IJAZ ANWAR, J. - Through the instant, writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Mian Sibghat Ullah Shah, the petitioner, has made the following prayer:- "On acceptance of this petition, declare the said advertisement illegal, not according to law/rules and also direct the respondent to re-advertise the said posts according to law/rules and justice after the disposal of the case of the petitioner with immediate effect which is the requirement of natural justice and equity."
2. In essence, the grievance of the petitioner is that the advertisement published by the respondent on 11.8.2017 for the posts of Additional District and Sessions Judges (BPS-20) is against the law and in violation of the rules.
3. The respondent filed comments, wherein the allegations were categorically denied.
4. The petitioner, who is lawyer by profession, argued that the advertisement issued by the respondent for the recruitment of Additional District and Sessions Judges is in violation of Khyber Pakhtunkhwa Judicial Service Rules, 2001, as not only the minimum age of the candidates have been reduced from 35 to 33 years but the candidates belonging to FATA have also been allowed to compete in the process of recruitment, while in the Judicial. Service Rules, ibid, only bonafide residents of Khyber Pakhtunkhwa are allowed to apply. He by referring to Article 1 of the Constitution of Islamic Republic of Pakistan argued that. FATA is not part of Khyber Pakhtunkhwa, therefore, the candidates belonging to FATA have no right whatsoever to apply for the said posts.
He next argued that condition of submitting five wakalatnama per year of the decided cases of last five years is alien to the Rules, ibid, and it has been inserted without recourse to the prescribed mode for framing rules, as such, such condition is against the law. He further argued that it was decided that only top 45 candidates in the screening test will be allowed for the writte n examination but the respondent has called 56 candidates in violation of the rules. He also argued that there was also mis-management in the conduct of screening test besides cheating in the Hall.
5. We have considered arguments of the petitioner and perused the record.
6. During the course of arguments, the petitioner in response to the query , as to whether he was within the age limit prescribed, if so, had he applied for the screening test, his answer was in affirmative, however , he was of the view that he did it under protest.
We find that at the time of publication of the advertisement there was no problem with the petitioner and everything was okay/ satisfactory as he applied in pursuance of the advertisement published by the respondent for the appointment of Additional District and Sessions Judges. He provided the requisite attested wakalatnamas, duly participated in the screening test and when could not find place in the top forty five candidates, he then turned around and questioned the advertisement for multiple reasons. Besides, none of the requisite conditions has violated any of his fundamental rights as he was merely a candidate and applied in pursuance of the advertisement.
7. The method of recruitment has been provided in Rule 5 of the Khyber Pakhtunkhwa Judicial Service Rules, 2001. The Rules allow filling of the post of Additional. District and. Sessions Judgeilzafi Zila, Qazi through two modes, either by promotion or by direct recruitment. There is two-third quota for promotion from amongst the holder of the posts of Senior Civil judge-cum Magistrate/Aala Alaqa Qazi and one-third by initial recruitment. Rule 5 (c) (i) &
(ii) being relevant, is reproduced as under:- Method of Recruitment: Appointment to service shall be made in the following manner: (a)...
(b)...
(c) Appointment to a post of Additional District and Sessions Judgefizafi Zilla Qazi shall be made to the extent of
(i) not less than two-third by promotion, on the recommendation of Departmental Promotion Committee from amongst the holders of the post of Senior Civil Judge- cum-Magistrate, empowered under section 30 Cr.P.0 /Aala Alaq Qazi, and; (ii). Not more than one-third by initial recruitment from amongst the members of the Bar, Public Prosecutors/ Government Pleaders and Additional Public Prosecutor/Additional Government Pleaders: Similarly, Rule 7 provides the qualification for appointment, while Rule 8 prescribed the eligibility criteria to the post of Additional District and. Sessions Judges, The same for facilitation of reference are reproduced as under:-
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 decree 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 Advocate of Scotland.
Explanation (a)...
(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.
8. Eligibility:- (1) No person shall be initially appointed to the service unless he/she:-
(a) is a citizen of Pakistan and is bonafide resident of the Khyber Pakhtunkhwa,
(b) Produces a certificate of character from the Principal Academic Officer of the academic institution last attended and also certificates of character from two other respectable persons, not being his/her relatives, who are well acquainted with his/ her character and antecedents, and
(c) is declared to be physically fit by a Board of Medical Officers, appointed by the Government.
From the above rules, it is, thus, clear that emphasis for appointment to the direct quota is from amongst the members of the Bar and practicing lawyers of the High Court's/District. Courts or Public Prosecutors etc. It needs no elaboration that Bar Associations are situated in the settled area and there is no restriction on allowing license of advocacy to the residents of FATA, thus, they are members of the Bar and practicing lawyers of the High Court's/District Courts since creation of this country , therefore, they cannot be denied to be considered in the matter of appointment.
8. Besides, in terms of Article 241 of the Constitution of Islamic Republic of Pakistan, 1973, the provincial Govt. has, vide notification N SOS.III(S&GAD) 3-39/70 dated 2.10.1973, notified zonal allocation, according to which for the initial recruitment FATA, has been given a separate Zone in the Province of Khyber Pakhtunkhwa. Similarly, the status of the employees of the centrally administered tribal area shall be the employee of the provincial Govt. on deputation to the Central Govt. as per President's Order No. 13 of 1972. The same, for facilitatio n of reference, is reproduced as under:- "Status of the employees of the Centrally Administered Tribal Areas.- Notwithstanding anything contained in their conditions of service, the employees shall, as from the appointed day, be the employees of the Provincial.
Government on deputation to the Central Government and shall work under the overall administrative control of the Provincial Government on the same terms and conditions of service as respects remuneration, leave and pension and the same rights as respects disciplinary matters or tenure of office as were applicable to them immediately before that day; Provided that the employees shall not be entitled to deputation allowance for their service after appointed day."
As per this Order, the provincial Govt. employees serving in FATA were declared as employees of Provincial Govt on deputation to the Federal Govt. without deputation allowance. Similarly, the Public Service Commission has been empowered to make appointments against these posts. The Govt. notification of zonal allocation for initial recruitment has a binding effect and all the appointments in the provincial cadre posts are to be made in accordance with the Govt. notification. Thus, the argument that the candidates from. FATA have no right to be appointed in the provincial cadre posts has no force and the same is repelled.
9. Regarding reduction of age of the candidates from 35 to 33 years, the Administrative Committee of this court in its meeting held on 10.8.2017 has decided to reduce the minimum age from 35 to 33 years and, accordingly , the advertisement to this effect was issued. Even, otherwise, the petitioner is not aggrieved of this reduction in the age limit because no objection whatsoever was made on his age. By reducing the age limit, more candidates applied and petitioner should not have averse from competition, if extra candidates have applied.
10. In the recruitment criteria, there is a provision of screening test, consisting of 100 marks. It further provides that only top 45 candidates in the screening test will be eligible to take written exam, consisting of four papers, each having 100 total marks. The qualifying marks were given as 40 % in each written paper and 50 % in aggregate of all papers.
11. The concern of petitioner that according to the Rules, ibid, only top 45 candidates were eligible to appear in the written test but the respondent has called 56 candidates for the same, which is in violation of the said Rules, also having no force because we for our satisf action inquired about the allegation of calling more than 45 candidates for written test and it transpired that at seria l No. 45, there were total eleven candida tes, having obtained 67 marks, therefore, all the candidates, having 67 marks, were declared eligible to take written examination and the respondents by doing so has not acted against the Rules as was contended by the petitioner .
12. So far as the question regarding provisions of five wakalatnama per year of the decided cases of the last five years is concerned, the said condition has been struck down by this Court at the eleventh hour when a Division Bench of this Court while deciding writ petition No. 870-A/2017, allowed all the candidates irrespective of non- provision of five wakalatnama per year of the decided cases of five years. When all, the candidates were allowed to appear in screening test relaxing this condition, then there is no need to discuss this matter anymore.
13. The questions discussed above also seem to be academic in nature, because the petitioner was not aggrieved of any of the condition mentioned in the recruitment criteria. He duly participated in the process, therefore, is not an aggrieved person in the eye of law .
14. So far as other allegations/contentions of the petitioner are concerned, the same pertains to factual controversy which cannot be resolved without recording pro and contra evidence, which is not the domain of this Court while sitting in writ jurisdiction under Article 199 of the Constitution.
15. For the aforesaid reasons, this petition having no merit is dismissed.