' GULZAR AHMED, J.---Petitioners in both these petitions had applied for the ,post of Additional District and Sessions Judge BS-20, on the basis of advertisement dated 10-1-2012, published by High Court of Sindh in which eligibility was given as follows:- "ELIGIBILITY:
(i) He/She shall have a Degree in Law from a recognized University or a Barrister of Law from England or Ireland or is a Member of 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. Both these petitioners were found not eligible and therefore, they were not chosen for appearing in exam. Both the petitioners filed separate petitions in the High Court, where, by the impugned judgment dated 16-8-2012 they were dismissed.
3. Learned counsel for the petitioners has contended that petitioner Faisal Noor Junejo is employed as Judicial Assistant BS-17 in Supreme Court of Pakistan; while petitioner Nasir Ali Noor Qureshi is employed as Senior Translator BS-17 in the High Court of Sindh at Karachi and both the petitioners have more than six years service, respectively in the Supreme Court and High Court of Sindh and thus were eligible for being considered for appointment to the post of Additional District and Sessions Judge. He further contended that there was discrimination inasmuch as the Administrative Committee of High Court in its Minutes dated 14-2-2009 had allowed DA/DDA/DPP/DDPPP for taking test for selection of Additional District and Sessions Judge and both the petitioners are Law Graduates.
4. On Court notice, the Registrar of High Court of Sindh has filed para-wise comments. The Registrar has also filed today statement, which is taken on the record.
5. Learned Registrar has contended that as per rules the petitioners were not eligible for appointment, therefore, they were not selected for taking of examination.
6. We have considered the submissions and have also gone through the record.
7. The qualification/eligibility for appointment as an Additional District and Sessions Judge is contained in the Sindh Judicial Service Rules, 1994, Rule 8(1) of which is as follows:-- "8. Qualifications:-
(1) No person shall be appointed to a post in the service by initial appointment unless,--
(a) in the case of appointment to a post in the lower grade of service he possesses a degree in Law from a recognized University entitling him to practice the profession of Law or is Barrister of England or Ireland or is a Member of the Faculty of Advocates of Scotland; and
(b) he is practicing the profession of law or is a member of the staff of the Supreme Court, High Court of Sindh or Courts subordinate to the High Court of Sindh: ' Provided that the Civil Judges and Judicial Magistrates appointed on the recommendations of the High Court before the coming into force of these rules shall be deemed to have been appointed under these rules.
' Explanation: - ' The expression "practicing the profession of law" shall include any period of service of the State by a person as -
(a) Legal Assistant or Section Officer in the Law Department of Government of Sindh, only;
(b) Assistant Attorney;
(c) Assistant Solicitor; and
(d) Full time Prosecutor, authorized to conduct prosecution on behalf of the State in a Court;
(e) Civil servants, other than those mentioned above, who have served in connection with the affairs of the Province or Federation for a period of not less than three years.
(c) In case of appointment to a post in the upper grade of service, i,e, [Senior Civil Judges and Assistant Sessions Judges] he, apart from possessing the qualifications in clause (a) is also a practicing Advocate of High Court and the Courts subordinate thereto with minimum practice of four years;
(d) In case of appointment to a post of Additional District and Sessions Judge, he, apart from possessing the qualification in clause (a), is also a practicing Advocate of High Court and the Courts subordinate thereto with minimum practice of six years [or he has for a period of not less than six years, held a judicial office with clean record of service];
(e) In case of initial appointment as District and Sessions Judge, he, apart from possessing the qualification mentioned in clause (a) is also a practicing Advocate of the High Court and the Courts subordinate thereto with a minimum practice of ten years or he has held a judicial office for not less than ten years with clean record of service.]"
8. The relevant rule for consideration is clause (d) and it provides qualification for appointment of Additional District and Session Judge apart from possessing the qualification in clause (a) is also a practicing Advocate of High Court and the Courts subordinate thereto with minimum six years or has held a Judicial Office for a period not less than six years with clean record of service.
9. At the outset, it was admitted by learned counsel for the petitioners that petitioners were not practicing Advocates of High Court or the Courts subordinate thereto. He further stated that the petitioner could be considered to be holding the post of Judicial Office and therefore would be qualified. We are not persuaded to agree with this submission of learned counsel for the petitioners for the reasons that Office of Judicial Assistant and that of Senior Translator will not come at par with that of Judicial Office. The term "Judicial Office" has been defined in Ballentine's Law Dictionary (Third Edition) which is as follows:-- "Judicial Office.--- An office constituting a part of the judicial department of government. People v.
Ransom, 58 Cal 558. An office, the duties and functions of which are principally judicial. People v.
Jackson, 191 NY 293, 84 NE 65. An office for the administration of justice by the person appointed or elected to the office, not by one acting under delegated authority. Twenty Per Cent Cases (United.
States v. Fitzpatrick) (US) 13 Wall 568, 20 L Ed 707."
10. The word "Judicial" in Black's Law Dictionary (Eighth Edition) has been defined as follows:- "judicial (joo-dish-el), Adj.
1. Of, relating to, or by the court or a judge < judicial demeanor > .
2. In court the witness's judicial confession> .
3. Legal .
4. Of or relating to a judgment (an award of judicial interest at the legal rate> . Cf. JUDICIOUS"
11. As the judicial office obviously will have its functions and the term "judicial function" was considered by a learned five Member Bench of this Court in the case of Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others (PLD 1957 SC (Pak) 91) as follows:-- "Generally speaking a person performs judicial functions if he is enjoined by the law to adjudicate upon and determine, as between the parties, some controversy relating to the existence or non- existence of a right or liability whether such right or liability be the creation of common law or statute, provided the right or liability is actionable either under the general law or special law, and the duty to determine the controversy is derived from the State and rests on the ascertainment, with notice and opportunity to parties of the facts and the law applicable to them and not on policy expediency or some other extraneous consideration."
12. It was not the case of counsel for the petitioners that petitioner were holding judicial office or performing judicial functions as have been defined and enumerated above. We, therefore, do not agree with the arguments of learned counsel for the petitioners that petitioners were at all holding judicial office.
13. We may note that the cases of DA/DDA/DDP/DDPPP is also not at par with that of present petitioners because DA/DDA/DDP/DDPPP are Enrolled Lawyers and practicing Advocates in Courts of Law. By the Minutes of 14th February, 2009, they were allowed to appear in the test conditionally subject to approval of recommendations by the Government and we are informed by the learned Registrar today that no such approval has so far been given by the Government, however, their selection and appointments will be subject to such approval by the Government.
14. In this view of the matter no case has been made out by the petitioners for interfering in the impugned judgment. Both the petitions are therefore dismissed and leave is refused.