managed to finish the test in 60 minutes. The respondent No.3 submitted a compliance report on 20.1.2011 in which it was mentioned that due to typographic error in the printed instructions on the question paper book, 120 minutes were printed instead of 60 minutes, however, before starting the paper, announcement was made more than once by the N.T.S officials, requesting the candidates to correct and read 120 minutes as 60 minutes.

7.In paragraph (4) of the compliance report submitted by Additional M.I.T-I, it is mentioned that out of 1777 candidates, 486 candidates attempted 100 questions and finished the test in 60  minutes, whereas 582 candidates attempted 90% to  99% questions. The ratio wise statistical position of all the candidates who attempted different percentage of questions in 60 minutes preliminary test is as under:-

 

S.NO.

QUESTION ATTEMPT

NO.OF CANDIDATES

RATIO

1.

100%

486

27.35%

2.

90% to 99%

582

32.75%

3.

80% to 89%

178

10.02%

4.

70% to 79%

169

9.51%

5.

60% to 69%

129

7.26%

6.

50% to 59%

116

6.53%

7.

Less than 50%

117

6.58%

 

Total candidates appeared

1777

100%

  

8.On behalf of the respondent Nos.2 and 3, Registrar, Sindh High Court filed his comments in which a preliminary objection was raised that the petitions are not maintainable and hit by Article 199 (5) of the Constitution of Islamic Republic of Pakistan, 1973 as the order for conducting one hour written objective test (M.C.Qs) for the posts of Civil Judge/Judicial Magistrate is an administrative act of this court, which is fully protected under the Article 199 (5) of the Constitution of Islamic Republic of Pakistan. It is further mentioned in the comments that the definition of word "Person"  provided in Sub Article (5) of Article  199 of the Constitution of Islamic Republic of Pakistan excludes Supreme Court and High Courts from the purview of writ jurisdiction and all actions, orders and acts are protected. He further submitted that mechanism/methods for appointment of Civil Judge/Judicial Magistrate is provided in Sindh Judicial Service Rules, 1994 and the said method was approved and consented by the learned members of learned Administrative Committee.

 

9.It is further submitted in the comments that the test paper was in accordance with the verbal guidelines and directions made by the members of Provincial Selection Board, therefore, the petitioners have no right to raise any objection. The question paper was designed to be solved in 60 minutes but due to typographic error on the question paper, 120 minutes were printed instead of 60 minutes.

 

10.The Chief Coordinator (South), National Testing Services, Pakistan, Karachi also filed his counter affidavit and submitted that the question paper was prepared in the manner that it could have been solved in 60 minutes, but due to typographic error  120 minutes were printed instead of 60 minutes. The test taken from the petitioners cannot be compared with any type of admission test, as it was aptitude test and does not call for questions pertaining to any specific subject. He further submitted that this test was made for initial screening to determine the competency of the candidates in English Language, General Knowledge and their I.Q. level and this test paper was prepared in accordance with verbal guidelines and directions issued  by members of the Provincial Selection Board.

 

11. The learned counsel for the petitioners Mr.Abid S.Zuberi argued that it is quite common and routine procedure in such type of preliminary tests, that prospectus/syllabus are provided to the candidates  at the time of submission of their applications, so that they may get some hints from which area of knowledge or of subject, the test would be conducted, but in the present matter, the respondent Nos.2 and 3 did not issue any syllabus to the candidates before the test and all of a sudden a lengthy paper was given  with the directions to complete the same  within 60 minutes, which was humanly impossible for the candidates to attempt the same with due care and consideration.

 

12. He further argued that the question book was comprising more than 20 pages and the answer sheet was also time consuming. Sudden change in duration of test on the spot caused serious prejudice to the petitioners and other candidates, who had appeared in preliminary test and they also lost their proper concentration.  The reduction in time is totally unfair and amounts to depriving the petitioners from a fair right to attempt the preliminary test with full concentration and application of mind. It was humanly not possible for the petitioners to attempt 100 questions in 60 minutes only.

 

13.So far as the objection raised by the respondent Nos.2 and 3 in the comments relating to the bar contained under Sub Article  (5) of Article 199 of the Constitution is concerned, the learned counsel for the petitioners argued that by this petition the petitioners have not impugned any judicial or administrative functions of this court, therefore, the bar contained in the above Article does not apply in the present case. He further argued that under Article 212 of the Constitution, it is clearly provided that the proceedings before the Supreme Judicial Council, its report to the President and removal of judges, under Clause (6) of Article 209 shall not be called in question in any court but the hon'ble Supreme Court of Pakistan in the case of hon'ble Chief Justice of Pakistan entertained  the petition in spite of specific bar and exercised its power of judicial review. In support of his arguments he relied upon the following case law:

 

(a)PLD 2010 S.C. 61 (Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others). In this case the hon'ble supreme court held that the Supreme Judicial Council is a forum created by the Constitution but the Constitution itself has refused to grant it the status of court. Findings of the Supreme Judicial Council and its report to the President are only "recommendatory in nature". Mere incorporation of ouster clause in the Constitution or in any other law for that matter, did not by itself preclude a court from entering the arena sought to be protected as the judicial power, being inherent in the Supreme Court, it was not its privilege but in fact its obligation to examine such like ouster clauses and then to determine the extent of claimed immunity. No  amount of immunity would ever be sufficient to protect acts which had been taken mala fide or which had been taken without jurisdiction or which were coram non judice. The court respected the ouster clause wherever they occurred in the Constitution or in any other law, it was on account of the same respect that Supreme Court would interpret such like clauses as not extending immunity to acts which were coram non judice or which were taken mala fide or the ones which had been done without jurisdiction.

 

 

(b)PLD 1976 S.C. 315 (Abrar Hassan V. Government of Pakistan & another). In this matter the divisional bench of High Court of Sindh and Baluchistan, Karachi dismissed the constitution petition against the federation and the learned Judge of this Court. It was held that maintenance of traditional high degree of comity among judges of superior courts essential for smooth and harmonious working of superior courts writ should not  issue from one high court to another high court or from one Judge to another Judge of  same High Court.

          "Per Muhammad Yaqub Ali, C.J. (Anwarul Haq, J. agreeing)

 

Another reason why writs should not issue from one High Court to another High Court and from one Judge to another Judge of the same High Court  is that such a course will destroy the traditional high degree of comity among the Judges of superior Courts which is essential for the smooth and harmonious working of the superior Courts. The provisions of Article 199, spell out that a writ will not issue from one Judge of a High Court to another Judge of the same Court. Article 199(1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local authority. A High Court cannot therefore issue a writ to a person performing functions in another province. This restriction applied equally in a case of High Courts as the Judges who constitute these Courts perform their functions outside the territorial jurisdiction of each other. The exclusion of High Court from the definition of 'person' is, therefore, not intended to a debar a High Court from issuing writs to other High Courts. This object is fully served by the primary condition laid down in Article 199(1). What then is the purpose of clause (5) of Article 199. Obviously, not to debar a High Court from issuing a writ to itself. A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdiction may in the final event, be challenged, by litigants, under Article 199 as without lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias mala fides, etc."

 

 

14.The other learned counsels appearing for the petitioners have adopted the arguments of Mr.Abid S. Zuberi and also argued that the reduction in time from 120 minutes to 60 minutes severely prejudiced the candidates and they were not allowed ample opportunity with proper peace of mind to attempt 100 questions, therefore, in all fairness, all the petitioners  should be afforded fair opportunity to reappear in the preliminary test for prequalification purposes.

 

15.Mr.Saifullah, the learned Assistant Advocate General, Sindh argued that the petitions are not maintainable in view of Sub Article (5) of Article 199 of the Constitution and the petitioners had no vested right or authority to impugn the mode and manner of preliminary test conducted under the guidelines of Provincial Selection Board on 29.12.2010. He further argued that this court can exercise powers only in respect of persons performing within the territorial jurisdiction of the court, functions in connection with affairs of Federation, Province or Local Authority and if a person defined in clause (5) of the Article 199 of the Constitution, whose act, action or proceedings before this court does not fall within the specified categories of person so defined, then it would clearly be not amenable to the writ jurisdiction of this court. In support of his argument he relied upon the following case law:-

 

(a) Unreported judgment of hon'ble Supreme Court in Civil Petition for leave to appeal No.394-K & 395-K of 2010 (The Administrative Committee v. Mohammad Wasim Abid and others). This Civil Petition for leave to appeal was filed against the judgment of learned divisional bench of this Court, reported in 2010 PLC  (C.S) 957 (Kamran Shehzad Siddiqui & 2 others v. Administrative Committee & 2 others). The brief facts of the case were that the petitioners appeared in examination in response to an advertisement published under the directions of the Administrative Committee for recruitment and selection for the vacant posts of Additional District and Sessions Judges. When the petitioners went to attend the test, they were informed that only 100 top candidates would be allowed to sit in the second test and there was no fixed percentage earmarking boundary between failure and success. The petitions were allowed with the directions that all those candidates, who secured more than 50% marks in the first test and who were not allowed to sit in the second test be given an opportunity of the second test and in the second test it was left upon the Administrative Committee to decide the pass percentage level and thereafter, a combined merit list of the two tests may be prepared in which only those persons would be included, who have secured more than 50% marks in the first test and also the percentage level decided by the Administrative Committee for the second test, thereafter, the selection process may be followed in accordance with law. This judgment was challenged by the Administrative Committee in the hon’ble Supreme Court which was set aside  with the order that the Administrative Committee of the Sindh High Court had absolute discretion and vast power to follow any equitable procedure  or to lay down different criteria of passing  marks in different tests, unless  specifically provided under relevant rules, which indeed shall have to be made applicable across the board to all the candidates and for such exercise of discretion, no interference is called for before any fora. This being the position neither on legal plane nor on merits private respondents could succeed before the High Court. The leave to appeal was converted into appeal and allowed.

 

(b) 2010 SCMR 632 (Muhammad Iqbal & others  v. Lahore High Court through Registrar and others). These civil appeals were filed against the judgment of Lahore High Court whereby the writ petitions were dismissed as barred by Article 199 (5) of the Constitution. The brief facts of the case were that an advertisement was issued by the learned Lahore High Court for 29 posts of Additional District and Sessions Judge, the petitioners qualified the competitive examination, but were not selected for the reasons that they did not fulfill the required length of practice. The hon’ble Supreme Court, keeping in view the condition laid down under Sub Article (5) of Article 199 of the Constitution held that this Sub Article is more pointed towards protecting the judicial actions/orders/steps  of this Court rather than it is judicial orders and agreed to the view taken by the learned High Court that all judicial orders passed by the High Courts can be challenged in accordance with the Constitution or the law. There was no need absolutely to enact the provisions of Sub Article (5) of Article 199 and that such provisions were given in the Constitution to protect, rather, the non-judicial orders of the High Courts and if such orders are allowed to be challenged before the same High Court, it would lead to creating ludicrous situations and hazardous consequences.

 

 

(c)  PLD 1999 Lahore 350 (Asif Saeed v. Registrar Lahore High Court and others). The common facts were involved in this matter were that the petitioner had applied for license to practice as an advocate with Lahore High Court under the provision of Section 27(c) of the Legal Practitioners and Bar Council Act, 1973. The license was declined to the petitioners by Punjab Bar Council for the reasons that the Lahore High Court in terms of afore mentioned provision had not granted the requisite approval which was a condition precedent for granting exemption. All writ petitions were dismissed by the learned full bench of the Lahore High Court with the observation that judicial orders of the Supreme Court and the High Courts on the jurisprudential plane, were already protected from the exercise of writ. It is only the administrative/executive or consultative functions/orders and acts which in fact have been saved under this Sub Article. By plain reading of Sub Article (5) and by applying settled rules of interpretation, High Court cannot be deemed to be conferred with two distinct characters i.e. one judicial, which is immune from the writ, and the other is administrative which is amenable to the writ.  Where a judge of the High Court, acts as Court, for and on behalf of the Court, it is Court by itself and has complete and absolute immunity, which is not dependent on the kind of jurisdiction he exercises. It is for this reason, that when a judge of this Court acts as a Company Judge under the Company Laws, or as a Judge dealing exclusively with the bank cases under relevant law he acts as High Court though conferred with a special power to decide the case of a particular nature. His orders are not amenable to the writ.

 

 

16.For the sake of convenience, the relevant provision of the Constitution is reproduced:-

 

            “199 (5). In this Article, unless the context otherwise requires, ----

“person” includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and 

                       

                        …………………………………………………………..

 

                        (a)……………………………………………………….

 

                        (b)……………………………………………………….

 

 

17. Article 260 of the Constitution, relates to the interpretation, by virtue of which, definition of 'person' includes any body politic or corporate but under Sub Article (5) of Article 199 of the Constitution, the Supreme Court, the High Courts or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan have been excluded from the definition of 'person' for the application of Article 199 of the Constitution.

18.The judgment relied upon by the learned counsel for the petitioners reported in PLD 2010 S.C. 61 is distinguishable to the facts and circumstances of the case in hand. In this case, the hon’ble Supreme Court did not dilate upon Sub Article (5) of Article 199 of the Constitution, and the ouster clause mentioned in the definition of person, but in this case the ouster clause mentioned under Article 211 of the Constitution was under  discussion, in which, the  hon’ble Supreme Court observed that Court respected the ouster clauses whenever they occurred in the Constitution or in any other law, it was on account of the same respect that Supreme Court would interpret such like clauses as not extending  immunity to acts which were  coram non judice or which were taken mala fide or the ones which had been done without  jurisdiction. In the same judgment the hon’ble Supreme Court further held that power to issue writ emanates from Article 199 of the Constitution which authorizes High Courts to issue writs and Article 184 (3) thereby in turn permits the Supreme Court to make orders of the nature mentioned in Article 199. A perusal of Sub Article (5) of Article 199 of the Constitution, reveals that while said Article allows issuance of writs inter alia, to all courts and tribunal of all kinds it kept certain Courts and Tribunals outside the said purview and commanded that no writ could issue to the Supreme Court of Pakistan, to a High Court and to a court or a tribunal established under any law relating to the Armed Forces. Significant omission of the Supreme Judicial Council from such protected arena is more than revealing in the matter of determining the vulnerability of the Supreme Judicial Council to writ jurisdiction.

 

19.We have examined both the petitions and found that no ground has been raised that the action of respondent Nos.2 and 3 is coram non judice, mala fide or the ones which had been done without jurisdiction. In the case of Asif Saeed v. the Registrar, Lahore High Court reported in PLD 1999  Lahore 350, the petitioner had challenged the administrative action of the Lahore High Court on the ground that he had applied for a license to practice as advocate in the Lahore High Court under the provision of section 27(c) of the Legal Practitioners and Bar Council Act, 1973. The license was declined to him by the Punjab Bar Council for the reason that  the Lahore High Court in terms of aforementioned provision has not granted the requisite approval which was a condition precedent for granting exemption. The writ petition was dismissed with the observation that judicial orders of the Supreme Court and the High Courts on the jurisprudential plane, were already protected from the exercise of writ. It is only the administrative/executive or consultative functions/orders and acts, which in fact have been saved under the Sub Article (5) of Article 199 of the Constitution. The same controversy was dealt with by the learned divisional bench of the Peshawar High Court and in the case of Kaleem Arshad Khan reported in 2004 PLC (C.S) 1558, the petitioner challenged the appointment and selection of Additional District and Sessions Judge. The learned Peshawar High Court held that the order of non-selection of the petitioner passed by the High Court was in its administrative capacity hence, no immunity could be claimed under Article 199(5) of the Constitution.

 

20.In the judgment of Muhammad Iqbal reported in 2010 SCMR 632, the petitioners had challenged the administrative action of Lahore High Court on the ground that they qualified the competitive examination but were not selected for the reason that they did not fulfill the requisite length of practice and their petitions were dismissed by the Lahore High Court. On appeal to the Supreme Court, it was held that all non-judicial or administrative orders of the High Courts are protected under Sub Article (5) of Article 199 of the Constitution. Ground that aggrieved person had no further remedy could not be pressed, if relief claimed by him was not otherwise tenable. In this very judgment, the hon’ble Supreme Court reconciled the judgment passed by the full bench of Lahore High Court in the case of Asif Saeed (supra) and the judgment passed by Peshawar High Court in the case of Kaleem Arshad Khan (supra) and held that the view taken by the Lahore High Court  is perfectly valid and that of Peshawar High Court is not in accordance with true spirit of Sub Article (5) of Article 199 of the Constitution and the same was overruled and the judgment passed by the Lahore High Court was upheld.

 

 

21.Keeping in view the aforesaid dictum and the legal position laid down by the hon'ble supreme court in the judgments quoted supra, we have no hesitation in our mind that all judicial orders passed by this court can be challenged in accordance with the Constitution or law but all non-judicial or administrative orders of this court are protected under Sub Article 5 of the Article 199 of the Constitution. But at the same time we are also cognizant to the facts that in both the petitions, petitioners have not challenged any action of the respondent No.2 but it has been alleged that it is a recognized policy  in all such types of preliminary tests that the prospectus/syllabus are given to the applicants at the time of submission of their applications, so that they may get some hints from which areas of knowledge or of subjects the test would be conducted.

 

22.The most crucial point raised by the petitioners that when the petitioners along with other candidates seated on their roll numbers, the question book and answer sheet were handed over to them, an announcement was made that the duration of test is only 60 minutes instead of 120 minutes. Along with Constitutional Petition No.41 of 2011, a representation is also attached at Page-65 of the Court file, which was forwarded by at least 45 candidates to the hon'ble Chief Justice of this Court on 1.1.2011 in which also the same grievance and complaint was lodged.

 

23.In the advertisement published on 27.4.2010 for inviting applications for the appointment of Civil Judge/Judicial Magistrate, the criteria for selection was minimum 50% marks in the preliminary test M.C.Qs, which was a mandatory requirement for the second test. The respondent No.3 has also shown us minutes of the meeting of Provincial Selection Board/Administrative Committee held on 30.11.2010 which was chaired by the former hon'ble Chief Justice of this Court and three most learned senior Judges were also members of the Selection Board. The minutes of meeting shows the following agenda:

"To  consider the question of consolidated statement showing statistics as on 29.11.2010 for appointment of Civil Judges and Judicial Magistrates."

 

In the above meeting it was discussed and decided that written objective test (M.C.Qs) of an hour be conducted through National Testing Service Pakistan in the Sindh High Court Lawn, Karachi.

 

24.On 10.12.2010, respondent No.3 issued admit cards in which also the duration of preliminary test was mentioned as one hour. However, on the date of test, question book was distributed and on the first page of instructions instead of 60 minutes, the duration of test was mentioned as 120 minutes for 100 questions. Being a professional organization, engaged in the arrangements of various preliminary tests in different institutions/organizations, it was the responsibility of the respondent No.4 to abide by the specific instructions mentioned in the minutes of meeting, but in spite of clear instructions, they had wrongly printed duration of test as 120 minutes, which is the main cause of concern and confusion among the candidates and they have vehemently argued that the paper was set up for 120 minutes, but in order to fulfill the instructions of respondent No.3 mentioned in the minutes, NTS suddenly changed the time from 120 minutes to 60 minutes. The paper was so lengthy, which could not be completed within the duration of 60 minutes. It is a case of error apparent on the face of record  in which the candidates had no fault or mistake.

 

25. On NTS website www.nts.org.pk, two categories of National Aptitude Tests (NAT) are made known. Category one is related to the candidates having 12 years education while, NAT for category two, relates to the candidates having 14 years education. The pattern of NAT for category one suggests 90 questions required to be answered in 120 minutes while the pattern of NAT for category two suggests 100 questions required to be answered in 120 minutes. Besides above categories, it is also hosted on the aforesaid website that the General Test is generally divided into three sections i.e  the verbal section, quantitative section and section for analytical reasoning. The duration of NAT(S) is 120 minutes for 90 questions i.e 20 minutes to answer 20 questions from verbal section, 55 minutes to answer 35 questions from quantitative section and 45 minutes to answer 35 questions from analytical section.  The duration of NAT(G) is also 120 minutes for 90 questions i.e the suggested time for verbal section is 35 minutes while 28 and 57 minutes are recommended for the quantitative and analytical reasoning sections.   

 

26. The officer of respondent No.4 has not been able to satisfy us as to why their own recommendation or pattern of paper with proportionate time duration was not adhered to. The only unpersuasive reply was that they were asked by the Provincial Selection Board to prepare a tough paper to be answered in sixty minutes. However, the minutes of the meeting produced before us do not substantiate his contention. The only direction seems to be that the paper should be answerable in sixty minutes. The Provincial Selection Board never asked NTS to set the paper for 100 questions answerable  in 60 minutes only.

 

27. We have no hesitation to hold that it was the sole responsibility of NTS to ensure that a reasonable qualitative test paper is prepared which could be answered by a reasonably intelligent person within sixty minutes. We are of the view that the respondent No.4 (NTS) has failed to properly discharge their assignment and also deviated and diverged from their own style and pattern of NAT hosted on their website. We are also of the view that questions book must have been printed and published much before the date of preliminary test, therefore, it was also a responsibility of respondent No.4 to make the correction on the question book prior to its distribution and due to their error, the candidates should not sustain the loss. The hon'ble Supreme Court has already held in the judgment quoted supra that the Administrative Committee of the Sindh High Court had absolute discretion and vast powers  to follow any equitable procedure or to lay down different criteria of passing marks in different tests, therefore, in all fairness, the respondent No.4 must have acted on the instructions of Administrative Committee prudently, but due to their mistake of wrong printing on the question book the entire process  of preliminary test has become questionable for all such candidates, who appeared and failed in the test and due to the mistake committed by the respondent No.4, the petitioners/candidates can not be penalized.

 

 

28.The interpretation of Sub Article (5) of Article 199 of the Constitution and scope of powers of this court have already been dealt with and discussed in detail in the judgments pronounced by the hon'ble Supreme Court mentioned supra, therefore, we are fortified by the aforesaid dictum and cannot issue any writ against the Provincial Selection Board, but at the same time, we are also fully cognizant to the fact that there is no question of issuing any writ is involved against the respondent No.2, who had neither compiled the question book nor decided the time period of 120 minutes but it is the responsibility of  respondent No.4, who committed the mistake, therefore, in order to do substantial justice, we are convinced to at least allow all the petitioners and other candidates to appear in the preliminary test, except those, who have already been declared qualified for the second test.

 

29.All the petitioners and other candidates who appeared in the test and failed can otherwise appear in the next test as and when decided to be conducted but to due grave error committed by the NTS, we feel it appropriate and in the interest of justice to allow the petitioners and all other candidates who appeared in the test and declared unsuccessful to reappear in the forthcoming preliminary test against the same application form submitted by them for the test in question.

 

 

30.The respondent No.3 has informed us that the next preliminary test for the appointment of Civil Judge and Judicial Magistrates is likely to be conducted tentatively in the month of March, 2011 for which new advertisement/notice will be published in the newspapers. The respondent No.3 is directed to issue fresh admit cards to the petitioners and all other candidates, who failed in the preliminary test dated 29.10.2010 and provide them a fair opportunity to appear and attend the next preliminary test without charging admission fee and against the same application forms submitted by them for the test in question. We would like to clarify further that the candidates who had appeared in the preliminary test will be governed by the terms and conditions spelled out in the advertisement on the publication of which they had filed their applications and the age restriction shall also be considered on the basis of same advertisement published in daily Dawn, Karachi on 27.4.2010.

 

31. This judgment shall not  prejudice the rights of those candidates, who have already been declared successful in the preliminary test and the procedure for their appointments or otherwise shall continue without being effected by this judgment and the petitioners and other candidates will only eligible to be appointed on the seats, which are still available after the process of appointment of the above successful candidates has been concluded.

 

32.Both the petitions along with listed applications are disposed of  in the above terms.

 

Karachi:                                                                         Judge

Dated. 23.2.2011

 

 

Judge