' By this single order I.C.-A. No,54 of 2005 "Nazakat Abbas and 19 others v. Punjab Public Service Commission and another" and ICA No,55 of 2005 "Asif Bashir and 32 others v. Punjab Public Service Commission and another" are decided, for common questions of facts and law are involved in both these intra Court appeals.
2. Concise facts necessary for the disposal of these appeals are that appellants are law graduates, who qualified their LLB examination, during period from 1999 to 2004. There was no condition of two years experience as practising advocate for appearing in the examination of Civil Judge cum Judicial Magistrate, during this period. The condition of two years practice as an advocate was brought through Notification dated 30-4-2004, by amending Rule 7 of Punjab Judicial Service Rules, 1994. Appellants invoked extraordinary constitutional jurisdiction of this Court to challenge the condition of two years experience as practising advocate on the ground that amendment cannot be applied to the appellants with retrospective effect.
3. Learned Judge in chamber, while holding that recruitment policy expressed through rules is subject to variation at the discretion of competent authority and it cannot be said that petitioner's vested rights have been impaired, dismissed the writ petition on 25-10-2004. Order dated 25-10- 2004 passed in Writ Petition No,17572 of 2004 is under challenge in these appeals.
4. Learned counsel for the appellants has submitted that the learned Judge in Chamber has relied, mainly upon the decision of the Supreme Court, in the case of "Mumtaz Ali Bohio and 24 others v.
The Federal Public Service Commission" (2002 SCMR 772). He added that judgment relied upon by the Single Judge, is a "leave refused" order and as such the same is not a precedent case. Learned counsel in support of this contention has referred to the cases of "Abdul Aziz Shah and another v.
Abdul Ghafoor and another" (1985 SCMR 221) and "Haji Kadir Bux v. Province of Sindh and another"
(1982 SCMR 582). It was further contended that the judgment relied upon by the learned Single Judge (Mumtaz Ali Bohio's case) supra, is departure from previous judgments and thus cannot be considered as law declared. Learned counsel in this respect has placed reliance on the cases of Sheikh Fazal Ahmad v. Raja Zulifqar Khan and another (PLD 1964 SC 494), Government of West Pakistan and another v. Nisar M. Khan and others (PLD 1965 SC 106), Islamic Republic of Pakistan v.
Mazhar-ul-Haq and 2 others (1977 SCMR 509), Trustees of Port cf Karachi and another v. &Mar Zaid Ahmad (1985 SCMR 810). Case of Collector of Central Excise and Land Customs and 3 others v.
Aziziuddin Industries Ltd. (PLD 1970 SC 439). Learned counsel then referred to the cases of Commissioner of Sales Tax (West) Karachi v. Kruddson Ltd. (PLD 1974 SC 180) to contend that notification cannot operate retrospectively to impair existing right. Learned counsel while placing reliance on the cases of The State v. Aziz Ahmad and another (1975 PCrLJ 105), Al-Samrez Enterprise v. Federation of Pakistan" D 1969 SC 322, "Income Tax Officer, Central Circle II Karachi and another v.
Cement Agencies Ltd. (1986 SCMR 1917), Muhammad Suleman and others v. Abdul Ghani and others (PLD 1978 SC 190), Governor of N.-W.F.P. And another v. Gul Naras Khan (1987 SCMR 1709) submitted that valuable right accrued cannot be taken away by altering rules. Case of Shamsher Ali v. Commissioner, Hyderabad Division and 2 others (1984 CLC 2742) was referred to contend that the judgment of a larger Bench has to prevail. Learned counsel for the appellants lastly contended that appellants Nos.9, 12 and 16 have already qualified and are entitled to the appointment as Civil Judge cum Judicial Magistrate on the equitable principles. The case of "Riaz ul Haq v. Selection Committee constituted for admission to Bolan Medical College through Secretary" (1997 SCMR 1845) was referred in this respect.
5. Mr. Muhammad Hanif Khattana, learned Additional Advocate General has fully supported the impugned order. He has argued that the petitioners have appeared in L.L.B. Examination, mostly during 1999 to 2004 and during this time they had ample opportunity to joint the legal profession.
He argued further that the Government has the power to make rules and make the amendment in such rules. The policy or rules, applicable are those prevalent on the date of the appointmeRt. The appellants have no vested right and their constitutional petition was not competent, on this score.
6. Heard learned counsel for the parties and examined the record.
7. The record of appellants was summoned and report by the respondent No,1 reflects that appellants Nos.9, 12 and 16 have only qualified in the written test. The other appellants have not qualified even the written test.
8. There is no cavil with the proposition that issuance of notification by the Government, in the exercise of power of the subordinate legislation, has no retrospective effect. Rules, orders and directions cannot be retrospective to impair the existing rights. There is plethora of case-law in this respect, including the case-raw cited by the learned counsel for the appellants. But can it be said in the proposition in hand, that the impugned notification is retrospective and has taken away a vested right from the petitioners? The rules applicable and conditions required to be satisfied for the recruitment of a particular post, are the one which exist on the date of recruitment and not what were the requirement at an early date. The selection or appointment of the petitioners is to be governed according to law and the rules which are prevalent on the day of recruitment. Hon'ble Supreme Court in the case of "Government of N.-W.F.P. v. Dr. Sheikh Muzaffar Iqbal and others" (1990 SCMR 1321) has held as under:-- "The law has since then been well established that the rules applicable and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirement at an earlier date."
9. Government is competent to enhance, alter or amend the prescribed qualification to maintain efficiency in service and a vested right cannot be claimed in this respect. The apex Court in the case of Dr.Muhammad Hussain v. Principal Ayub Medical College" (PLD 2003 SC 143) has dealt with this question in the manner as under:- "We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant regulations and rules of PMDC concerning the appointment of Assistant Professor, Associate Professor and Professor in Ayub Medical College, Abbottabad. The judgment impugned has also been perused carefully. We are not persuaded to agree with the prime contention of Sheikh Mehmood Ahmad, learned Advocate Supreme Court on behalf of petitioner that no amendment could be made in the relevant regulations/rules by the competent authority adversely affecting the rights of the petitioner for the reason that there is no cavil with the proposition that Government is competent to enhance, alter or amend the prescribed qualification for a particular post which cannot be objected as qualification for a particular post cannot be kept unchanged for decades to safeguard the interest of a particular incumbent and day to day changes in every walk of life."
10. We are persuaded to hold that in the light of this decision of the Hon'ble Supreme Court the appellants cannot claim to be governed under earlier rules and conditions except the one existing on the day of recruitment.
11. The contention of appellant's counsel that Mumtaz Ali Bahio's case, is the leave refuse order, and as such was not a binding precedent, is not well founded: Firstly the decision in that case is a final decision, after the perusal of the relevant record and the law on the subject and decision where the question of law is raised before the Hon'ble Supreme Court, considered and decided, then it has a binding force, no matter at which stage such order is passed. The learned Judge in Chamber has held that the decision in the case of Murtaza Ali Bahio is binding precedent and while holding so found support from the decision of learned Full Bench of this Court in the case of M/s. Crescent Jute Products through Director v. Government of the Punjab, Agriculture Department through Secretary (PLD 2005 Lahore 386). Needless to mention that the observations of Hon'ble Supreme Court, are entitled to very high respect, even obiter dicta on the question of law is binding. Secondly, word "Enunciates" according to Oxford Dictionary means "pronounce clearly, express a proposition or theory in definite terms". According to Word Finder (Readers Digest) enunciate means, "pronounce clearly, utter distinctly". Viewing the decision in Bahio's case, in the light of above definition of the word "enunciates", it is manifestly clear that the decision is the one where the apex Court enunciated a principle of law, which is a binding precedent and has rightly been held so, by the learned Judge in Chamber.
12. Reverting to the last contention of the learned counsel for the appellant that appellants Nos.9, 12 and 16 having already qualified, are entitled to the appointment on equitable principles, on the basis of dictum laid down in "Riaz ul Haq v. Selection Committee constituted for admission to Bolan Medical College through Secretary" (1997 SCMR 1845). We do not see that the claim of appellants on equitable principle is legally tenable specially when they lack the basic qualification. The august Supreme Court in the case of "Dr. Muhammad Hussain v. Principal Ayub Medical College and another" (PLD 2003 SC 143) has held that appointment to a particular post cannot be made in violation of the prevalent rules and regulations. The apex Court did not approve the idea of allowing to continue, the petitioner in that case, in the job on the ground that there was no other applicant available, for the simple reason that the petitioner did not possess the requisite qualification. Appellants Nos.9, 12 and 16 do not possess the requisite qualification and as such are not entitled to be appointed on equitable principles.
13. For the facts and reasons stated hereinabove, we do not find any merit in the instant appeals to unsettle the order impugned before us. The appeals are dismissed accordingly.