' RAJA FAYYAZ AHMED, J.---This Civil Petition for Leave to Appeal under Article-185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the judgment dated 10- 11-2005 of the learned Division Bench of the Lahore High Court, Lahore passed in I.C.A. No,54 of 2005, whereby the appeal preferred against the judgment dated 25-10-2004 of the learned Single Judge in Chambers of the Lahore High Court, Lahore in Writ Petition No,17572/2004 has been dismissed.
2. The precise relevant facts of the case are that the petitioners are graduates and have qualified their LLB Examination during the period from 1999 to 2004. During the period, there was no condition provided for two years experience as practicing Advocate for appearing in the Punjab Public Service Commission's Competitive Examination for the posts of 'Civil Judges-cum-Judicial Magistrates'. The condition of two years active practice after having been enrolled as an Advocate was introduced by amending Rule-7 clause (ii) of sub-rule (1) of the Punjab Judicial Service Rules, 1994, hereinafter referred to as 'the Rules', vide Notification No,SOR-III (S&GAD) 2-17/83(P-1) dated 30-4-2004.
3. The petitioners invoked extraordinary constitutional jurisdiction of the learned Lahore High Court challenging the condition of two years practice as an Advocate introduced vide above said Notification which consequently rendered the petitioners as not eligible to appear in the Competitive Examination for the post of a the 'Civil Judges-cum-Judicial Magistrates', inter alia, on the ground that the amendment so introduced vide impugned Notification could not be applied with retrospective effect.
4. The learned Single Judge in Chambers of the Lahore High Court dismissed the Writ Petition of the petitioners by observing that the Rules on the subject can be varied or substituted at the discretion of the law maker and no vested right of the petitioners was impaired by amending the Recruitment Rules, by placing reliance on the dictum of this Court laid down in the cases referred to in the impugned judgment.
5. The learned Advocate Supreme Court for the petitioners and Ch. Aamir Rehman, the Additional Advocate-General, Punjab have been heard extensively. Mr. A.K. Dogar, the learned counsel for the petitioners mainly contended that Rule-7 read with the explanation to the Rule, as amended through the impugned Notification cannot be given effect to defeat the vested rights earlier accrued to the petitioners in view of Rule-7 of the Rules as these rules existed prior to the introduction of the amendment made through the impugned Notification, under which the petitioners were eligible to appear in the competitive examination for the posts of 'Civil Judges- cum-Judicial Magistrates' and they had appeared in the examination but failed in the first attempt, yet, they had two more changes available to them to appear in the competitive examination for the said posts but on account of the impugned Notification abruptly issued they have been found by the Commission as not eligible to appear in the said examination. The learned counsel raised the following points for consideration:--
(i) In the Punjab Judicial Service Rules, 1994 as originally in force there was no condition that a law graduate must possess two years active practice in the law profession as an enrolled Advocate to be eligible at the time of applying as a candidate for the post of 'Civil Judges-cum-judicial Magistrates' and the only condition precedent of eligibility i,e, a law graduate could appear in the competitive examination has further been made qualified with the above said condition.
(ii) The petitioners since were eligible to compete for the said posts had appeared in the competitive examination but failed and; at the time after qualifying their LLB Examination since they intended to join judicial service and their being no condition of two years active practice in the law profession provided by the rules, therefore, they did not opt to join the profession but subsequently Rule-7 was amended, detrimental to their vested rights, as such; they stood deprived to appear in the competitive examination for which they had, yet, two chances to avail. In such view of the matter, on the miscellaneous application moved by the petitioners before the learned I.C.A. Bench of the Lahore High Court, they were permitted to provisionally appear in the competitive examination for the said posts, which they availed and were declared successful in the written examination and the interviews but such aspect of the case was not taken due notice of by the learned I.C.A. Bench.
(iii) Subsequent to the amendment introduced vide impugned Notification, the petitioners were respectively enrolled with the Provincial Bar Council, Lahore on 26-11-2004, 11-5-2004 and 7-6-2004 after completion of their period of apprenticeship as provided under the Bar Council Rules. The period of two years since the date of their respective enrolments was not complete when they provisionally appeared in the competitive examination held by the Punjab Public Service Commission for the said posts were not considered to be recommended for appointment. In identical cases of a few other candidates who had less than two years active practice in the law profession, on certain grounds were granted certificates of two years practice at the bar by the Provincial Bar Council but in the case of the petitioners relief was declined to them. The learned counsel has placed on record photo stat copies of the decisions of the enrolment committee of the Provincial Bar Council in support of his submissions.
(iv) Rule-7 of the Rules subsequently amended vide impugned Notification is not retrospective in its application in view of provisions of Article-264 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the case of the petitioners stand unaffected by the subsequent amendment incorporated in the above said rule. Accordingly, they shall be treated as eligible to appear in the competitive examination irrespective of the two years active practice in the law profession and since they have qualified the competitive examination in the second attempt, therefore, entitled to be recommended for appointment.
(v) Without prejudice to the above contentions, the condition of two years active practice is not a condition precedent for the eligibility to appear in the competitive examination, introduced vide impugned Notification but is a pre-qualification of appointment against the post.
(vi) The amendments made vide impugned Notification in Rule-7 being not reasonable and logical, can be struck down.
(vii) The petitioners are only waiting for their appointments and have invoked the jurisdiction of this Court for doing complete justice to them within the purview of Article 187 of the Constitution.
(viii)The Governor had no jurisdiction to lay down qualifications for the appointment of Judges of the Courts below and it is for the learned High Court being the competent authority to frame rules after separation of the judiciary from the executive, hence; the amendments made in the rules by the Governor in exercise of powers conferred upon him under the Civil Servants Act, 1974 are ultra vires of the Constitution and the law; void and without jurisdiction and of no legal effect.
(ix) The case-law i,e, 2002 SCMR 772 cited in the impugned judgment is not applicable to the case being a leave refusal order.
' Reliance has been placed on the reported judgment i,e, (1) PLD 1964 SC 494, (2) PLD 1965 SC 106,
(3) PLD 1969 SC 407, (4) PLD 1970 SC 439, (5) 1977 SCMR 509, (6) 1988 SCMR 810, (7) 1992 SCMR 602 and (8) 1999 SCMR 1072.
6. Ch. Aamir Rehman, the learned Law Officer for the official respondents contended that in the instant case question of retrospective effect of Rule 7 of the 'Rules' is not involved as the competent authority can amend the rules at any time providing for the additional qualifications and experience with regard to the eligibility of a candidate to appear in the Competitive Examination.
According to the Addl. A.-G. At the time of inviting applications from the candidates, the petitioners were not eligible to compete for the said posts for having not completed the period of two years active practice as an enrolled Advocate and no vested right had accrued to the petitioners to appear in the competitive examination without being eligible to compete as per the amended rule.
The petitioners had appeared initially in the competitive examination and had failed, later on Rule 7 was amended vide impugned Notification providing the condition of two years active practice as an enrolled Advocate, but as the petitioners were not eligible in view of the reintroduced condition of two years practice, therefore, have no vested right vested in them under the law to have been permitted to appear in the examination. The provisional permission accorded by the learned I.C.A.
Bench did not independently create any right in their favour to be considered for appointment for having qualified the written examination and cleared in the interviews. The learned Law Officer contended that criteria of eligibility before holding the proposed examination at any time can be altered, modified or changed by the competent authority and according to him rule son the subject were competently amended providing for the conditions and qualifications of eligibility including the one that may be made applicable at the time of appointment etc. The fact of availing one chance in which the petitioners failed would not entitle them to have availed the other chances on the strength of the 'then existed rule' as the eligibility of a candidate has to be seen at the relevant time under the existing rule/at the time of inviting applications for the post by the Public Service Commission. The learned Law Officer has placed reliance on the reported judgments of this Court i,e, (1) Abdul Aziz Shah and another v. Abdul Ghafoor and another 1985 SCMR 221, (2)
Government of N.-W.F.P. v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321, (3) Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad v. Mirza Muhammad Irfan Baig and four others 1992 SCMR 2430, (4) Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Biikhari PLD 1997 SC 351, (5) Dr. Mrs. Shahnaz Akhtar, Associate Professor v! Government of N.-W.F.P. Through Chief Secretary, Peshawar and others 1998 PLD (CS) 1112, (6) Mumtaz Ali Bohio and 24 others v. The Federal Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772, (7) Dr. Muhammad Hussain v. Principal Ayub Medical College and another PLD 2003 SC 143 and (8) Saifullah v. District Coordination Officer/Chairman, Selection Committee, District Khushab 2004 PLC (C.S.) 310.
7. The contentions noted above put forth on behalf of the parties by their learned counsel have been considered carefully in the light of the relevant rules and the impugned judgment. The undisputed features of the case are that the petitioners had qualified their LLB Examination during the period from 1999 to 2004 and during this period of condition of two years experience as a practicing Advocate to appear in the competitive examination for the posts of Civil Judges-cum- Judicial Magistrates to be held by the Punjab Public Service Commission, Lahore, hereinafter referred to as `PPSC' was not provided in the Punjab Judiciary Service Rules, 1994. The petitioners did not join the law profession to be enrolled as Advocates with the Provincial Bar Council, however, later on vide impugned Notification dated 30-4-2004, the Governor of the Punjab in exercise of the powers conferred upon him under section 23 of the Punjab Civil Servants Act, 1974 (VIII of 1974) made amendments in Rules 7 and 10 of the Rules, out of which amendments made in clause (ii) of sub-rule (i) of Rule 7 of the Rules relate to the case in hand whereby the existing sub-clause (ii) and the explanation of his clause was substituted as under:-- "(ii) he has actively practiced the profession of law for not less than two years after having been enrolled as an Advocate.
Explanation.-For the purposes of this clause:--
(i) the expression "practiced the profession of law" shall include any period of Government service by a person as:--
(a) District Attorney, A Deputy District Attorney or an Assistant District Attorney; or
(b) full time prosecutor authorized to conduct prosecution on behalf of the Government; and
(ii) to prove active practice the candidate shall declare by an affidavit that:--
(a) he had been actively practicing the profession of law during the two years preceding the date of advertisement; and
(b) during this period he had not engaged himself in any other whole time service, business or as the case may be occupation for gain."
8. On account of the above mentioned amendments, the eligibility of a candidate to appear in the competitive examination for the said posts to be held by the PPSC to possess a law degree from a recognized University having actively practiced the profession of law for not less than two years after having been enrolled as an Advocate preceding the date of advertisement subject to fulfillment of the other required formalities as provided in the explanation to the above mentioned clause shall be eligible to appear in the competitive examination for the above said posts. In terms of the impugned Notification, the PPSC invited applications from the candidates vide Advertisement No,14/2004 published in the newspaper (copy appended with the petition). Prior to the above noted amendments made in Rule 7 of the Rules, the petitioners being law graduates and eligible appeared in the competitive examination for the said posts but failed in the first attempt, yet, undisputedly they had two more chances available to them to appear in the competitive examination for the said posts but on account of introduction of the above said amendments made through the impugned Notification, they were not eligible to appear in the competitive examination for want of required experience of active practice of profession of law for a period of two years as enrolled Advocates preceding the date of advertisement mentioned above. It has not been disputed that the condition of two years practice as an enrolled Advocate was provided by the Rules in the past as well and was done away with later on but again introduced vide impugned Notification. It has, inter alia, been contended that as at the relevant time when the petitioners for the first time appeared in the competitive examination held by the PPSC, the condition of two years active practice in the profession of law was not in existence, therefore, Rule 7 as amended through the impugned Notification would not affect the eligibility of petitioners to contest for the post by appearing in the competitive examination as they have been vested with the legal right to avail the remaining two chances and; the rule as amended shall not be retrospectively applicable to their case. Furthermore, since they were provisionally permitted to appear in the competitive examination by the learned I.C.A. Bench during the pendency of the appeal and have qualified and passed in the written examination and the interviews, therefore, the PPSC in view of such developments shall be deemed to be under obligation, as well as, in view of the hardships and constant mental agony, to recommend to the government for their appointments against the said posts. The latter contention as regards recommendation for appointment to be made by the PPSC was brought under consideration by the learned I.C.A. Bench and has been dealt with appropriately in the light of the reported judgments of this Court referred in the impugned judgment.
9. There is no cavil to the proposition that a Notification in the exercise of executive power or in the shape of subordinate legislation is not retrospective in operation, consistently held so by this Court in a number of judgments, even cited by the learned counsel for the parties i,e, (1) Sh. Fazal Ahmed v. Raja Ziaullah Khan and another PLD 1964 SC 494, (2) Islamic Republic of Pakistan through Secretary, Ministry of Commerce and Local Government (Commerce Division), Islamabad v.
Mazhar-ul-Haq and two others 1977 SCMR 509 and (3) Trustees of Port of Karachi and another v.
Zafar Zaid Ahmed 1988 SCMR 810. The question of retrospective application of the impugned amended rules is not involved for the simple reason that at the time when the applications were invited through public notice from the candidates by the PPSC, the petitioners were not eligible for want of requisite experience of two years active practice as enrolled Advocates with the Provincial Bar Council and their case was to be seen in view of the conditions of eligibility to qualify them to appear in the competitive examination in the light of the existing rule and not when they had appeared for the first time in the competitive examination as no such conditions was provided under the then existing rules. Similarly, an identical proposition came up for consideration before this Court in a number of cases in which it was held that conditions, qualifications and criteria prevailing at the time of appointment ought to have been taken into consideration and not what were in the past nor a candidate has a vested right to claim to be governed by any particular set of rules and where unless relating to the subject have been modified, changed or altered, then the latter rules would prevail and supersede the former. In the instant case, no vested rights accrued to the petitioners under the old existing rules or by operation of law in view of the amended rules introduced through the impugned Notification which superseded the earlier Rules on the subject.
The law maker is fully competent to make rules, alter qualification or criteria for a particular posts and no one can make a grievance about the determination of the criteria of eligibility or about the conditions and qualifications provided by the competent authority or rule making authority for appointment and selection against the post, which are to be considered as it exit at the time of appointment or inviting applications from the candidates for such post, as the case may be, as well, as so held by this Court in a number of cases, out of which some of the relevant reported judgments can be conveniently referred. i,e, (1) Government of N.-W.F.P., Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321 = Government of N.-W.F.P. Health Department and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal 1990 SCMR 1524, (2) Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad v. Mirza Muhammad Irfan Baig and 4 others 1992 SCMR 2430, (3)
Dr. Mrs. Shahnaz Akhtar, Associate Professor v. Government of N.W.F.P. Through Chief Secretary, Peshawar and others 1998 PLC (CS) 1112, (4) Mumtaz Ali Bohio v.Federation Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772, and (5) Dr. Muhammad Hussain v. Principal, Ayub Medical College and another PLD 2003 SC 143. In view of the law laid down in the above mentioned judgments of this Court the petitioners cannot claim to be governed under the old rules, substituted subsequently by amending Rule 7 of the Rules through the impugned Notification.
Decision of this Court in Mumtaz Ali Bohio's case refusing to grant leave clearly indicates that the question with regard to the claim of the candidate to be governed by a particular set of Rules as were applicable to him at the stage when he had appeared in CSS Examination but failed, he shall continue to be governed by such Rules, irrespective of the Rules existing at the time of subsequent examination on the ground of vested rights having accrued in his favour, was considered and decided, therefore, the dictum laid down in the said judgment that no candidate has a vested right to be governed by any particular set of rules, would be applicable to the instant case. The case- law cited by the learned counsel i,e, (1) Pakistan through the Secretary Ministry of Finance v.
Muhammad Hamayatullah Farukh PLD 1969 SC 407, (2) Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chitagong PLD 1970 SC 439, (3) Government of the Punjab through Secretary, Home Department v. Ziaullah Khan and 2 others 1992 SCMR 602 and (4)
Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 in view of the contentions raised by the petitioner's learned counsel have no relevance to the proposition involved in the instant case. The questions raised during the arguments before the Court by the learned Advocate Supreme Court for petitioners crucial and relevant in the matter have been considered and dealt with hereinabove. The learned I.C.A. Bench, in our considered view, has correctly applied the lair in view of the Rules as it stand vide impugned Notification in the light of law declared by this Court in the judgments quoted in the impugned judgment which is unexceptionable. The other segments of the contentions and the ancillary supportive arguments raised before us by the learned counsel for the petitioners, noted above, being not sound and, substantive in nature, have no material bearing on the fate of the case, do not call for any comments.
10. Thus; in view of what has been stated above, this petition being devoid of any substance is dismissed. Leave refused.