' SHAHID ANWAR BAJWA, J.--- Petitioner in C.P. No, D-2355 of 2012 was inducted as Reader to Judge, Accountability Court No,III at Karachi and thereafter appointed as Judicial Assistant BS-17 in the Supreme Court. Petitioner in C.P. No,D-2356 of 2012 joined employment in this Court as Junior Clerk in 1999 and he was promoted as Junior Translator B-13 in 2000. Petitioner in C.P.No,D-2480 of 2012, was enrolled as an advocate in 2002 and since 2007 has been working as Assistant Director (MI&E), Criminal Prosecution Service, Law Department, Government of Sindh. On 10-1-2012 an advertisement was placed by this Court for posts of the Additional District and Sessions Judge, BS-
20. Qualifications prescribed were as under:- "(i) He/she shall have a Degree in Law from a recognized University or a Barrister at Law from England or Ireland or is a member of the Faculty of Advocates of Scotland;
(II) Six (6) years' experience as practicing Advocate of High Court and the Courts subordinate thereto OR has for a period of not less than six years held a Judicial Officer with clean record of service."
2. The petitioner applied. His name was included in the list of candidates but was placed under an objection that the petitioner did not meet the requisite qualification. This Constitutional Petition has been filed and the following prayers have been made:- "A. Declare that the petitioner is fully qualified, objectively as well as subjectively, to appear in examination qua the impugned list and in consequence of succeeding in such examination initiating, as heard from reliance sources w,e,f, 16th of July, 2012, to be inducted as Additional District and Sessions Judge.
B. Any other relief/reliefs deemed fit may also be granted."
3. Learned counsel for the petitioner submitted that Rule 16 of Islamabad Judicial Service Rules, 2011 clarifies the position in this regard. The said Rule 16 is in the following words:- "16. Qualifications. --- (1) No person shall be appointed to a post in the service by initial recruitment unless,--
(a) in case of appointment to a post of Civil Judge-cum-Magistrate he,
(i) possesses a degree in law from a recognized university entitling him to practice the profession of law; and
(ii) has actively practiced the profession of law for not less than two years after having been enrolled as an Advocate; and
(b) in case of appointment to a post of Additional District and Sessions Judge, he, apart from possessing the qualification in sub-clause (i) of clause (a), must have actively been practicing the profession of law for a minimum period of ten years.
Explanation I.---For the purpose of sub-clause (ii) of clause (a) and clause (b) the expression "practicing the profession of law " shall include any period of Government service in the legal department or of a statutory organization or 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: or
(c) employee of Superior Courts."
4. Regarding maintainability of the petition learned counsel for the petitioner submitted that petition is not under Article 199(1)(a) or (b) but his petition is under Article 199(1)(c) because fundamental rights of petitioners are involved and when questions raised involve fundamental rights it is not necessary that the person be performing functions connected with the affairs of the Federation or a province or a local authority. Learned counsel submitted that in sub-clause (c) of sub-Article (1) of Article 199 words used or person or authority and therefore exclusion under Article 199(5) when person is defined is not applicable. He submitted that he has fundamental right of legitimate expectation. Learned counsel relied upon Union of India v. Alok Kumar and others AIR 2010 SC 2735.
5. Learned A.A.-G. Submitted that this petition is not maintainable and in this regard he relied upon Asif Saeed v. Registrar, Lahore High Court and others, PLD 1999 Lahore 350, Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCM R 632.
6. We have heard the submissions made by the learned counsel and have also gone through the record.
7. Regarding maintainability of the petition argument of the learned counsel was that he has filed this petition under Article 199(1)(c) because a fundamental right of the petitioners is involved. His submission was that word "person" is defined under Article 199(5) of the Constitution and no doubt it ...Excludes High Court, Supreme Court or Court or Tribunal established under a law relating to the Armed Forces of Pakistan. However, contention of the learned counsel was that if fundamental right is involved a writ can be issued to a High Court also because in Article 199(1)(c) beside word 'person' word 'authority' is also used. Precisely same contention was raised in Asif Saeed's case (Supra) and a learned Full Bench of Lahore High Court dealt with that contention in the following words:--- "27. The other arguments of Mr. Hamid Khan, that under the provisions of Article 199(1)(C), the expression "Authority" is distinct from the "persons" within the contemplation of Article 199(5), therefore, whenever the question involved is regarding the. Enforcement of fundamental rights and violation is attributed to the High Court, writ would be competent. This submission has been well answered by the Deputy Attorney-General, that Article 199, has in fact conceived the High Court as a "person" not as a authority. It is for this reason that the expression "person" has been specifically and separately defined. Besides; if the argument of learned counsel for the petitioner is accepted, it would mean that even the judicial orders passed by the High Court alleged to be in violation of fundamental rights, could be challenged in the writ calling the High Court as "Authority."
8. In Muhammad Iqbal's case (supra) case of Asif Saeed was approved in the following words:- "(7) The view held by Lahore High Court is challenged in the light of Mahesh Parkash's case (supra), which is very well distinguished by Mr. Justice Mian Saqib Nisar speaking on behalf of the Full Bench in Asif Saeed's case (Supra). The learned Judge distinguished the Indian ruling on the ground that there are no provisions in the Indian Constitution analogous or parallel to Article 199(5) of our Constitution. Secondly, it was reasoned that the Indian Supreme Court was of the view, despite no analogous provision in their Constitution, that no writ would lie against the judicial order of a High Court. Meaning thereby "that the true purpose of this sub-Article is more pointed towards protecting the non-judicial actions/orders/steps of this Court rather than its judicial orders". We perfectly agree with the view taken by Lahore High Court that all judicial orders passed by a High Court can be challenged in accordance with the Constitution or the law and are individually and specifically protected. For such purpose of protecting judicial orders, there was no need absolutely to enact the provisions of sub-Article (5) of Article 199 and that such provisions were given in the Constitution to protect, rather, the non-judicial orders of the High Court. We are further of the view that if such orders are allowed to be challenged before the same High Court, it would lead to creating ludicrous situations and hazardous consequences.
(8) If a Chief Justice of a High Court transfers a subordinate officer, so to say, in his administrative capacity and if the same is set aside by another Bench of the same High Court, one can well imagine the devastating consequences. This can be visualized about any order of the High Court and the resultant consequences thereof. It runs diametrically opposed to the principles of comity and can lead to the complete destruction of judicial as well as administrative fabric of the institution."
9. The above is the complete answer to contention of the learned counsel. We, therefore, hold that this petition is not maintainable.
10. Since extensive arguments were heard on merits, we may while passing make a few observations in this regard. Under the notification only persons with six years experience as an advocate of High Court and subordinate Courts or persons who have held judicial office for six years are eligible. Admittedly none of the petitioners has been advocate for six years and none of the petitioner has held a judicial office. Contention of the learned counsel was with reference to Rule 16 of Islamabad Judicial Service Rules, 2011 wherein explanation has been provided which A declares any period of Government Service in the legal department or of a statutory organization or, interia, of a superior court. No such explanation is provided in the Rules of this Province.
Therefore, the mere fact that Islamabad High Court has made different provisions does not mean that they become applicable to this province. Since the petitioners do not fulfill qualification they were not entitled to be included in the consideration. Inclusion of DDPP standing at different footing because every prosecutor is also a practicing advocate at the same time.
11. Result of the' above discussion is that these constitutional IB petitions are dismissed in limine.
Pending applications are disposed of.