Full Judgment Text & Judicial Ruling

2018 P L C (C.S.) 1026 [Islamabad High Court] Before Mohsin Akhtar Kayani, J Mst. AYESHA SHABBIR and others Versus The REGISTRAR ISLAMABAD HIGH COURT, ISLAMABAD and others W.Ps. Nos.3908, 3909 and 4016 of 2015, decided on 6th June, 2017. (a) Islamabad Judicial Service Rules, 2011--- ----Rr. 20 (3) (5) (7), 2 (k) & 27---Punjab Civil Judges Departmental Examination Rules, 1991, R.4 (1) (3)---Constitution of Pakistan, Art.25---Judicial officers (Civil Judges), confirmation of---Requirements--- Departmental examination--- Discrimination---Conducting departmental examination without training---Effect---Petitioners-Civil Judges were directed to appear in the departmental examination for their confirmation---Contention of petitioners was that they were not offered departmental training and without said training departmental examination should not have been conducted---Validity---Petitioners, before confirmation were required to complete training and pass departmental examination, they had never been directed to join training nor any training had been prescribed under Islamabad Judicial Service Rules, 2011 till date---Prescribed departmental examination was notified---Petitioners/Civil Judges having participated in the first departmental examination, acquiesced the holding of departmental examination---Petitioners could not wriggle out from the order of competent authority i.e. Islamabad High Court---No person could be confirmed in a post unless he had successfully completed training and passed departmental examination---Rule 20 (5) of Islamabad Judicial Service Rules, 2011 was subject to the provision of R.20(3) of the said Rules---No discrimination had been noticed in the present case---Case of petitioners was of initial appointment and their appointment did not fall within the category of absorption---Petitioners after acceptance of their terms and conditions gave their consent and appointment notification was issued by the order of the Chief Justice of the High Court---Petitioners had no right to say that they would not appear in any examination which would amount to misconduct---Petitioners/Civil Judges could not be allowed to avoid departmental examination merely on the ground that they were not subjected to training---Training was not pre-requisite for the appearance in the departmental examination---Departmental examination was to be read as part of appointment notification---Notification for departmental examination was within the purview and authority of the High Court---Petitioners' confirmation was subject to passing of departmental examination but not with the completion of maximum probation period---Examination committee had been constituted to hold, conduct and supervise the examination under the instructions issued by the Chief Justice or Administration Committee---Administration Committee would draw power from the orders of Chief Justice---Order passed by the Administration Committee of the High Court including the Chief Justice would mean the orders of the High Court---Petitioners sought restraining order for departmental examination the time of which had already expired---Petitioner filed their representations which were entertained by the competent authority---Service Tribunal having been constituted for redressal of issues of petitioners, Constitutional petition was not maintainable when alternate remedy was available---If petitioners Civil Judges were allowed to get confirmation without departmental examination, that would mean that the High Court had perpetuated the illegality---Constitutional petition could not be allowed to perpetuate the illegality---Petitioners, had been estopped by their words and conduct by appearing in first departmental examination and they could not challenge the same when results were different from their expectations---Chief Justice of the High Court had prerogative to interpret the rules if any question had arisen---Registrar of High Court was to seek further directions with regard to issuance of notification for departmental examination along with schedule of remaining chances---Departmental Examination Committee should initiate process of examination of all the remaining batches of Civil Judges and should exclude those subjects which were related to Punjab Jurisdiction and add those which were applicable in Islamabad---High Court observed that the Chief Justice was expected to issue notification of one time extension in probation period of petitioners as time of probation during pendency of present petition had already expired---Petitioners were to be treated with fairness and according to principles of natural justice---Petitioners would continue to work/act as Civil Judges-cum-Judicial Magistrate till passing of their remaining chances of departmental examinations within one time extended probation period---Constitutional petition was disposed of accordingly. Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632 and Nusrat Elahi and 41 others v. Registrar Lahore High Court and 68 others 1991 MLD 2546 ref. Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 rel. (b) Constitution of Pakistan--- ----Art. 25---Discrimination---Scope---Discrimination would be observed where similarly placed persons had been treated in terms of their same status. (c) Constitution of Pakistan--- ----Art. 199(5)---Constitutional petition against High Court---Maintainability---Principles. Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others PLD 1966 SC 1; Abrar Hassan v. Government of Pakistan and others PLD 1976 SC 315 and Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161 rel. (d) Constitution of Pakistan--- ----Arts. 189 & 201---View expressed by larger Bench was to be followed even if the same was expressed prior in time. Multiline Associates v. Ardishir Cowasjee and 2 others PLD 1995 SC 423; Babar Shahzad v. Said Akbar and another 1999 SCMR 2518; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law Justice, Islamabad and others PLD 2009 SC 879; Hassan and others v. The State and others PLD 2013 SC 793 and Ch. Muhammad Akram, Advocate High Court v. Registrar, Islamabad High Court and others PLD 2016 SC 961 rel. (e) Islamabad High Court Act (XVII of 2010)--- ----S. 3---"High Court"---"High Court" would mean all the Judges of the High Court. (f) Islamabad Judicial Service Rules, 2011--- ----R. 20 (3)---'Prescribed'---Meaning. General Manager, North-Western Railway v. Sher Muhammad PLD 1966 Kar. 483; Salooka Steels Ltd. v. Director General, Coast Guards, Pakistan PLD 1982 Ouetta 1; Muhammad Hussain and 9 others v. Mst. Fatima and 2 others 1991 CLC 1826 and Syed Sajid Hussain v. Ch. Muhammad Latif and others 1992 PLC (C.S.) 421 rel. (g) Islamabad Judicial Service Rules, 2011-- ----R. 20(5)---'Subject to'---Meaning. A.P. Moller through Agent v. Taxation Officer of Income Tax and another 2011 PTD 1460 rel. (h) Islamabad Judicial Service Rules, 2011--- ----R. 2(k)---'Initial appointment'---Meaning. (i) Interpretation of statutes--- ----Rules under an Act were to be read harmoniously and meaning be given a simple and straight concept unless any other intention had been expressed by the Legislator. (j) Interpretation of statutes--- ----Procedural law has retrospective effect. (k) Words and phrases--- ----'And'---Meaning. Oxford Theasurs of English rel. Ijaz Janjua for Petitioners (in W.P. No.3908 of 2015). Mian Abdul Rauf, A.G. for Respondents Nos.1 and 2 (in W.P. No.3908 of 2015). Wajid Hussain Mughal for Respondent No.3 (in W.P. No.3908 of 2015). Muhammad Umair Baloch for Petitioners (in W.P. No.3909 of 2015). Mian Abdul Rauf, A.G. for Respondents Nos.1 and 2 (in W.P. No.3909 of 2015). Wajid Hussain Mughal for Respondent No.3 (in W.P. No.3909 of 2015). Wajid Hussain Mughal for Petitioner (in W.P. No.4016 of 2015). Mian Abdul Rauf, A.G. Islamabad for Respondents (in W.P. No.4016 of 2015). Date of hearing: 31st May, 2017. JUDGMENT MOHSIN AKHTAR KAYANI, J.---Through this common judgment, I intend to decide all the captioned writ petitions as common question of law and facts are involved in all these writ petitions. 2. Through W.P. No.3908/2015 the petitioners have prayed for the following relief:-- (a) The requirement to appear in examinations at this belated stage, after 2 years and nine months in service, be declared to be without lawful authority. (b) A declaration be issued that, the first examination held on 31 August till September 5, without prior training, is null and void. (c) A declaration that, the Examination Committee comprising of only two Hon'ble Judges was violative of the adopted Rules, which prescribed a minimum of three Judges, to form the Examination Committee. (d) A declaration that, the Petitioners are being discriminated against in service in complete disregard of Constitutional Guarantees/safe guards and therefore, the whole process and procedure is unconstitutional. (e) A declaration that, since the Petitioners were entitled to four attempts in 24 months, which is not possible through no fault of their own, they are absolved from appearing in the examination, which stand dispensed with in KPK, Balochistan and Sindh High Courts. Whereas, in W.P. No.3909/2015 same relief has been claimed by the other set of petitioners, therefore, there is no need to reproduce the prayer of said writ petition, whereas in W.P. No.4016/2015 petitioner (Islamabad Bar Association) has prayed for issuance of direction to respondent No.1 to initiate the process of Departmental Examination for Additional District and Sessions Judges appointed in September, 2012 as per Rule 20 (3) of Islamabad Judicial Service Rules, 2011. 3. Brief facts of the instant case(s) are that petitioners in W.Ps. Nos.3908 and 3909 of 2015 were appointed as Civil Judges-cum-Judicial Magistrates after due process of advertisement, written examination and interview conducted in all provinces as well as in FATA and finally the petitioners were appointed in Islamabad Judicial Service vide notification dated 22.09.2012. The petitioners are performing their duties since their date of appointment and presently conferred with powers of Civil Judge 1st Class vide notification dated 25.10.2012 and powers under section 30 of Cr.P.C. vide notification dated 26.03.2015 by virtue of up-gradation of their post vide notification dated 19.03.2014. The petitioners were never offered to undergo the departmental training in terms of Rule 20(3) of the Islamabad Judicial Service Rules, 2011 whereafter, the petitioners have to appear in Departmental Examination for their confirmation in Islamabad Judicial Service vide letter dated 23.06.2015 whereby the Islamabad Judicial Service Rules have been amended on 02.05.2015 through notification and the Punjab Civil Judge Departmental Examination Rules, 1991 have been adopted and the same were made applicable retrospectively to the extent of the petitioners who were appointed on 22.09.2012. Islamabad High Court vide notification dated 23.06.2015 directed the present petitioners to appear in Departmental Examination of Civil Judges-cum-Judicial Magistrates of Islamabad Judicial Service. The petitioners being aggrieved by the said notification challenged the same along with notification dated 16.11.2015 whereby the Islamabad High Court notified the results of first Departmental Examination held w.e.f. 31.08.2015 to 05.09.2015 whereby all the petitioners were declared fail in Departmental Examination and date of second Departmental Examination was notified, as w.e.f. 14.12.2015 to 19.12.2015. The petitioners have assailed both these notification through the instant writ petitions (W.Ps. Nos.3908 and 3909/2015). 4. Learned counsel for petitioners (in W.Ps. Nos.3908 and 3909/2015) argued that the impugned notifications dated 23.06.2015 and 16.11.2015 are void ab-initio, illegal, unlawful, arbitrary and against the rights of the petitioners; that there was no requirement of Departmental Examination existed in the appointment notification of the petitioners nor the same was prescribed in the Islamabad Judicial Service Rules, 2011 prior to the appointment of the petitioners; that Islamabad Judicial Service Rules do not provide Departmental Examination Rules whereas the Islamabad High Court has adopted the Punjab Civil Judges Departmental Examination Rules, 1991 which provides different mechanism and the same are not applicable in the case of petitioners; that petitioners have been discriminated as the Judicial Officers who were appointed in terms of Rule 2(h) of the Islamabad Judicial Service Rules, 2011 have not been asked to undergo similar examination prior to confirmation of their services; that petitioners are being discriminated as similarly placed Civil Judges-cum-Judicial Magistrates by Islamabad High Court appointed on 20.01.2015 were sent for exclusive training for a period of 3 months prior to taking charge of their posts. Even the conditions of examination for confirmation of Civil Judges-cum-Judicial Magistrates has also been dispensed with by the Hon'ble Peshawar High Court, Hon'ble High Court of Sindh and Hon'ble High Court of Balochistan and the concerned Civil Judges were confirmed in service on completion of probation period, that as per Rules 4(1) of the Punjab Civil Judges Departmental Examination Rules, 1991 the Chief Justice is required to constitute a committee comprising of three Judges of the Court for the purpose of conducting examination whereas in the case of petitioners the committee constituted by the Hon'ble Chief Justice of this Court was comprising of only 02 judges of the High Court; that as per Rule 4(3) of the said Rules the committee is required to hold, conduct and supervise the examination, whereas in the present case, the committee appointed an external examiner for the conduct of examination and setting of question papers and the same external examiner was entrusted with the task to evaluate and check all the answer sheets despite the fact that he was only engaged to set the papers and not to check and evaluate the same; that schedule given for the examination is in violation of the Punjab Civil Judge Departmental Examination Rules, 1991 (adopted rules) as four examinations have been scheduled within a period of 10 months and not in two years as specified in Rule 5 of the said Rules; that there is no alternate efficacious and speedy remedy available except to invoke the writ jurisdiction as the issue relates to fundamental rights of the petitioners.

5. Conversely, learned counsel for Islamabad District Bar Association, argued that the instant writ petitions (W.Ps. Nos.3908 and 3909/2015) are not maintainable as the petitioners have no authority or right to challenge the departmental examination mainly on the ground that their terms and conditions of service were duly communicated to them in their notification of appointment dated 22.09.2012 and the same was accepted by the petitioners as a result whereof their notification for appointment was issued; that in terms of clause (i) of the notification of appointment the services of petitioners shall be governed by the terms and conditions given in the Islamabad Judicial Service Rules, 2011 and it has also been referred in clause (iii) that petitioners will be on probation for a period of two (02) years extendable for a further period of two (2) years and the relevant Rules, Rule 20 (3) of the Islamabad Judicial Service Rules, 2011 imposes a condition that no person shall be confirmed in a post unless he has successfully completed such training and passed such departmental examination as may be prescribed from time to time; that the Departmental Examination has been prescribed by the Islamabad High Court, therefore, the petitioners cannot claim any discrimination on the basis of said law; that petitioners have not challenged vires of any rule and it is not their case rather they are aggrieved by the second examination schedule as well as result of first Departmental Examination dated 16.11.2015 whereby all the petitioners have been declared failed. 6. Learned Advocate General, Islamabad has also represented the learned Registrar of Islamabad High Court, Islamabad whereby he argued that the instant writ petitions are not maintainable in terms of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973; that the writ petitions have been filed against administrative order issued by Hon'ble Islamabad High Court and the same is not permissible in view of judgments reported as (2010 SCMR 632) "Muhammad Iqbal and others v. Lahore High Court through Registrar and others", (PLD 1998 Supreme Court 103) "Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others" and (1991 MLD 2546 [Lahore]) "Nusrat Elahi and 41 others v. Registrar Lahore High Court and 68 others. Learned Advocate General further argued that petitions suffer from laches and the petitioners acquiesced the holding of Departmental examination by sitting in first departmental examination and now they cannot take u-turn by challenging the same; that petitioners have not availed the alternate remedy before approaching this Court. 7. Arguments heard, record perused. 8. From the perusal of record it has been observed that the petitioners (in W.Ps. Nos.3908 and 3909/2015) were appointed as Civil Judges-cum-Judicial Magistrates after due process of advertisement, written examination and interview by the Islamabad High Court vide notification dated 22.09.2012. The petitioners at the time of their appointment accepted the terms and conditions referred in notification dated 22.09.2012 which are as under:- (i) Their services shall be governed by the terms and conditions given in the Islamabad Judicial Service Rules, 2011; (ii) They shall have to appear before a Medical Board for verification of good mental and physical state and being free from any physical defect likely to interfere with the efficient performance of their duties as a member of the Service; (iii) They will be on probation for a period of two (02) years extendable for a further period of two (02) years; (iv) They shall be subject to discipline as prescribed under rule 25 of the Islamabad Judicial Service Rues, 2011; (v) They shall be liable to be transferred and serve anywhere under the administrative control of this High Court or anywhere within or outside Pakistan on any equivalent or higher post under the Federal Government or any local authority or statutory body setup or established by Government and serve anywhere on deputation in Pakistan under the Provincial Governments; (vi) They shall be entitled to the scale of pay and other financial benefits including pensionary benefits as determined under rule 23 of the Islamabad Judicial Service Rules, 2011; (vii) Their services during period of probation or extended period of probation may be dispensed with at any time without giving any prior notice; (viii) If anyone of them wants to resign he may do so after giving one month prior notice to the authority, otherwise, one month pay shall be forfeited. The resignation shall, however, be subject to the acceptance by the Competent Authority; (ix) No TA/DA shall be admissible for joining the service. Whereas services of petitioners were governed by the terms and conditions given in the Islamabad Judicial Service Rules, 2011 and after acceptance of the above referred terms and conditions of appointment their names were notified as Judicial Officers. It has been observed from the record that the Hon'ble Chief of Islamabad High Court on the recommendation of Board (Judicial Selection Board) was pleased to appoint the petitioners as Civil Judge-cum-Judicial Magistrate (BPS-17) but their posts were upgraded from BPS-17 to BPS-18 vide notification dated 19.03.2014 however, in terms of Rule 20(3) of the Islamabad Judicial Service Rules, 2011 the Registrar of this Court issued the date sheet/schedule, syllabus for the first Departmental Examination of Civil judges-cum-Judicial Magistrates of Islamabad Judicial Service vide notification dated 23.06.2015. The Hon'ble Chief Justice, Islamabad High Court on the recommendations of Administration Committee has referred the amendment in the Islamabad Judicial Service Rules, 2011 which was notified vide Notification S.R.O. 395(I)/2015 dated 05.05.2015 whereby following amendments have been made:- "In the Islamabad Judicial Service Rules, 2011, after sub-rule 3 of rule 20 following proviso shall be added: "Provided that until Islamabad High Court frames its own Rules regarding Departmental Examination of Civil Judges/Judicial Magistrates, the corresponding Rules of the Lahore High Court, Lahore with such modifications/ changes as may be prescribed by Hon'ble Chief Justice on the recommendation of the Hon'ble Administration Committee, shall apply." In view of above amendment in the Rules, first Departmental Examination of Civil Judges-cum-Judicial Magistrates was notified and was held w.e.f. 31.08.2015 to 05.09.2015. All the petitioners participated in the Departmental Examination. However all the petitioners failed as per the notification dated 16.11.2015 whereas the petitioners had appeared in six different papers of Criminal Law, Civil Law-I, Civil Law-II, Revenue Law, Accounts and Shariah Law. 9. After the declaration of their results of 1st Departmental Examination the same notification contains second departmental examination date commencing w.e.f. 14.12.2015 to 19.12.2015 but all the petitioners assailed the same before this Court through W.Ps. Nos.3908 and 3909 of 2015. 10. The main grievance of the petitioners is relating to Rule 20(3) of the Islamabad Judicial Service Rules, 2011 however, in order to understand the analogy of the said Part-VIII of the Rules, Rule 20 is reproduced as under:- "20. Probation.---(l) The persons appointed to the Service at the first time appointment shall stand confirmed with effect from the date of their appointment: Provided that they have been confirmed by their parent department otherwise they shall remain on probation for a period of one year. (2) Save as provided in sub-rule (1), a person appointed to a post against a substantive vacancy shall remain on probation for a period of two years, if appointed by initial recruitment, and for a period of one year, if appointed otherwise: Provided that the Appointing Authority may extend the period of probation by a similar term: Provided further that a total period of probation shall not exceed four years in case of initial recruitment: Provided also that the High Court may, in exceptional circumstances of any case, reduce the period of probation. Explanation.---Officiating service and service spent on deputation to a corresponding or a higher post may be allowed to count towards the period of probation. (3) No person shall be confirmed in a post unless he has successfully completed such training and passed such departmental examinations as may be prescribed from time to time. (4) If no order to the contrary has been made by the day following the completion of the initial probationary period, the period of probation shall be deemed to have been extended: Provided that the officers confirmed on the posts of Civil Judges-cum-Magistrates and on the posts of Additional District and Sessions Judges shall not be required to be confirmed on the posts of Senior Civil Judges-cum-Magistrates and District and Sessions Judges respectively. (5) Subject to the provisions of sub-rule (3), if no order has been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended. (6) A probationer, who has satisfactorily completed his period of probation against a substantive vacancy, shall be confirmed with effect from the date of his continuous appointment against such a vacancy: Provided that where the period of probation has been extended under the provisions of sub-rule (2), the date of confirmation shall, subject to the other provisions of this rule, be the date on which the period of probation was last extended. (7) If it appears to the High Court at any time during or at the end of the period of probation, or extended period of probation, as the case may be, that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfactory performance, it may revert the probationer to his…

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