1. QAISER RASHID KHAN, J.--- Through the petition in hand, the petitioner has sought declaration to the effect that "conditions prescribed and given in the advertisement No.5257 dated 3.8.2015 published in Daily newspapers as well as on the website of Peshawar High Court for the posts of Additional District and Sessions Judges are against the Khyber Pakhtunkhwa (NWFP) Judicial Service Rules, 2001 and are ineffective upon the rights of the petitioner and liable to be set aside and the same therefore be declared as ultra vires, void ab-initio as the same are contrary to the law, the Constitution of Islamic Republic of Pakistan, 1973, and the petitioner being eligible/ qualified for the posts mentioned above by all means, hence be declared eligible in all respects for the above posts."
2. 2.Relevant facts as averred in the petition are that the petitioner is a law graduate from Peshawar University and has been practicing as an advocate since 2003 being a member of the District Bar Association Abbottabad and that the petitioner proceeded to United Kingdom for her higher education and after successful completion of Masters in law degree in the year 2010-11, returned to Pakistan and joined a law firm as an Associate at Islamabad and started appearing before the High Court as well as lower courts of Khyber Pakhtunkhwa. In the meanwhile, posts of Additional District and Sessions Judges were advertised in the newspapers as well as on the website of the Peshawar High Court wherein a condition of five Wakalatnamas per year for the last five years was added in disregard to the Khyber Pakhtunkhwa Judicial Service Rules, 2001 though the petitioner has to her credit eleven years standing as practicing advocate and that is how the petitioner being aggrieved from the said amendment in the Rules has filed the instant petition.
3. 3.Yesterday, the petition was fixed before another Hon'ble Bench of this court but since it was headed by his lordship Mr. Justice Nisar Hussain Khan being a member of the Administration Committee, therefore, this petition was directed to be placed before this Bench. We accordingly put the respondent No.1 i,e, the Registrar, Peshawar High Court Peshawar on notice and adjourned the proceedings for today. Since in the morning the learned counsel for the petitioner was not available, therefore, we put off the proceedings and took up the petition at 12:15 p.m.
4. 4.The learned counsel for the petitioner contended that the petitioner is a practicing advocate and has been in the profession since the year 2003 and barring her journey to U.K for her LL.M degree, she remained a regular practitioner. He next contended that during all these years she has attained sufficient legal knowledge and has appeared invariably before different courts and in the process she has also been enrolled as an advocate of the High Court in the year 2014. He referred to the Khyber Pakhtunkhwa (NWFP) Judicial Service Rules, 2001 and contended that as per Rule 7
(b) the practicing Advocate of High Court and / or the Courts subordinate thereto with a minimum practice of eight years is eligible to be appointed to a post of Additional District and Sessions Judge/Izafi Zilla Qazi, apart from possessing the other qualifications detailed in clause (a) of Rule 7.
5. He thus vehemently argued that despite possessing the requisite qualification and experience, the petitioner has not been allowed to appear in the upcoming written examination for the post of Additional District and Sessions Judges. He lastly contended that the condition as imposed in the advertisement regarding five Wakalatnamas per year for the last five years is in disregard to the Rules and is against the basic fundamental rights of the petitioner and thus prayed that the said condition be declared as ultra vires, against the Rules, be set aside and the petitioner be declared eligible to sit in the upcoming written exam to be held next week. He placed reliance on the following judgments: Muhammad Nadeem Arif and others v. Inspector General of Police Punjab, Lahore and others" (2010 PLC (C.S.) 924), "Tahmasub Faraz Tayyab and 13 others v. Vice-Chancellor, University of Health Sciences, Lahore and 3 others" (PLD 2005 Lahore 261), "Lt. Col. Nafis-ud-Din Ansari v. Qazi Habibullah and others" (PLD 1989 Lahore 26), "M. Adil Hayat Khan v. Government of Sindh and others" (PLD 2002 Karachi 131), "Abdul Aziz and another v. Government of Khyber Pakhtunkhwa through Chief Secretary and 3 others" (2015 PLC (C.S.) 958), "Zafar Javed and 6 others v. Executive District Officer (Revenue) Okara and 2 others" (2015 PLC (C.S.) 442) and "Federal Public Service Commission and others v. Altaf Hussain and others" (2015 PLC (C.S.) 1130).
6. 5.Since the Worthy Registrar was put on notice, therefore, Barrister Ikhtiar Khan Incharge NJPIC and Mr. Imranullah Assistant Legal Draftsman Peshawar High Court appeared on behalf of the Registrar to assist this court.
7. 6.Mr. Ikhtiar Khan gave us a brief background of the advertisement and stated that since 25 posts of Additional District and Sessions Judges were vacant for the last about 1-1/2 year and there was a dire need to fill those vacancies, therefore, initially the posts were advertised through advertisement dated 9.11.2014 whereby the candidates had to undergo a screening test followed by written examination through O.T.S (Open Testing Service). In the screening test 596 candidates appeared and only 140 candidates with higher marks were called for written test wherein the criteria laid down for a successful candidate was to score 60% aggregate marks but none could qualify the written exam from amongst the 140 candidates. He stated that thereafter the representatives of the lawyers community from the entire province including the President of the High Court Bar Association Peshawar, the Vice-Chairman KPK Bar Council, President High Court Bar Association Abbottabad and other officer bearers of various Bar Associations approached the Hon'ble Chief Justice in order to find some solution or a via media to hold the examination for the posts of Additional District and Sessions Judges at the earliest and that is how on the directions of the Hon'ble Chief Justice, a meeting chaired by the Registrar Peshawar High Court was held on 24.7.2015 minutes whereof is marked as "A" wherein all the representatives of the Bar Council including the Presidents of the High Court Bar Associations as, well as the Vice-Chairman of the Provincial Bar Council and other members of the Provincial Bar Council participated and they suggested that instead of conducting a screening test practical experience of law of the candidates must be kept in view while holding exam for the posts of Additional District and Sessions Judges so as to bring competent, experienced and law knowing persons adorning the seats of the Judges. They thus proposed that besides other qualifications, minimum five Wakalatnamas per year for the last five years be fixed as one of fir eligibility criteria. He stated that it was a unanimously agreed decision and was accorded approval by Hon'ble the Chief Justice being Chairman of the Administration Committee of the High Court as well as of the Selection Board. He lastly stated that in order to afford full opportunity to the candidates, the Peshawar High Court re-advertised the said posts on 3.8.2015 and a total number of 519 candidates applied for the said posts, however, only 73 candidates were found eligible while the remaining had some deficiencies. He added that a detailed list was uploaded on the official website of the Peshawar High Court and time period was extended on the request of the representatives of the lawyers community in order to meet the deficiencies. He further added that during the extended time 397 candidates were provisionally accepted and list whereof was displayed on the official website of the Peshawar High Court. He contended that Hon'ble the Chief Justice was pleased to allow application forms of the candidates who had submitted 20 Wakalatnamas instead of 25 and even of those candidates who had submitted Wakalatnamas in jointly conducted cases. He further added that a disclaimer was also uploaded on the official website of the Peshawar High Court wherein three days time was again extended to the candidates aggrieved of the rejection of their application, forms. He contended that three days more time was allowed to the candidates in order to make up for the deficiencies and in the process eleven other candidates were placed in the category of eligible candidates after fulfilling the deficiencies. He lastly stated that all through this process, the petitioner never for once approached the Incharge Examination of the Peshawar High Court as she was lacking the requisite criteria but only filed the present petition. At the tail end, he stated that the written examination would be held on 16th, 17th and 18th of this month and roll numbers have been duly issued to the candidates.
8. Arguments heard and available record perused.
9. 7.All that the petitioner contends is that after her enrollment in the year 2003, she has been regularly appearing before different courts of law except for a brief interregnum when she left for U.K. to do her Masters in Law in 2010 whereafter she returned to Pakistan in the year 2011 and then continued with her practice and even joined a law firm at Islamabad as an associate and in the year 2014 she was enrolled as an Advocate of the High Court but still through the change brought about in the criteria, she is debarred from participating in the ensuing examination for the post of Additional District and Sessions Judge though otherwise she possesses all the desired criteria.
10. 8.From the available record as well as submissions made by the learned counsel for the petitioner and the Incharge NJPIC Peshawar High Court we understand that despite a huge backlog of cases pending disposal, 25 posts of Additional District and Sessions Judges have been vacant for the last 1-1/2 year and in order to select competent and capable Judges, the idea for holding a screening test followed by a written examination was proposed and pursuant to advertisement dated 9.11.2014, the said test was held wherein 596 candidates participated but 140 candidates out of the lot qualified the screening test. They, however, did not manage to qualify the follow up written test.
11. It was in such background that the representatives of the lawyers community approached the Hon'ble Chief Justice and a meeting was convened in which all such representatives of the Bar Associations as well as the Bar Council participated and unanimously proposed for the condition of five Wakalatnamas per year for the last five years for the prospective candidates. It appears the idea was to weed out the non-practicing lawyers who after enrolment as advocates join different vocations but make their presence felt during elections of the Bar Association and even influence the results. These absentees from the legal profession also surface when a political party of whose ideology they claim to be the adherents comes to power and when they vie for benefits with the backing of the enrolment certificates of the lower court and superior courts to their credit. Coming as it from the representatives of the lawyers bodies, the proposal earned a wide acclaim except the petitioner who has thrown challenge to the present criteria.
9. Another intriguing aspect which has caught the attention of this court is that despite pleading to be a practicing advocate for the last 12 years, the petitioner has not brought on record even copy of a single Wakalatnama evidencing the fact that she ever remained a practicing advocate during the last five years. More so, despite claiming to be an Associate of a Law Firm at Islamabad, she has failed to produce any joint Wakalatnama of that chamber or any list of cases conducted by her jointly in that chamber. She has only produced certificates dated 23.2.2015 and 13.8.2015 issued by the President High Court Bar Association Abbottabad and President District Bar Association Abbottabad to the effect that she is a regular practicing lawyer. Despite ample opportunity afforded to her, she has not come up with the requisite Wakalatnamas showing her to have represented her client in his capacity as a petitioner or respondent in any court of law or any list of cases. At this point it would be more apt to refer to Rule 7 of the KPK Judicial Service Rules, 2001 which is reproduced below:-- "Rule 7 Qualification:- (1) No person shall be appointed to a post in the service by initial recruitment unless he/she; (a)in case of appointment to 'a post of Civil Judge cum-Judicial Magistrate/Alaqa Qazi, possesses a degree in law from a recognized University entitling him/her to practice the profession of law or is a Barrister of England or Ireland or is a Member of the Faculty of Advocates of Scotland.
12. Explanation.-- For the purpose of this clause, the expression "practiced the profession of law" shall include any period of government service by a person as Government Pleader, Public Prosecutor, Additional Government Pleader or Additional Public Prosecutor on behalf of Government; (b)in case of appointment to a post of Additional District and Sessions Judge/ Izafi Zilla Qazi, apart from possessing the qualification in clause (a), is also a practicing Advocate of High Court and / or the Courts subordinate thereto with a minimum practice of eight years.
13. Provided that the experience of practicing as an Advocate shall also include the service rendered as Public Prosecutor, Government Pleader, Additional Public Prosecutor or Additional Government Pleader."
14. The phrase "Practicing Advocate" as it appears in Rule 7(b) of the KPK Judicial Service Rules 2001, of course, is not merely for ordinary consumption but has a definite meaning behind it. In the Merriam-Webster Dictionary the word "Practicing" has been defined as "actively engaged in a specified career or way of life".</i> In the Dictionary.Com it has been defined <i>"to perform or do habitually or usually: to practice a strict regimen", "to follow or observe habitually or customarily: to practice one's religion:", "to exercise or pursue as a profession, art, or occupation: to practice law" </i>In the Law Dictionary Featuring Black's Law Dictionary Free Online Legal Dictionary 2nd Ed, the word "Practice" has been defined as <i>"The form or mode of proceeding in courts of justice for the enforcement of rights or the redress of wrongs, as distinguished from the substantive law which gives the right or denounces the wrong. The form, manner, or order of instituting and conducting a suit or other judicial proceeding."
15. 10.Keeping all these definitions in view, we understand that the lawyers body by rising above their trivial personal considerations have done justice to the phrase itself by including the "Practicing advocates" in their fold and that too, for such exalted posts as the Additional District and Sessions Judges (BPS-20). Even otherwise these Judges so appointed consequent to the advertisement dated 3.8.2015 would be deciding very important issues of civil and criminal nature, at times a matter of life and death for the litigant public. As such it is not merely their the oritical knowledge which is of essence but rather their deep involvement in the legal profession i,e,, going from one court to another in the hot summer seasons with their uniforms drenched in sweat and in the rainy seasons with their muddy shoes. It is indeed such legal practitioners who fill in the criteria of "Practicing Advocates" and through the voice, vote of the lawyers representatives, indeed their dream has come true. We thus understand that the lawyers representatives have done a yeoman service to the lawyers community through the present change brought about in the criteria by upholding merit. This is indeed a feather in the cap of the lawyers body and would go a long way in bringing about a qualitative change in the overall performance of the subordinate judiciary.
16. 11.We cannot lose sight of the fact that it is not just in the case of appointments in the judiciary but in other departments as well where higher qualifications and experience have been made the sine qua non for promotion to higher grades. To quote an instance, back in the seventies, a person with just a Masters degree appointed in a University as a Lecturer would surely and safely end up as a Professor in the twilight of his educational career but gone are the days. In the present times, a person without a Ph.D. is not welcome in the portals of University and he cannot dream of becoming even an Associate Professor. By a necessary corollary, the present criteria should not be an anathema to the sentiments of an individual when the lawyers community of the entire Province has not only hailed it but have deemed it to be in the supreme interest of the lawyers and in turn the judiciary. Thus we are not persuaded with the arguments of the learned counsel for the petitioner whereby he has termed the condition regarding the five Wakalatnamas per year for the last five years to be in any manner violative of the fundamental rights of the petitioner. We do not see any embargo placed as such on the powers of the High court to give true meaning to the phrase "Practicing Advocate", of course, in the supreme interest of the judiciary. In the process it would also help in minimising the concept of non-practicing advocates or absenteeism from the legal profession. The judgments cited by the learned counsel for the petitioner are altogether distinguishable from the case of the petitioner.
12. In the case titled "Government of NWFP Health and Social Welfare Department v. Dr. Sheikh Muzaffar lqbal and others" (1990 SCMR 1524) the august apex court has held that "the government has the right to enhance the qualifications and the standards for recruitment and promotion in order to maintain efficiency in service." Drawing wisdom from the said judgment, the act of the High Court is in line with the judgment of the august apex court. We have also before us the judgment of the august apex court titled "Muhammad lqbal and others v. Lahore High Court through registrar and others" (2010 SCMR D 632) wherein it has been held that "All non judicial or administrative orders of High Court were protected under Article 199(5) of the Constitution."
17. Similarly wisdom is drawn from case titled "Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another" (2011 SCMR 1864). Moreover, barring the petitioner all the candidates from across the Province are fully geared up to appear in the ensuing examination being a week away with added enthusiasm and accepting the request of the petitioner would tantamount to putting the entire examination process topsy-turvy to the chagrin of the lawyers and detriment of the judicial service.
18. In view of the foregoing discussion, this writ petition being bereft of any merit is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.