' SH. AZMAT SAEED, J.--- Through this judgment it is proposed to decide Writ Petition No,9758 of 2010 and Writ Petition No,10225 of 2010, both filed by the same petitioner.
2. Brief facts necessary for the adjudication of the case are that respondent No,1-Commission issued an advertisement dated 9-1-2010 inviting applications for selection of Additional Prosecutor-Generals in the Prosecution Department, Government of the Punjab. The present petitioner, who is a Civil Judge-cum-Judicial Magistrate, submitted his application which was accepted and the petitioner was allotted a roll number. On 3/4-2-2010, written examination was conducted in which the petitioner participated and apparently passed the same, whereafter respondent No,1-Commission vide its letter dated 17-2-2010 informed the petitioner that he was not qualified for the post and rejected his candidature. Aggrieved, the petitioner invoked the constitutional jurisdiction of this Court through Writ Petition No,3528 of 2010, which was disposed of by this Court vide order dated 2-3-2010 on the statement of the counsel for the petitioner that the matter be referred to the Secretary Prosecution, Government of the Punjab. Subsequently, the Secretary Prosecution, Government of the Punjab, considered the matter and vide his letter dated 16-3-2010 addressed to respondent No,1 opined that the petitioner was qualified and he be considered to be eligible for appointment as Additional Prosecutor-General in the Prosecution Department. Respondent No,1 responded to the said letter vide its communication dated 3-3-2010 stating therein that as per the Rules framed i.e, Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007, the, petitioner, was, not, qualified, and amendment therein be effected, so that the petitioner could be deemed to be qualified. It may be noted that in pith and substance the question pertained to the experience of the petitioner as a Civil Judge-cumJudicial Magistrate which had not been catered for in the rules as in existence at that point of time.
3. In the meanwhile, on 11-4-2010 another advertisement was issued by respondent No,1- Commission soliciting applications for appointment as Additional Prosecutor-Generals with the Prosecution Department, Government of the Punjab, wherein the qualifications as specified in the rules were mentioned which did not cater for the experience as Civil Judge-cum-Judicial Magistrate. On 29-4-2010, the rules i.e, Punjab Criminal Prosecution Service (Conditions of Service)
Rules 2007, were amended through a notification issued by the Government of the Punjab, as a consequence whereof, inter alia, qualifications for Additional Prosecutor-Generals were amended so as to include persons with 5 years service as members of the judicial service. As a consequence whereof the petitioner was qualified to be considered for selection and appointment as Additional Prosecutor-General.
4. In the above backdrop, the petitioner filed Writ Petition No,9758 of 2010 on 11-5-2010 calling into question the letters dated 17-2-2010 and 30-3-2010 issued by respondent No,1-Commission, referred to above. Subsequently, the petitioner filed Writ Petition No,10225 of 2010 praying therein that a direction be issued to the respondents to publish a corrigendum to the advertisement dated 11-4-2010 inviting applications for appointment as Additional Prosecutor-Generals so as to bring the qualifications mentioned therein in conformity with the existing rules as amended vide notification of amendment dated 29-4-2010. The significance of such a proposed corrigendum is that the petitioner would be qualified to apply for the post of Additional Prosecutor-General. In the said constitutional petition after due notice vide order dated 21-5-2010, the petitioner was permitted to participate in the written examination being conducted by respondent No,1- Commission pursuant to the advertisement dated 11-4-2010. During the pendency of the constitutional petition, the result of the said written examination has been declared. However, as was directed by this Court the result of the petitioner has been withheld. Pursuant to the conclusion of the written examination the interviews for all such candidates are yet to be held. This Court is intimated that such interviews are apparently scheduled from the week commencing 28-6-2010.
5. It is contended by the learned counsel for the petitioner that the eligibility of a candidate is to be determined at the time of his appointment and therefore, the petitioner is admittedly qualified to be considered for appointment as an Additional Prosecutor-General, therefore, appropriate orders may be passed in this behalf, especially as he was held to be eligible and allowed to participate in the written examination pursuant to the advertisement dated 9-1-2010 and had also participated in the written examination pursuant to the second advertisement dated 11-4-2010. It is further contended that the Secretary, Government of the Punjab, Prosecution Department vide his letter dated 16-3-2010 has clearly stated that the petitioner is eligible and qualified.
6. Learned counsel for respondent No,1-Commission stated that the applications invited pursuant to the advertisement dated 9-1-2010 were not scrutinized and inadvertently the petitioner was allowed to participate in the written examination. On discovery of the error, the letter dated 17-2- 2010 rejecting the candidature of the petitioner was issued. It is further contended that as per the Rules the petitioner was not qualified on the date when the advertisement dated 9-1-2010 and subsequent advertisement dated 11-4-2010. The amendment was effected on 29-4-2010.
7. The leaned Additional Advocate-General, Punjab, has also controverted the contentions by taking up the plea that the closing date as mentioned in the advertisement is the cutoff date for determining the eligibility of a candidate. In support of his contention, he has relied upon the judgment of this Court reported as Shazia Munawar v. Punjab Public Service Commission through Secretary, Lahore PLD 2010 Lah.
160. It is added that the letter dated 16-3-2010 issued by the Secretary Prosecution, Government of the Punjab, is merely recommendatory in nature. Hence the petitioner is not qualified to be considered for selection and appointment as Additional Prosecutor-General.
8. The Deputy Prosecutor-General appearing on behalf of the Prosecution Department has also resisted this constitutional petition.
9. Heard and record perused. It is an admitted fact between the parties and is also evident from the record that the qualifications for the eligibility and appointment of the petitioner as a Prosecutor-General in the prosecution service are governed by the Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007. In terms of the aforesaid rules as originally framed by the petitioner was not qualified. The amendment therein was effected on 29-4-2010 as a consequence whereof the petitioner is qualified and eligible and considered for appointment as Additional Prosecutor-General. The real matter in controversy inter se the parties is that whether in the facts and circumstances of the case the original Rules or the amended Rules would be applicable to the petitioner While it is the case of the respondents that it is the closing date mentioned in the advertisement, which is terminus quo to determine the eligibility of a candidate. It is the case of the petitioner that date of the appointment is the relevant date. The respondents in support of their contentions relied upon Shazia Munawar's case (supra). I am afraid, the reliance placed by the respondents in this behalf is misconceived. The said judgment has interpreted the provisions of Rule 7 of the Punjab Judicial Service Rules, 1994, to hold that the qualification as specified in the substantive provision prevail and scope thereof cannot be changed by the "Explanation". And in the above perspective held that the relevant date for calculation of experience is the closing date in the advertisement. The said judgment does not deal with change in law during the pendency of the process for recruitment as has happened in the instant case. The honourable Supreme Court of Pakistan in the case reported as Mushtaq Ahmad Mohal and others v. The honourable Lahore High Court, Lahore and others 1997 SCM R 1043, after reviewing the previous law on the subject observed and held as follows:-- "22. On the other hand, the judgment of this Court in the case-of Government of N.-W.F.P., Health and Social Welfare Department (supra) is directly applicable to the instant case, in which also somewhat similar contention was advanced. In the above report reliance was placed on an earlier judgment of this Court in the case of Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 and the relevant extract from the judgment of the above case was quoted with approval as under:--- "In the case of Dr. Habibur Rehman v. The West Pakistan PublicService Commission, Lahore and 4 others PLD 1973 SC 144 recruitment to the post of Professors of Surgery for Medical Colleges in West Pakistan was taking place through an interview by the Public Service Commission. After the advertisement and before the interview, the qualifications were changed. A vested right was claimed in the qualification advertised and the conditions current at the time of interview were sought to be avoided . The matter was dealt with by this Court in the following words at page 156 of the report:-- 'While considering the question whether relevant rules/ instructions have been infringed in any manner in the matter of assessing the respective merit of the competing candidates, it has to be borne in mind that the reference must be to instructions current at the time the interviews are held by the Public Service Commission. An attempt was made during the course of arguments at the Bar to assert that the instructions applicable should be those which were in force at the time the posts were advertised. This position cannot be accepted as it is difficult to hold that candidates applying for recruitment by interview have any vested right in the method of assessing their merit.
Accordingly, we intend to examine this aspect of the case with reference to the instructions which were in force at the time the two interviews were held.
' The law has since 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 requirements at an earlier date."
(23) It is evident from the above - quoted extract that by now it is a well-established principle of law that the rules applicable and the conditions required to be specified are those which are in force on the date of appointment and not which were obtaining earlier i.e, at the time of inviting applications etc."
The aforesaid makes it clear and obvious for the purpose of determining the qualification for selection and appointment in a recruitment process the law as applicable on the date of appointment is relevant and not as it existed on an earlier date. And the terminus quo in this behalf appears to be the date of the interview. The contentions of the parties must necessarily be examined in the above context.
10. The first advertisement was issued on 9-1-2010 and closing date for applications was 25-1-2010, the date of interview in pursuance thereof 24/25-2-2010. It is an admitted fact between the parties and is evident from the record that on none of the aforesaid dates the petitioner was qualified to be considered for appointment as Additional Prosecutor- General.
11. The second advertisement was issued on 11-4-2010. The closing date for submission of applications was 26-4-2010. The interview in this behalf is yet to be held. In the meanwhile, the rules were amended on 29-4-2010, therefore, on the relevant date i.e, the date of the interview. The amended Rules would apply. And in terms whereof the petitioner has the requisite qualifications of judicial experience for 5 years on the closing date for submission of applications i.e, 26-4-2010. In this view of the matter, there can be no escape from the fact that the petitioner was qualified to be considered for selection and appointment as Additional Prosecutor-General in the process commenced pursuant to the second advertisement dated 11-4-2010.
12. In the instant case, the petitioner applied and was allowed to take the examination by respondent No,1- Commission, he qualified the same and he has re-taken the written examination pursuant to the second advertisement in respect whereof he possesses the requisite qualifications as per the Rules applicable. The Secretary Education, Government of the Punjab, has also expressed his opinion that the petitioner is qualified and the qualifications as originally framed under the Rules were not appropriate and suffered from lacunas as a result of inadvertence on the part of respondent No,2. In this view of the matter, not only the law but also equity weighs in favour of the petitioner. In the instant case, it would have been more appropriate if a corrigendum had been issued to the second advertisement dated 11-4-2010 so as to effect change in the qualifications to bring the same in conformity with the Rules as amended which had come into force on 29-4-2010 prior to the holding of even the written examination. It is this failure on the part of the respondents which has resulted in the complication for which the petitioner cannot be penalized. The entire exercise of the respondents during the course of this litigation appears to be merely to avoid and brush under the carpet the embarrassment of their own acts and omissions.
13. In view of the above, this Court finds itself unable to agree with the respondents and is constrained to direct that the result of the written examination taken by the petitioner be declared and if he has passed the same, the petitioner be interviewed by respondent No,1 and be considered for selection pursuant to the second advertisement dated 11-4-2010.
14. The petitions are disposed of in the above terms.