P L D 2022 Peshawar 226 (PLP)

MUHAMMAD FAHEEM WALI, J.

Through this petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have prayed for the following relief:-- "It is, therefore, humbly prayed that on acceptance of the instant writ petition, the respondent may graciously be directed to extend the same concession/relaxation to the entire petitioners and other candidates who appeared in the screening test and thereafter allow them to appear in the written examination scheduled to commence from 21.02.2022 and onwards just like the extension/relaxation has been duly granted to the candidates securing 50% marks and above and failed to qualify in the screening test ibid. Any other relief which this Honorable Court may deems fit and proper in the circumstances of the case may also be granted to the petitioners".

2. Main grievance of the petitioners is that in the original advertisement for the posts of Additional District and Sessions Judges, there was no mention of 50% passing marks and the only criteria, provided therein, for eligibility for appearance in the written test, that has been mentioned in Part III (iii) of the Addendum in continuation of Advertisement No.INF(P) 1404/20 for the screening test, was restricted to allowing only the top 150 candidates who having secured the highest marks respectively in the screening test, therefore, once the threshold was reduced from the original (150 candidates) then, reducing the same to all those who got more than 50% marks, is against the advertisement and therefore, adversely affects the rights of the petitioners and they (petitioners) may also be allowed to appear in the written test scheduled to be held on 21.02.2022.

3. Arguments heard and record perused.

4. It is pertinent to mention here that after conduct of the screening test, initially 151 candidates were shortlisted and amongst those, the last one secured 58 marks and the total marks being 100, makes it 58% of the total marks but on the requests of the various Bar Councils and a public demand, the Hon'ble Chief Justice had been pleased to allow all the candidates, securing 50% and above marks in the screening test, to sit in the written examination scheduled to commence on the ibid date. The number of candidates, so eligible, was thus, raised to 264 instead of 151.

5. The very contention of the petitioners that there was no criteria of passing marks, mentioned in the advertisement, is belied by the record of the case that was requisitioned during hearing of the instant petition, wherein, it has been categorically provided in Para 6 (2) whereby, the qualifying marks, for the screening test, have been given as 50% of the total marks. Similarly, in the original and revised instructions for screening test, in the general instructions, the qualifying marks for passing the screening test, had been mentioned to be 50%, however, only top 150 candidates, qualifying their screening test, will be shortlisted/ qualified for the written examination. Same is the position with the revised instructions.

6. This development of fixing the 50% passing marks criteria has been duly notified on the website of the High Court as well as huge panaflexes carrying this condition amongst others, was also reported to have been displayed at each and every examination centers. Therefore, the argument is not convincing that the candidates including the petitioners, who appeared in the exam were taken by surprise about the passing marks.

7. Be all that as it may, apparently, from perusal of the petition as well as arguments advanced at the bar, the petitioners do not appear to be aggrieved with the fixation of 50% passing marks in screening test for eligibility for sitting in the written test, rather, the petitioners want this Court to allow all the candidates to appear in the written test by dispensing with the whole criteria and without any condition of a minimum number of passing marks. We are afraid, this request of the petitioners cannot be adhered to, mainly for the reason that all the candidates, who secured more than 50% marks, had been called for appearing in the written test and no single candidate was alleged to have been discriminated against, who in that case might have a right to seek redressal of his grievance through a writ petition.

8. The petitioners have not been affected or discriminated against, as, there is no impediment provided under the law to restrain the respondent from relaxing the examination criteria especially when the same has been duly notified, way in advance, to all the appearing candidates. Therefore, the plea of discrimination so raised in the body of the petition, though not mentioned in the prayer part, also does not hold ground. Reliance is placed on case titled "Government of Punjab through Chief Secretary and 3 others v. Sardar Zafar Iqbal Dogar" reported as (2011 SCMR 1239), and case titled "ABWA Knowledge Village (PVT) through Director and another v. Federation of Pakistan through Secretary, National Health Services and another" reported as [2021 MLD 1455 (Lahore)].

9. The petitioners are not directly affected by the relaxation in criteria as well as extension in the number of candidates allowed to appear in the written examination and they have got no locus-standi to file the instant petition.

10. Needless to reiterate that under Article 199 (5) of the Constitution of the Islamic Republic of Pakistan, 1973, the Hon'ble Supreme Court and High Courts had been excluded from the term 'person' and therefore, no writ could be issued by a High Court under Article 199 to the Supreme Court or to itself and the legislative intent of the framers of the Constitution did not intend that the remedy of a writ be available against a High Court or the Supreme Court. This principle has been enunciated in a recent judgment of 'Gull Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others' reported as (PLD 2021 SC 391). On this score alone, the petition in hand is not maintainable, hence, dismissed in limine. MH/174/P Petition dismissed.