RIAZ HANIF RAHI Versus REGISTRAR, LAHORE HIGH COURT, LAHORE

IJAZ-UL-HASSAN KHAN, J .---The above captioned petitions under Article 185(3) of the Commission of Islamic Republic of Pakistan, 1973, have been filed to seek leave to appeal against a consolidated judgment rendered on 7-4-2008 by a learned Division Bench of Lahore High Court, Lahore, whereby, Writ Petition No.864 of 2008 instituted by the petitioners, has been dismissed.

2. The Lahore High Court, vide advertisement dated 27-12-2007 appearing in newspapers dated 29-12-2007 and 30-12-2007, invited applications on prescribed from the Advocates domiciled in Punjab and practising in the Civil/Sessions and High Court, for appointment against thirty posts of Additional District and Sessions Judges, possessing the Degree in Law from a recognized University entitling to practice the profession of Law, or a Barrister of England or Ireland, or a Member of Faculty of Advocates of Scotland with minimum ten years practice as an Advocate of High Court and Courts subordinate to Lahore High Court, Lahore. The age prescribed was not less than 35 years and not more than 45 years on 21-1-2008. The petitioners applied for the said post. However, their applications were not entertained on the ground that they were not eligible to appear in examination for not possessing the required experience and practice at law. The petitioners made a representation which was declined. Feeling aggrieved thereby, the petitioners invoked constitutional jurisdiction of Lahore High Court, Lahore, by filing Writ Petition No.64 of 2008, which did not succeed. The same was dismissed on 7-4-2008, necessitating the filing of instant petitions.

3. The petitioner appeared in-person and bitterly criticized the impugned judgment maintaining that same has been recorded in a mechanical manner without application of independent judicial mind. They also contended that Clause (b) of Rule 7 of the Punjab Judicial Service Rules, 1994 has not been examined in its true perspective and in no manner it stands in the way of the petitioners to apply and appear in the Examination and that even if the period of service or retainership is excluded, the petitioners are eligible to appear in the examination.

4. Ms. Afshan Ghazanfar, learned Assistant Advocate-General, on the contrary,' defended the impugned judgment and submitted that the Examination Committee of Lahore High Court, Lahore formulated the policy .regarding the eligibility of the candidates in line with the Punjab Judicial Service Rules, 1994 to maintain transparency in the method of process of selection to the higher Judicial posts. She added that Rule 7(1)(b) of aforesaid rule, laying down the qualifications for appointment to the post of Additional District and Sessions Judge, makes it abundantly clear that a candidate must be a practising Advocate with ten years minimum practice as an advocate and must not have engaged himself in any other whole time service, business or occupation for gain. She further submitted that the provisions of rule 7(1) and rule 7 (1) cater for different situations the former for the post of Civil Judge-cum-Judicial Magistrate' and the latter for the post of Additional District and Sessions Judge and cannot be read in conjunction with each other as the classification so made is rational and germane to the different demands of two posts. Concluding the arguments, learned Assistant Advocate General reiterated that a person, who has joined Government Service or is holding a civil post or doing any whole time job, business or occupation falls outside purview of the phrase practising Advocate and thus renders himself as ineligible to apply for the post of Additional District and Sessions Judge.

5. The Lahore High Court, Lahore, being the appointing authority under the Punjab Judicial Service Rules, 1994 advertised 30 posts of Additional District and Sessions Judge laying down the criteria of eligibility for the said' post. Rule 7(1)(b) of the Punjab Judicial Service Rules, 1994, is reproduced herein below for facility sake:--

"In case of appointment to a post of Additional District and Sessions Judge, he apart from possessing the qualification is sub-clause (i) of clause (a) is also practising Advocate of High Court and the Courts subordinate thereto with minimum practice of ten years and is not less than thirty five years and not more than forty five years of age."

Sub-clause (i) of clause (a) of sub-rule (1) of rule 7 provides that a candidate possesses a degree in law from a recognized University entitling him to practice the profession of law or is a Member of Faculty of Advocates of Scotland.

6. Having considered the matter from all angles, in the light of the material on record, we find that the provisions of Rule 7 of the Punjab Judicial Service Rules, 1994 in no manner create hurdle and block way of the petitioners to appear in the examination.

7. Needless to reiterate that to allow the District Attorney, Deputy District Attorney or Assistant District Attorney or Prosecutors to be eligible candidates of the post of Civil Judges and disallow them to become candidates for the post of Additional District and Sessions Judges, is highly discriminatory. Research Assistant in the office of the Attorney General and Prosecutor Anti Narcotics Force are not included in the person disqualified to appear in the Examination. Especially when both of them are allowed to practice privately and retain their licence to practise. It may be pertinently mentioned here that even if the period of service/relationship is excluded, the petitioners are eligible to appear in the examination.

Riaz Hanif Rahi has been enrolled as an Advocate of High Court on 30-11-1998, whereas Liaquat Mumtaz Malana and Mian Humayun Aslam have been enrolled as Advocates of High Court on 18-6-1995 and 7-2-1999 respectively. When attention of learned Assistant Advocate-General- was drawn to this aspect of the matter, she had no plausible reply to make.

8. Adverting to the prayer of the petitioners, we find that the Examination in question has already been conducted on 12-4-2008. Mr. Muhammad Akram Deputy, Registrar (Confidential) states that in case suitable candidates are not available and some posts remain vacant, same shall be re-advertised and petitioners will be allowed to apply for the said posts.

9. In view of the above, these petitions are converted into appeals and stand disposed, of in above terms. We make no order as to costs.

M.B.A./R-7/S Order accordingly.