' QAISER RASHID KHAN, J.--Through this single judgment we intend to dispose of the following writ petitions as common questions of law and facts are involved therein:
1. W.P. No, 4441-P/2015 "Abdul Nasir etc. v. Govt. Of KPK etc."
2. W.P. No, 4194-P/2015 "Kamran Ullah and others v. Govt. Of KPK etc".
3. W.P. No,3914-P/2015 "Waheedullah Advocate v. Govt. LIM etc".
4. W.P. No, 146-P/2015 "A rasi .Ab Yousafzai etc"..
5. W.P. No, 178-P/2016 "Muhammad Dawood Shah v. Govt. Of KPK etc".
6. W.P. No,03-A/2016 "Muhammad Shakeel v. Govt. Of KPK etc".
2. In W.P. No,4441-P/2015, it is prayed that:--
(a) By inserting the Explanation I to Rule 16 of the Islamabad Judicial Service Rules, 2011 in the KP Judicial Service Rules 2001 and notification dated 26.8.2015 and declaring, the petitioners as eligible in terms of their services rendered by them in the Judiciary.
(b) By directing the respondents Nos.3 and 4 to follow Rule 6 of the KP Judicial Service Rules 2001 regarding age relaxation in its true essence as the same has not been amended so far and mere policy letter of the establishment department dated 24.7.2014 may not have an overriding effect in this regard.
(c) By directing the respondents Nos.3 and 4 to declare the petitioners eligible and allow them to appear in the forthcoming examination.
3. It has been averred in the petition that the petitioners are currently employed in the Peshawar High Court, Mingora Bench at Swat as Stenographer and Assistant respectively; that pursuant to advertisement in the year 01/2013 dated 3.10.2013 applications for the vacant posts of Civil Judges/Judicial Magistrates were invited and the petitioners fulfilling the eligibility criteria provided therein offered their candidature; that respondent No,4 re-advertised the said posts but with slight different eligibility criteria in qualification on the basis of Notification No E&A/LD/2-2/14/Vole-VII, dated 26.8.2015 in light of judgment passed by the Supreme Court of Pakistan. In Civil Appeal No,1033/2013; that the petitioners are serving in the Superior Judiciary of the Province with maximum years of service along with LL.B; that as per general conditions of the advertisement dated 26.8.2015 age for the Government Servants has been relaxed by two years on the basis of Establishment Department letter/policy dated 24.7.2014, hence the petition.,
4. In Writ. Petition No, 4194-P/2015, the petitioners have prayed as under: I. That the impugned notification dated 26.8.2015 may be restricted and confined for the fresh candidates applying for the post of Civil Judge/Judicial Magistrate/Illaqa Qazi exclusive of retrospective effect so as to secure the ends of justice. II. That in order to safeguard the valuable rights of the petitioners the respondents may kindly be directed to re-advertise the above mentioned posts keeping in view all lacunas violating the fundamental rights of the petitioners as well as to include all previous candidates who applied for the same posts advertised by the Hon'ble High Court.
III. The age limit for the post of Civil Judge/Judicial Magistrate/ Illaqa Qazi may graciously be enhanced in the case of old candidates/petitioners to cover the period spent in litigation process.
IV. The advertisement issued by the Public Service Commission may graciously be amended to abolish the two year practicing experience for the previous candidates/petitioners who applied for the said posts in the year 2013.
It has been averred in the petition that the petitioners are advocates by profession and members of Peshawar Bar Association; that pursuant to advertisement issued by the Peshawar High Court in the year 2013 inviting applications for the posts of Civil Judges-Gum-Judicial Magistrates with eligibility criteria, all the petitioners except petitioners Nos.1, 7, 8, 15, 21 and 23 being qualified applied for the same; that respondent No,2 issued notification dated 26.8.2015 prescribing age limit for the post of Civil Judge-cum-Judicial Magistrate as 23 to 32 years; that when advertisement dated 3.10.2013 was issued by the Peshawar High Court for the same post, the petitioners already having availed the chance of age relaxation were declared eligible by the Humble Peshawar High Court but under the 2nd advertisement dated 22.10.2015 issued by the KPK Public Service Commission, the same candidates exceeded the period of their upper age limit; that advertisement No,7/2015 dated 22.10.2015 issued by the KPK Public Service Commission clearly stating that the candidates who had already applied to the Peshawar High Court Peshawar for the posts of Civil Judges should apply afresh to the Public Service Commission with different eligibility criteria, hence the petition.
5. In W.P. No, 3914-P/2015 the petitioner has prayed as under: "That on acceptance of the instant writ petition the impugned notification dated 26.8.2015 may be declared as illegal, unlawful, void a initio and without lawful authority and its restrictive clause, debarring petitioner to apply for the post of Civil Judge/ Judicial Magistrate/Illaqa Qazi may be treated nonexistent upon the rights of the petitioner so as to secure the ends of justice"
' It has been averred in the petition that the petitioner is a lawyer by profession and member of the Peshawar Bar Association and was granted license by the KPK Bar Council; that pursuant to advertisement No,01 dated 3.10.2013 applications were invited to which the petitioner applied being qualified for the same by depositing the requisite registration fee and examination fee; that the petitioner is aggrieved of the advertisement No,7/2015 dated 22.10.2015 of the KPK Public Service Commission whereby applications for 120 vacant posts of Civil Judges/Judicial Magistrates/Illaqa Qazi have been invited but with an eligibility criteria different from the one in the advertisement dated 3.10.2013; that notification dated 26.8.2015 issued by respondent No,2 on the directions of the Chief Minister of Khyber Pakhtunkhwa whereby the existing rules/criteria governing the subject have been amended giving birth to a complex situation, hence the petition.
6. In W.P. No, 178-P/2016, the petitioner has prayed as under: "That on the acceptance of this writ petition this august court may graciously be pleased to issue an appropriate writ to the respondents thereby:
(i) Declaring the impugned letter issued by the respondents as illegal, without lawful authority, void a initio and of no legal effect to the extent of the petitioner.
(ii) Respondents may graciously be directed to consider the petitioner as eligible candidate and to issue him with Roll Number slip as to sit and appear for the said examination, test/ interview etc".
' It has been averred in the petition that the petitioner is serving as Assistant Private Secretary in the NAB and being a law graduate, through proper channel applied for the post of Civil Judge/Judicial Magistrate vide advertisement No, 07/2015 dated 22.10.2015; that prior to the said advertisement the petitioner applied for the said posts and was considered eligible under the criteria mentioned by the Humble High Court; that the petitioner fully concentrated on studies and prepared for the examination and other formalities but he has been declared as overage by respondent No,3 in spite of the fact that he met the criteria and was eligible to appear in the said examination as offered by the worthy High Court; that the petitioner made a representation to respondent No,3 for the redressed of his grievance but till date his representation has not been answered in spite of clear direction that person/candidates who had applied for the posts of Civil Judges advertised by the Peshawar High Court, Peshawar in 2013 and that respondent No,3 has issued a date sheet for the examination of the Civil Judges commencing from February 1st 2016, hence this petition.
7. In Writ Petition No, 03-A/2016 the petitioner has prayed as under: ' It is, therefore, humbly prayed that on the acceptance of the instant writ petition, the respondents Nos. 1 and 2 may please be directed to remove the discriminating and ousting condition for petitioner and entertain the application of the petitioner by allowing and admitting him in the forthcoming Civil Judges exam".
8. It has been averred in the petition that the petitioner is serving as a Lecturer in Law in Higher Education Department KPK on regular basis anti being law graduate and teaching law since 2012 to LL.B Classes at Justice Law College Abbottabad as well as at GPGC No,1 Abbottabad, pursuant to Advertisement No,01.Dated 3.10.2013 issued by respondent No,3 inviting applications for 77 vacant posts of Civil Judges-cumJudicial Magistrates/Illaqa Qazi, the petitioner applied for the same through proper channel by depositing the requisite registration and examination fee; that a notice was displayed on the website of the Peshawar High Court intimating the candidates to apply afresh for the same posts under the new advertisement of Khyber Pakhtunkhwa Public Service Commission and may apply to the Peshawar High Court for withdrawal of their previously deposited fee; that on 22.10.2015 the respondent No,2 issued advertisement No,7/2015 inviting applications for 120 posts of Civil Judges-cum-Judicial Magistrates./Illaqa Qazi wherein an additional condition in the eligibility criteria has been inserted requiring the applicants to have not less than two years practice as an advocate of High Court or courts subordinate to High Court and the candidates who had already applied under the Peshawar High Court's advertisement were directed to apply afresh, however, they were granted one time upper age relaxation; that the two years practicing condition as an advocate was not included earlier in the Peshawar High Court's advertisement issued by respondent No,3; that the petitioner applied for the said post afresh; that the petitioner was shocked to see his name in the list of ineligible candidates displayed by respondent No,2 on 20.12.2015, hence this petition.
9. The learned counsel for the petitioners came over to the rostrum one after another to put across their respective viewpoints. The learned counsel representing the petitioners in W.P. No, 1914-P/2014 contended that pursuant to advertisement No,1/2013 dated 3.10.2013, the petitioners being qualified had applied for the same by depositing the requisite registration and examination fees but due to 'pendency of cases before this court and then before the august apex court, further progress in the matter could not take place till the impugned advertisement No,7/2015 dated 22.10.2015 was published seeking applications and through a foot-note, applications were also invited from the petitioners as well though they had applied way back in the year 2013. He argued that as against the earlier advertisement of the year 2013, a condition was imposed on the applicants/candidates to have the minimum experience of two years after enrolment as an advocate before the High Court or in the subordinate courts. He contended that the said advertisement pursuant to the amendment in the Khyber Pakhtunkhwa Judicial Service Rules, 2001 has deprived not just the petitioner but hundreds of other law graduates as well from competing against the advertised posts. He argued that the claim of the respondents to have brought about the amendment in the rules regarding two years standing at the bar for the applicants, pursuant to the judgment dated 11.5.2015 of the august apex court in C.A. No,1033 of 2013 is also not based on correct facts as in that very judgment, the High Court was directed to add two years' experience at the bar to the eligibility criteria and certainly not the respondents to do it on their own and thus the respondents have deliberately misconstrued the judgment of the august apex court by drastically changing the criteria for the posts of Civil Judges/Judicial Magistrates/Illaqa Qazi and thereby the petitioners and other similarly placed candidates have been left out mala finely. Lastly, he contended that it was after a long wait of about seven years when finally the vacant posts of Civil Judges/Judicial Magistrates/Illaqa Qazi were advertised but through the amendment brought about in the rules and the subsequent advertisement, the petitioners have been debarred from applying for the posts in question. The learned counsel for the petitioners also referred to the minutes of the meeting held on 7.1.2016 in respect of age relaxation and experience criteria for the posts of Civil Judges-cum-Judicial Magistrates wherein it was decided that the candidates who had applied for the posts of Civil Judges advertised by the Peshawar High Court in the year 2013 and were found eligible according to the rules shall be allowed one time age relaxation and secondly that two years' experience at the bar cannot strictly be applied with retrospective effect to those candidates who shall be allowed to take part in the examination even if they are short of experience by a few months.
' The petitioner No,1 in W.P. No, 146-P/2016 came over to the rostrum and having the same grievance and prayer relied on the arguments of the learned counsel for the petitioners in W.P. No,3914- P/2014.
' The learned counsel for the petitioners in W.P. No,4194-P/2014 also argued on almost the same lines and contended that the amendment whereby the condition of two years' experience at the bar has been imposed on the applicants/candidates cannot be given retrospective effect to the detriment of the petitioners and other similarly placed persons.
' The petitioners in W.P. No, 4441-P/20'15 contended that they are working at Mingora Bench of this court as stenographer and assistant respectively and by all counts are engaged in the performance of the judicial work but through the amendment in the rules, they have been declared ineligible to compete for the posts.
' The petitioner in W.P. No, 178-P/2016 is serving as Assistant Private Secretary at the National Accountability Bureau at Peshawar who too, is aggrieved of the experience clause mentioned in the rules as well as the advertisement.
' The petitioner in W.P. No, 03-A/2016 teaches law to LL.B Classes at Justice Law College Abbottabad as well as at Degree College Abbottabad. He appeared in person and submitted that he has been teaching law since 2011 and has not just acquired knowledge about the different disciplines of law but in the process sufficient experience as well and that pursuant to advertisement in the year 2013 he had duly applied for the same by depositing the requisite fees but through the impugned advertisement he has become ineligible to compete for the posts.
10. The learned Advocate General KPK on his turn defended the impugned advertisement No,07/2015 dated 22.10.2015 and the amendment brought about in the Khyber Pakhtunkhwa Judicial Service Rules, 2001 whereby two years' experience at the bar has been made mandatory for appearing in the upcoming exam for the posts of Civil Judges. He contended that the said amendment was brought about in view of the observations of the Humble Supreme Court in C.A.
No,1033 of 2013 titled "Government of KPK and others v. Ghulam Nabi and others." He further argued that mere submission of applications by the petitioners pursuant to an advertisement made in the year 2013 did not confer any vested right upon them and it is even otherwise in the interest of the judicial service that a candidate should possess the requisite experience.
' Arguments heard and available record perused.
11. All that the petitioners are in essence aggrieved of is the Notification dated 26.8.2015 whereby an amendment was made in the Khyber Pakhtunkhwa Judicial Service Rules, 2001 in the following manner: "In rule 7, in sub-rule (1), in clause (a) after the word "Scotland", the words "and have practiced the profession of law in the High Court or in the Courts subordinate thereto, for a period not less than two (02) years after enrollment as an advocate", shall be inserted."
' It was followed by the advertisement No,07/2015 dated 22.10.2015 whereby the two years practice after enrolment as an advocate before the High Court or in the subordinate courts has been made as a pre-requisite for applying for the posts of Civil Judges. The primary contention of the petitioners is that the same was not the condition precedent while the posts were earlier advertised pursuant to an advertisement No,01 in the year 2013 when they had duly submitted their applications, deposited the requisite fees but due to the court proceedings the matter was held in abeyance till the decision by the august apex court in C.A. No, 1033 of 2013 and the follow up advertisement No,7/2015 dated 22.10.2015. The petitioners have directed all their anguish at the respondent- commission and held it responsible for bringing about the impugned amendment of two years' experience at the bar as an eligibility criteria for applying for the posts of Civil Judges.
12. We understand that the grievance of the petitioners as directed against the respondent- commission is both misplaced and misconceived. The respondent-commission did not act unilaterally while bringing about the said amendment.
' We have before us the judgment of the august apex court passed in C.A. No,1033 titled "Government of KPK v. Ghulam Nabi and others" wherein it was observed that: "As two years' experience is a pre-requisite for sitting in the competitive exam of judicial service in the Islamabad Capital and the Province of Punjab, its addition would be desirable in the relevant rules of KPK." / While allowing the appeal of the Government of KPK, it was again observed as follows: "We, therefore, allow this appeal and modify the impugned judgment to the extent hinted to above with the observation that it would be in the interest of fair administration of justice, if the High Court adds two years' experience at the bar to the eligibility criteria."
The amendment brought about in the relevant rules, regarding two years' experience at the bar was made through a proper consultative process of the High Court and the Commission after the judgment passed by the august apex court.
13. Even otherwise, a fresh law graduate coming out of the portals of the university with an LL.B decree and ending up as a Civil Judge would find himself in an altogether different atmosphere in the court room with no idea even to write a three lines order sheet, what to speak of the intricacies of recording evidence and then writing a judgment wherein the valuable rights of the general public are involved. Such circumstances on occasions would invite dependency relationship with the senior lawyers for some help in the judicial work and in the process compromising the dispensation of justice itself. Facing the rough and tumble of life in various court rooms, learning the basics and elementariness of pleadings from their seniors, following the process of recording evidence in the court room and understanding the smart moves of the senior counsel acclimatizing themselves with the atmosphere in the court room are all enriching experiences to which a fresh law graduate or a newly inducted Civil Judge with no experience as an advocate is not exposed. Thus, the requisite experience of two years at the bar is not only an enriching phenomenon both in terms of learning and education but also polishes the personality of a young law graduate or for that matter an advocate.
14. At this juncture it would be more apt to refer to the Legal Practitioners and Bar Councils Act, 1973 where in section 2(a) "Advocate" means, an advocate entered in any roll under the provisions of this Act. Similarly, in section 2 (k) "Roll" means the roll of advocates maintained by a Bar Council.
15. In the matter in hand, the petitioners in W.P. No,4441-P/2015 are serving at Dar-ul-Qaza Mingora as Stenographer and Assistant respectively. Though they had applied pursuant to advertisement of the year 2013 for the posts of Civil Judges/Judicial Magistrates were invited but they do not fulfill the desired criteria as far as the impugned advertisement laying down the criteria of two years' experience at the bar is concerned.
16. Similar is the case of petitioner in W.P. No, 03-P/2016 who is a serving Law Lecturer in the Department of Higher Education of Khyber Pakhtunkhwa. Admittedly, ever since passing his LL.B exam in 2011, the petitioner has devoted his time and energy towards teaching law at various institutions but has not practiced law as an advocate or for that matter has not been on the roll of the Bar Council. Same is the case of petitioner Muhammad Daud Shah in W.P. No,178-P/2016 who though a law graduate but opted for the first time to apply for the posts of Civil Judges/Judicial Magistrates pursuant to the advertisement No,07/2015 dated 22.10.2015. He too, does not qualify to be termed as an advocate as per section 2(a) of the Khyber Pakhtunkhwa Legal Practitioners and Bar Councils Act, 1973.
17. In the case titled "Faisal Noor Junejo v. High Court of Sindh through Registrar" reported in 2013 SCMR29, where the petitioner Faisal Noor Junior was employed as Judicial Assistant (BPS-17) in the august Supreme Court of Pakistan and petitioner namely, Nasir Ali Noor Qureshi, as Senior Translator at High Court of Sindh at Karachi applied for the post of Additional District and Sessions Judges (BPS-20), pleaded to have more than six years' experience in the august Supreme Court and the Humble High Court of Sindh and were thus eligible for being considered for the posts.
However, it was held by the Humble Supreme Court that the petitioners were not practicing advocates of the High Court or courts subordinate thereto and that the office of Judicial Assistant and that of Senior Translator were not at par with a "Judicial Office . "
18. Drawing wisdom from the said judgment of the august apex court and keeping in view the definition of an "advocate" as per the Act ibid coupled with the two years' experience at the bar as per the advertisement, we do not hold the above said petitioners eligible for the c posts of Civil Judges/Judicial Magistrates as they do not fulfill the required and desired criteria.
19. The other argument hard pressed by the learned counsel for the petitioners is that the amendment brought about regarding two years experience at the bar shall not have a retrospective effect and that it should be made applicable for candidates in future exam for the posts of Civil Judges/Judicial Magistrates. The said argument also does not appeal to reason. Mere submission of applications for the posts of Civil Judges/ Judicial Magistrates could not have conferred any vested right upon the petitioners to take the matter back to the year, 2013.
20. The august apex court in the case titled "Mushtaq Ahmad Mohal and others v. The Hon'ble Lahore High Court, Lahore and others" (1997 SCM R 1043) held as under in para 23 of the judgment: "It is evident from the above quoted extract that by now it is 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."
' In the case of "Sh. Muhammad Sadiq v. Federal Public Service Commission and others" (2013 SCM R 264) the contention of the candidate (petitioner) was that the calculation of his marks had to be made in accordance with the formula, which was in vogue at the time when he applied for his appointment, but Appointing authority had reviewed the same formula subsequently and changed it because of which he was declared unsuccessful and it was held that: "Candidate had no vested right to claim that, while making calculation, formula applicable at that time should be followed instead of the new formula, which was subsequently made applicable.
Appeal was dismissed in the circumstances."
' Similarly it was held in the case of "Dr. Alyas Qadeer Tahir v. Secretary M/O Education (Now M/O CADD), Islamabad and others" (2014 CMR 997) that "enactments of rules and amendments therein was the prerogative of the Government and the Government could enact and amend rules according to the needs and exigencies of service". It was also held by their lordships that "institutional interest shaped structure of a service and not individual interest."
21. The petitioners have failed to pinpoint any mala fide on behalf of the respondent-commission whereby only they have been discriminated against. It needs no reiteration that the institutional building phenomenon reigns supreme over the interests of individuals where the ultimate aim and objective as in the matter in hand is to bring about a qualitative change in the process of selection of judges. At this stage we are reminded of William Shakespeare's celebrated tragedy 'Julius Caesar' wherein it was so aptly said "It is not that I loved Caesar less, but that I loved Rome more."
In view of the above discussion, all these petitions stand IF dismissed.