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Petitioner: Mst. AYESHA SHABBIR & others VS Respondent: REGISTRAR ISLAMABAD HIGH COURT, JUDGMENT
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title:Mst. AYESHA SHABBIR & others vs REGISTRAR ISLAMABAD HIGH COURT,
JUDGMENT
Reported As: PLJ 2018 Islamabad 28, 2018 PLC (C.S.) 1026 Result: N/A Judgment JUDGMENT Through this common judgment, I intend to decide all the captioned writ petitions as common questions 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 KPX, 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 &
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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.P. Nos. 3908 & 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 u/S. 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 alongwith 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. No. 3908 & 3909/2015). 4. Learned counsel for petitioners (in W.Ps. No. 3908 & 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 03 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 Rule 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
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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. No. 3908 & 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 Jtidicial 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 (02) 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 & others versus Lahore. High Court through Registrar & others", PLD 1998 Supreme Court 103 "Muhammad Ikram Chaudhry & others versus Federation of Pakistan & others" and 1991 MLD 2546 [Lahore] "Nusrat Elahi & 41 others versus 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. No. 3908 & 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
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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 (1)/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 & 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.P. Nos. 3908 & 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.--(1) 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
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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 past 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 original post, if any, or if he does not hold a lien on any post, his services may be dispensed with. (8) A person whose services are dispensed with or who is reverted under sub-rule (7) shall not be entitled to any compensation." In view of sub-rule (3) of Rule 20 it is mandatory to complete training, and to pass departmental examination as may be prescribed from time to time before confirmation of any person under Islamabad Judicial Service Rules, 2011, whereas, admittedly petitioners have never been directed to join training nor any training has been prescribed under the Rules till date however, the departmental examination has been prescribed vide notification dated 23.06.2015. 11.In view of above rules, term "prescribed" comes into play which requires a proper meaning. "Prescribed" means "recommended with authority". According to Ballentine's Law Dictionary, it means to lay down before hand as a rule, ordain, appoint, define authoritatively as a guide, direction, rule of action, defined in PLD 1966 [Karachi] 483 "General Manager, North-Western Railway versus Sher Muhammad", PLD 1982 Quetta 1 "Salooka Steels Ltd. versus Director General, Coast Guards, Pakistan", 1991 CLC 1826 [Lahore] "Muhammad Hussain and 9 others versus Mst. Fatima and 2 others" and 1992 PLC (CS) 421 "Syed Sajid Hussain versus Ch. Muhammad Latif & others". 12.In view of above referred judgments and terminology provided in the legal dictionary, the meaning of word "prescribed" has to been seen as referred above especially when the said term
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has not been explained or defined in the Islamabad Judicial Service Rules, 2011. The simple meaning of word "prescribed" means things which were already ordained/ defined / recommended with authority prior to departmental examination in this case, however, I have gone through the notification dated 23.06.2015 wherein prescribed departmental examination has been notified to be. taken from the present petitioners, hence, it can safely be concluded that Islamabad High Court being the competent authority has already prescribed / recommended the departmental examination whereas the training has not been prescribed so far, as a result whereof the petitioners have participated in the first departmental examination hence, they acquiesced the holding of departmental examination by sitting in the said examination and they could not wriggle out from the order of competent authority i.e. Islamabad High Court. 13.The other objection raised by the learned counsel for petitioners is that their maximum period of probation has already been expired and they are confirmed in terms of sub-rule (5) of Rule 20 of the Islamabad Judicial Service Rules, 2011. I have gone through the wording of Sub-Rule (5) of Rule 20 which is "subject to the provisions of sub-rule (3)" the expression subject to means "conditional on, contingent on, dependent on, depending on, controlled by, hingeing on, resting on, hanging on". Similarly, the said term has also been reported and defined in 2011 PTD 1460 [Karachi High Court] "A. P. Moller through Agent versus Taxation Officer of Income Tax and another", wherein it has been held that: "18. The legislative device of subjecting a provision to other provisions of the statute (or even the whole of the statute) is of course well established. Its proper interpretation was explained as follows in C&J Clark Ltd. v. Inland Revenue 71 Commissioners (1973) 2 All ER 513 by Megarry, J. (in the High Court): "In my judgment, the phrase 'subject to' is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision." (p. 520; emphasis supplied) In Harding v. Coburn (1976) 2 NLR 577, the New Zealand Court of Appeal observed: "The qualification, 'subject to' is a standard way of making clear which provision is to govern in the event of conflict. It throws no light, however, on whether there would in truth be a conflict without it." (per Cooke, J., pg. 582; emphasis supplied) In Newcrest Mining (WA) Ltd. v. Commonwealth (1997) HCA 38; (1997) 190 CLR 513, the High Court of Australia was concerned with the interpretation of sections 51 and 122 of the Australian Constitution. It was observed as follows (internal citations omitted): "In interpreting S.122 and its relationship with S.51 of the Constitution, the most striking feature of the relationship is that the powers conferred by S.51 are conferred 'subject to this Constitution' while S.122 is unqualified by that expression.... The use of the expression 'subject to this Constitution' does not itself mean that there is always conflict between S.51 and S.122. But it does mean that, where conflict exists, 5.122 must prevail. As Megarry J pointed out in C and J Clark Ltd. v IRC (1973) 2 All ER 513, 520 `[w]here there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail.' In S v. Marwane 1982 (3) SA 717(A), 747-8, the Appellate Division of the Supreme Court of South Africa had to construe the words '[s]ubject to the provisions of this Constitution'. Miller JA, giving judgment for the majority, said: `The purpose of the phrase 'subject to' in such a context is to establish what is dominant and what subordinate or subservient; that to which a provision is 'subject', is dominant - in case of conflict it prevails over that which is subject to it. Certainly, in the field of legislation, the phrase has this clear and accepted connotation. When the legislator wishes to convey that that which is now being enacted is not to prevail in circumstances where it conflicts, or is inconsistent or incompatible, with a specified other enactment, it very frequently, if not almost invariably, qualifies such enactment by
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the method of declaring it to be 'subject to' the other specified one." (emphasis supplied) Finally, reference may be made to The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue Trivandrum and another AIR 1964 SC 207, where the Indian Supreme Court observed: "The words 'subject to other provisions of the Constitution' mean that if there is an irreconcilable conflict between the pre-existing law and provision or provisions of the Constitution the latter shall prevail to the extent of that inconsistency." (para 23) As these judicial observations indicate, the phrase "subject to" merely makes clear which provision is to prevail in case there is a conflict between two provisions. It does not however, in and of itself necessarily mean that there is or will be a clash or conflict between the dominant (or master) provisions on the one hand, and the subject provisions on the other. And it certainly does not mean that the provision being made "subject to" is to be applied as though every other provision of the statute is to be read into it." 14.The above referred interpretation given in authoritative judgment of High Court clearly demonstrates that the term "subject to" donates a condition status and unless such condition has not been meted out the subsequent event do not apply whereas sub-rule (5) of Rule 20 clearly demonstrates that it is subject to the provision of sSubrule (3) which says "no persons 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". Hence, it can safely be concluded that Sub-Rule 5 is dependent upon sub-rule (3) of Rule 20 of the Islamabad Judicial Service Rules, 2011 and it cannot be interpreted independently nor its wording gives independent meaning on the basis of deeming clause referred in the said provision. In terms of Rules of interpretation of statute, it is settled that the rules should be read in harmonious manner and meaning should be given in a very simple and straight concept unless any other intention has been expressed by the legislator, therefore sub-rule (3) of Rule 20 of Islamabad Judicial…
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