' WAQAR AHMED SETH, J.--- Tipu Muhammad Sultan and another petitioners seek the constitutional jurisdiction of this Court praying for:--- "that on acceptance of this writ petition, the impugned rule 6 of the KPK Judicial Service Rules, 2011 read with the advertisement of the posts of Civil Judges/Judicial Magistrates and the difference of age for the practicing lawyers and others may kindly be made at par with and the impugned rule may very graciously be struck down being discriminatory and violative of Articles 4, 25 and 127 of the Constitution of Islamic Republic of Pakistan, 1973."
2. In essence, the petitioners have challenged the condition of upper age limit laid down in advertisement No,1 dated 3-10-2013 for the posts of Civil Judges/Judicial Magistrates/Illaqa Qazis.
3. Arguments heard and record perused.
4. As per contention of petitioners they are aggrieved of Rule 6 of Khyber Pakhtunkhwa Judicial Service Rules, 2001 which provide age relaxation to the extent of 10 years to the categories like Government Servants and to the candidates, who hailed from the back areas, whereas only three years to the practicing lawyers and the difference in the two categories is discriminating within the meaning of Articles 4, 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973. Rule 6 of KPK Judicial Service Rules, 2001 provides:-- "Age.-- (1) No person shall be appointed to the Service if:---
(i) in case of initial recruitment as Civil Judge-cum-Judicial Magistrate/Alaqa Qazi he/she is less than twenty three years and more than thirty two years of age; provided that;
(a) in the case of a Government servant who has served in connection with the affairs of the Federation or the North-West Frontier Province for a period of not less than four years, the upper age limit shall be automatically relaxed by 10 years or by the number of years the officer has actually served, whichever is less;
(b) in the case of Barrister or an Advocate of the High Court and/or the Courts Subordinate thereto or a Pleader, the period during which he / she practiced at the Bar shall, for the purpose of upper age limit under this rule, be excluded, subject to a maximum period of three' years from his/her age; and
(c) in the case of a person whose service under Government has been terminated for want of vacancy, the upper age limit shall be relaxed by 10 years or equal to the period of his/her actual service upto its termination whichever is less; and
(ii) in case of initial recruitment as Additional District and Sessions Judge fizafi Zilla Qazi, he/she is less than thirty five years or more than forty five years of age.
(2) For the purpose of this rule, age shall be reckoned as on the last date fixed for submission of applications for appointment.
5. This Rule and the Rules, 2001 have been framed under section 26 of the Civil Servants Act, 1973, similarly and all other appointments till date have been made in accordance with the same.
6. No doubt, Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees equality before law but the same does not mean equality of operation of legislation upon all citizens of the State. Equal protection of law forbids class legislation, but permits reasonable classification for purpose of legislation. Permissible classification is allowed by Article 25 provided classification is founded on intelligible differentia, which distinguishes persons or things that are grouped together from others, who are left out of groups. Such classification and differentia must be on rational relaxation to the object sought to be achieved by legislation. If a classification in the challenged law on the basis of any state of facts can be reasonably conceived that would sustain it and the burden of showing that it does not rest upon any reasonable basis, but is essentially' arbitrary lies upon one, who assails a classification as law should be served rather then destroyed and Court must lean in favour of upholding the constitutionality of a legislation.
7. In the celebrated case of L.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others reported as 1991 SCM R 1041, it has been held as under:--- "(I) Constitution of Pakistan (1973).
Art. 25(1)---All citizens are equal before law and entitled to equal protection of law---State, however, is not prohibited to treat its citizens on the basis of a reasonable classification--- Reasonable classification--Basis or criterion for classification as to avert violation of Art.25(1).
' Clause (1) of Article 25 of the Constitution of Pakistan (1973) enshrines the basic concept of religion of Islam. However, this is now known as the golden principle of modern Jurisprudence, which enjoins that all citizens are equal before law and are entitled to equal protection of law.
' However, the above clause does not prohibit treatment of citizens by a State on the basis of a reasonable classification.
' Following are the principles with regard to equal protection of law and reasonableness of classification:
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based---
(a) on an intelligible differentia which distinguishes persons or thing that are grouped from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
' Principles as to classification are as under:---
(a) A law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.
(b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The person, therefore, who plead/ that Article 25, has been violated must make out that not only has been treated differently .from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact;
(c) It must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds,
(d) The Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest:
(e) In order to sustained the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can he conceived existing at the time of legislation,
(f) While good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation;
(g) A classification need not be scientifically perfect or logically complete;
(h) The validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration".
8. Again in the case of Province of Punjab through Chief Secretary and another v. Samuel Bhatti and others reported as 2009 SCMR 1034, it was held as under:--- "(a) Constitution of Pakistan (1973)
Art. 25---Equality of citizens---Reasonable classification---State is not prohibited to treat its citizens on the basis of reasonable classification and it is not the intention of Art.25 of the Constitution that every citizen is to be treated alike in all circumstances, however, it would be applicable on the persons similarly placed or similarly situated---Where the persons were neither similarly placed nor were discriminated, Art.25 of the Constitution was not attracted/applicable." /
9. It is an admitted fact that since 2008, no recruitment of Civil Judge-cum-Judicial Magistrate/Alaqa Qazi was made due to filing of a writ petition regarding resolution of controversy for recruitment either by Provincial Public Service Commission or the High Court, as is done by the other High Courts of the country, and ultimately it has been decided that in future recruitment shall be made by the High Court itself whereas advertisement No,1 for the posts of Civil Judges/Judicial Magistrates/Illaqa Qazis has been published on 3-10-2013. In the meantime, the Government of KPK filed Civil Petition No,168 of 2013 and the apex Court while granting leave in the matter in concluding para probably keeping in view the shortage of Civil Judges/Judicial Magistrates/Illaqa Qazis and the agonies of litigants held as under:--- "However, in the meanwhile, the appointments process shall be initiated by the learned Peshawar High Court and pursuant to the recommendations so made, the formal orders shall be issued by the petitioner Government of Khyber Pakhtunkhwa".
10. In view of the said prolong gap of about seven years and providing an opportunity of participating in the process of test and interview upper age limit has reasonably been relaxed. The classification made in the advertisement is found based on reasonable distinction and needs no interference.
11. Under Rule 9 of Rules, 2001, 10 years upper age relaxation has been given to Government Servants and ones from the backward areas, as the civil servants are serving the nation and backward areas have no other allied facilities including at par the education etc whereas the petitioners' category is of practicing advocates, a private profession. Even otherwise, while claiming of such type of constitutional rights one has to show what he/she is contributing to the nation. The writ' petition is silent that how much income tax the petitioners are paying.
12. The State, the Provincial Government and the Department have IB the right to categorize different peoples, as per the principle of intelligible differentia.
13. Consequently, this writ petition being without substance is dismissed. No order as to costs.