KHALIQ-UZ-ZAMAN CHAUDHRY, CIVIL JUDGE, 1ST CLASS, LAHORE Versus GOVERNMENT OF PUNJAB

The petitioners, who are working as Civil Judges in the Province of Punjab, feeling aggrieved of the appointments made by the respondent to the posts of Additional District and Sessions Judges from among the members of bar, have riled this petition of the Constitution of Islamic Republic of Pakistan, 1973, praying that:

The respondent be refrained from making any recruitments to the post of Additional District and Sessions Judges by way of initial recruitments from amongst Advocates and be directed to carry out all future recruitments to the post of Additional District and Sessions Judges by promotion from amongst Civil Judges on seniority‑cum‑ fitness basis till ratio/proportion of the number of persons promoted from amongst Civil Judges vis‑a‑vis the total number of recruitments is not less than 2/3rd and in accordance with the abovesaid rules.

It is also prayed that respondent may further be issued such appropriate direction as may ensure the compliance of the Rules and to prohibit the violation of the same.

It is further prayed that pending the final adjudication of this writ petition respondent may kindly be restrained from making any recruitment to the post of Additional District and Sessions Judges by way of initial recruitment from amongst Advocates and be directed to carry out all future recruitments to the posts of Additional District and Sessions Judges by promotion from amongst Civil Judges on seniority cum‑fitness basis till the ratio/proportion of the number of persons promoted from amongst Civil Judges vis‑a‑vis the total number of recruitments is not less than 2/3rd and in accordance with the abovesaid rules."

2. The principal grievance made in this petition which has also beer voiced by the learned counsel for the petitioners is that although under the relevant rules, appointments to the posts of Additional District and Sessions Judges are to be made by promotion from amongst Civil Judges and by initial appointment from the members of the bar in the ratio of 2/3: 1/3 respectivel3, the respondent in violation of the rules has filled in 50% of the posts through initial recruitments from the Advocates.

3. In support of this petition, learned counsel for the petitioners has referred to Punjab Civil Servants Act, 1974 and the Notification No.CI.14‑2/76, dated 28th September, 1977 issued by the Governor of Punjab under section 23 of the said Act.

4. It is unfortunate that no one has appeared for the respondent and, therefore, the arguments of the learned counsel for the petitioners have been heard in its absence. On numerous occasions, the case was adjourned either at the request of the learned Advocate‑General, Punjab or on account of his non availability. On 11th May, 1993, no one appeared on behalf of the respondent, though repeated messages were sent to the office of the learned Advocate General, Punjab. Although this conduct of the respondent clearly disentitled it from any indulgence but still in the ends of justice the case was ordered to be re-listed for 12th May, 1993. On that date also, unfortunately, no one appeared for the respondent. Mr. Farooq Bedar, learned Additional Advocate‑General, who was present in connection with some other cases in this Court, was apprised of the situation but he stated that he had no instructions in this case. In these circumstances, there was no option but to proceed ex parte.

5. In the para‑wise comments riled by the respondent, none of the relevant facts have been disputed. It has been explained that originally under Rule 7(2) of the C.S.P. (Composition of Cadre) Rules, 1954, 1/3rd of the posts of the Additional District and Sessions Judges were reserved for the officers belonging to the CSP cadre while remaining 2/3rd of the posts were to be filled in equal proportion by promotion from amongst the Civil Judges and direct recruitment from the bar. Rule 7 (2) of the C.S.P. (Composition of Cadre) Rules, 1954 was, however, deleted on 21‑8‑1973 with the result that the C.S.P. Officers ceased to be eligible for being appointed as Additional District and Sessions Judges. In view of this situation, the Governor of Punjab issued a Notification bearing No. 61‑14‑2‑/76, directing that not less than 2/3rd of the posts shall be filled in by promotion on seniority‑cum‑fitness basis from among the Civil Judges and not more than 1/3rd by initial recruitments. The reason as to why this rule has riot been given effect to as stated in the parawise comments is that an objection was raised by this Court.

6. Having heard the learned counsel for the petitioners and examined the record including the parawise comments, I am clearly of the view that this petition is liable to succeed.

7. According to section 4 of the Punjab Civil Servants Act, 1974, appointments to civil service of the Province or a civil post in connection with the affairs of the province are to be made in the prescribed manner by the Governor or a person authorised by him in that behalf. It cannot be disputed that the post of the Additional District and Sessions Judge is one of such posts. According to section 2(g) of the said Act, "prescribed" means in accordance with rules.

8. In the exercise of powers conferred upon him by section 23 of the; Punjab Civil Servants Act, 1974, the Governor of Punjab on 28th September, 1977 issued a Notification No. CI.14‑2/76, laying down method of recruitment, minimum qualifications; age limit and other matters relating to the posts specified therein which inter alia include the post of Additional District and Sessions Judge. The mode of recruitment prescribed in the aforesaid Notification was that not less than 2/3rd of the posts were to be filled in by promotion on seniority‑cum‑fitness basis from amongst Civil Judges while not more than 1/3rd of the posts by initial recruitment through Public Service Commission. By a subsequent Notification, dated 22nd August, 1978, the words "Public Service Commission" were substituted by "on the recommendation of High Court". Accumulative reading of the two Notifications would show that not less than 2/3rd of the posts of Additional District and Sessions Judges are to be filled in from amongst Civil Judges while appointments to the remaining 1/3rd of the posts are to be made by the Provincial Government on the recommendation of this Court from the members of the Bar. It is not the case of the respondent that these rules have subsequently undergone any change or amendment. In these circumstances, the respondent was clearly under an obligation to act in accordance with rules framed by it which could not be ignored nor could the binding nature thereof be taken away.

9. There is nothing on record to support the assertion that the rules in question were not followed because of an objection raised by this Court. But even if it be so, there would hardly be any justification for non‑observance of the rules merely on account of an objection raised on administrative side even by this Court. So long as the rules in question were in statute book and were not amended, it was clearly the obligation of the Government to follow and act upon the same. Its action in doing so is clearly not sustainable.

10. Before parting with the case, it may be noted that an objection has been raised in the written statement by the respondent regarding the jurisdiction of this Court in view of the Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. This objection is highly misconceived. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 only seeks a direction to the respondent to enforce the rules on the subject but it does not in any manner affect the terms and conditions of service of any civil servant. It is since long well‑settled that jurisdiction of this Court is ousted only where the dispute is such that it falls within the domain of Service Tribunal. In the present case, there is no order of any departmental authorities which can be subjected to appeal before the Service Tribunal and as such, this objection cannot be given effect to.

In view of what has been stated above, this petition is allowed; it is declared that the posts of Additional District and Sessions Judges are to be filled in accordance with the Notification of Governor of Punjab dated 22nd August, 1978.

There shall be no order as to costs.

A.A./K‑82/L Petition accepted.