Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No: W. P. No. 25423 of 2015.

Muhammad Naeem. Versus Executive District Officer etc.

JUDGMENT

Date of hearing: 23.11.2015.

Petitioner by: Ch. Muhammad Akram Khan, Advocate.
Respondents by: Mr. Muhammad Hammad Khan Rai, Assistant
Advocate General, Punjab.
Miss Yousra Malik, Section Officer
(Regulations-IV) S&GAD.

Shahid Jamil Khan, J:- A direction is sought for promotion

of petitioner to BS-04, pursuant to recommendations by
Departmental Promotion Committee (“DPC”) in its meeting held on
11.08.2015.

Petitioner, being Naib Qasid, is posted at Medical Social

Services Project, THQ Hospital, Kot Radha Kishan, District Kasur.
As per contents of petition, he initially failed in Typing Test for
departmental promotion, along with respondent No.7 and two other
candidates. The contestants again appeared in subsequent Typing
Test, when only petitioner was declared successful by securing speed
of 25 words per minute. Consequently, he was considered by DPC
and was recommended for promotion.

Allegedly, the matter of promotion of the petitioner was

lingered on at the behest of respondent No.2 who wanted to get
respondent No.7 promoted against the post. To achieve this design
various applications were moved causing delay in finalization of
petitioner’s promotion. Ultimately respondent No.2 maneuvered to
get the petitioner declared as fail in the subsequent Typing Test vide
letter dated 11.08.2015.
W. P. No. 25423 of 2015. 2

2. Learned AAG pleaded against maintainability of this petition

in view of bar contained in Article 212 of the Constitution of the
Islamic Republic of Pakistan, 1973. He was confronted with the
judgment by Hon’ble Supreme Court in Secretary Establishment
Division, Government of Pakistan, Islamabad v. Aftab Ahmed
Manika and others (2015 SCMR 1006), wherein it is held that
“Constitutional jurisdiction of High Court is not ousted in matters pertaining to
appointment of civil servant to a particular post or to be promoted to a higher
grade”. He requested for some time to seek instructions and file
comments. On next date respondents No. 1 and 2 along with
Assistant Director/System Network Administrator, Kasur appeared.
They were asked to establish bona fide and transparency in
conducting the Typing Test, but could not reply satisfactorily.
Impugned letter dated 11.08.2015 was also confronted to Assistant
Director/System Network Administrator, Kasur for this purpose. He
did not show any reason for declaring the petitioner as fail, however,
submitted that his score was wrongly calculated. He conceded that
test was conducted at a software called ‘Typing Tutor’, which was
downloaded from some website. The state of affairs in respondent
department, surfaced during proceedings, led to strong presumption
that fair and transparent procedure was not being employed.

Learned AAG was asked to assist whether any regulation was

available for conducting Typing Tests, he requested for some more
time. On the following date of hearing, Law Officer of Punjab
Information Technology Board appeared before the Court and
apprised that no such regulation has so far been made by
Government of Punjab. Miss Yousra Malik, Section Officer
S&GAD, Government of Punjab appeared as a consequence and
apprised that the regulation for conducting Typing Test transparently
is under process and is likely to be notified soon.

On subsequent date, copy of the Notification dated 20.11.2015

was submitted, wherein procedure is prescribed for conducting and
W. P. No. 25423 of 2015. 3

granting score in the Typing Test. The Notification is reproduced

hereunder for ease of reference:-

“No.SORIV(S&GAD)10-8/2015
GOVERNMENT OF THE PUNJAB
SERVICES & GENERAL ADMINISTRATION
DEPARTMENT (REGULATIONS WING)
Dated Lahore the 20th November, 2015
To
1. The Senior Member, Board of Revenue, Punjab.
2. The Chairman, Planning & Development Board,
Punjab.
3. All Administrative Secretaries in the Punjab.
4. All Commissioners in the Punjab.
5. The Provincial Police Officer, Punjab, Lahore.
6. The Chairman, Chief Minister’s Inspection Team,
Lahore.
7. All Heads of Attached Departments in the Punjab.
8. All Heads of Autonomous Bodies in the Punjab.
9. The Registrar, Lahore High Court, Lahore.
10. The Registrar, Punjab Service Tribunal, Lahore.
11. The Secretary, Punjab Public Service Commission,
Lahore.
12. All District Coordination Officers in the Punjab.
13. The Accountant General Punjab, Lahore.
14. All District Accounts Officer in the Punjab.
SUBJECT: PROCEDURE FOR COUNTING OF WORDS FOR
TYPING TEST
Kindly refer to the subject noted above.
2. In order to streamline the procedure and to ensure
transparency in conducting shorthand/typing tests in accordance
with speed prescribed in the relevant service rules for the
recruitment of Stenographers/Junior Clerks, the following guidelines
are issued for the guidance of selection authorities:
Shorthand Test
(i) The required number of words per minute, of the
concerned department will be multiplied with five (5),
that would be equal to total numbers of words,
required for dictation.
(ii) Calculate the total errors after dictated passage is
received by the examiner.
(iii) ½ mark is deducted for error in shorthand script and
one mark is deducted for one error in transcribed
script.
(iv) The total of errors is counted and they should not
exceed 5% i.e. if a candidate takes dictation of 400
words, his errors should not be more than 20.
W. P. No. 25423 of 2015. 4

(v) 400-20=380 380x100/400=95%.

(vi) 95% accuracy is required for successful candidates
appearing in shorthand test.
Typing Test on Computer
(i) Five strokes are equal to one word.
(ii) The required number of words per minute, of the
concerned department will be multiplied with five (5),
that would be equal to total numbers of words,
required for dictation, i.e. for speed of 40 words per
minute total words to be typed: 40x5=200 words.
(iii) If a candidate types 200 words in the stipulated five
minutes and he made 10 errors, then his speed will
be calculated as under:
Total words typed 200 Errors 10x5 = 50
200-50 = 150/5 = 30 words per minute
3. It is, therefore, requested to kindly ensure transparency in
the typing test by following the above said guidelines.

-sd/-
(YOUSRA MALIK)
Section Officer (Regulations-IV)
CC:
6. PS to the Secretary to Governor, Punjab.
7. PS to the Secretary to Chief Minister, Punjab.
8. PS to the Chief Secretary, Punjab.
9. PS to the Additional Chief Secretary, Punjab.
10. PS to the Secretary (Regulations), S&GAD.”

3. Learned counsel for the petitioner submits that the petitioner is

entitled to be promoted to BS-04, in pursuance of recommendations
of DPC dated 11.08.2015. He insists for decision of the petition in
view of prayer in the petition.

4. Heard, record perused.

5. After examination of case in light of pleaded facts and

developments during proceedings, it is an irresistible conclusion that
authority to determine eligibility for appointment against a post, was
being exercised capriciously. No procedure, with uniform standards,
was provided by Government of Punjab, for conducting Typing Test
to determine valuable right of contesting candidates. The
determination was left on the discretion of relevant authority with
W. P. No. 25423 of 2015. 5

every possibility of its misuse to accommodate the favorites.

Procedural impropriety, if entails consequence of effecting right of a
citizen is a ground for judicial review of executive action. Such
exercise of authority should not and cannot go unnoticed. In
Saddaqat Ali Khan through L.Rs. and others v. Collector Land
Acquisition and others (PLD 2010 S.C. 878), the Apex Court of the
country held,

“15. What is discernable from the above-quoted judgments and

others is that the basic object behind establishment of Courts in a
society was never just to administer law but was, in fact, to dispense
justice. The ultimate goal sought to be achieved by the courts was
thus to do complete justice between the parties and to ensure that
the rights were delivered to those to whom they belonged and no
hurdles were ever considered strong enough to detract the Courts
from reaching the said end.....”
In Habibullah Energy Limited and another v. WAPDA
through Chairman and others (PLD 2014 S.C. 47), after quoting
earlier judgments, sphere of judicial review was reiterated to ensure
that administrative and executive actions are arrived at in fair, just
and transparent manner. Hon’ble Court went on to observe that
failure on the part of courts to set aside an action taken otherwise, if
noticed, would make it a party to such unreasonable, unfair, mala
fide and illegal action. Relevant excerpt is reproduced for reference:-
“28. An overview of the judgments reproduced or referred to
hereinabove leaves little room for doubt that it is now a well-settled
principle of law that all public functionaries must exercise public
authority, especially while dealing with the public property, public
funds or assets in a fair, just, transparent and reasonable manner,
untainted by mala fide without discrimination and in accordance with
law, keeping in view the Constitutional Rights of the Citizens. This
would hold true even in the absence of any specific statutory
provisions setting forth the process in this behalf. Therefore, it is not
really relevant whether the transaction in question was governed by
the Ordinance, 2000 or the Rules, 2004 or neither. It is an equally
well settled principle of law that such actions of public functionaries
are always subject to Judicial Review. No doubt, while exercising its
jurisdiction, the Superior Courts neither sit in appeal over the
administrative actions nor interfere on account of inconsequential
deviations, as has been observed in Dr. Akhtar Hassan Khan’s case
(supra). However, where administrative authority acts in a
discriminatory manner and action fails the test of reasonableness,
transparency and/or is otherwise unjust and unfair or suffer from
W. P. No. 25423 of 2015. 6

mala fide, the Courts not only are vested with the jurisdiction to set
aside such action but any failure in such an eventuality to exercise
the power of Judicial Review, when invoked, would make the Court
a party to such unreasonable, unfair, mala fide and illegal action.”

6. In Raja Mujahid Muzaffar and others v. Federation of

Pakistan and others (2012 SCMR 1651) it is held, “Public funds, public
property, licenses, jobs or any other government largesse is to be dealt with by
public functionaries on behalf of and for the benefit of the people” . The action of
conducting Typing Test without prescribing transparent procedure
was interfered by seeking explanations. However, Government of
Punjab responded by suppling a procedure through Notification
dated 20.11.2015, supra. It is expected that the notified procedure
shall be followed by all the concerns to conduct Typing Test for
determining eligibility in fair, just, transparent and reasonable
manner.

7. So far petitioner’s prayer is concerned; there are some

apparent irregularities, yet it cannot be ignored that question of
petitioner’s passing the Typing Test has become disputed fact after
statement by the Assistant Director/System Network Administrator,
Kasur that petitioner’s score was wrongly calculated. Hon’ble
Supreme Court of Pakistan in Al-Hamza Ship Breaking Co. and 14
others v. Government of Pakistan through Secretary Revenue
Division, Ministry of Finance, Islamabad and others (2015 SCMR
595) held against deciding disputed questions of facts in exercise of
constitutional jurisdiction by High Courts, however, has directed not
to ignore manifest arbitrariness in exercise of executive authority.

In Suo Motu Case No. 13 of 2009 (PLD 2011 S.C. 619), it is

held, “....power of judicial review is not an appeal from the decision, the Court
cannot substitute its decision for that of the decision maker”. Therefore,
petitioner’s prayer for appointment on the basis of recommendations
by DPC cannot be allowed.

8. Nevertheless, for the reasons noted above and following the

dictum laid down by Hon’ble Supreme Court, the Typing Test
 W. P. No. 25423 of 2015. 7

conducted by respondents, in absence of any transparent prescribed

procedure is set aside.

Learned AAG has undertaken before the Court that the post in
question shall be filled after conducting Typing Test in accordance
with the notified procedure.

9. Respondents are directed to allow petitioner, as well as, other

contestants to participate in Typing Test to be conducted in
transparent, fair and reasonable manner in accordance with the
Notification dated 20.11.2015.

Petition stands disposed of accordingly.

(Shahid Jamil Khan)

Judge
APPROVED FOR REPORTING.

Judge
*A.W.*