ANW AR ZAHEER JAMALI, HCJ.--- In these two petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, the grievance of the petitioners, who are all the Civil Judges/Senior Civil Judges with more than ten years service experien ce in the judiciary of punjab, emanates from the Notification dated 13.05.2015, whereby Rules 5(3) and 7(1)(b)&(c) of the Punjab Judicial Service Rules, 1994 (hereafter referred to as "Rules of 1994") were amended and consequently , they were excluded from the eligibility enteria to appear in the examination for the vacancies of Additional District and Sessions Judge against the 40% reserved quota thereby meant exclusively for the members of the Bar. For ready reference, the instant Notification is reproduced as under: "GOVERNMENT OF THE PUNJAB SERVICES & GENERAL ADMINISTRA TION DEPARTMENT (REGULA TIONS WING)
Dated Lahore, the 13th May , 2015 NOTIFICA TION No. SOR-III (S&GAD) 2-17/94(P). In exercise of the powers conferred under Section 23 of the Punjab Civil Servants Act, 1974 (VII of 1974), Governor of the Punjab is pleased to direct that in the Punjab Judicial Service Rules, 1994, the following further amendments shall be made: AMENDMENTS In the said Rules:
(1) in rule 5, for sub-rule (3), the following shall be substituted: "(3) Appointment to the post of Additional District and Sessions Judge shall be made to the extent of forty per cent of the available vacancies through initial recruitment from amongst members of the Bar . "; and
(2) in rule 7, in sub-rule (1):
(a) for clause (b), the following shall be substitute& "(b) In case of appointment to a post of Additional District and Sessions Judge, he in addition to the qualification mentioned in sub-clause (1) of clause (a), is:
(i) a practicing Advocate of High Court and the Courts subordinate to the High Court with minimum practice of ten years; and not less than thirty-five years and not more than forty-five years of age"; and
(b) for clause (c), the following shall be substituted:
(i) produces a certificate of character from the Principal Academic Officer of the academic institution last attended, and also certificate of character from two other respectable persons, oat being his relatives, who are well- acquainted with his relatives, who are well acquainted with his relatives, who are well-acquainted with his character and antecedents;
(ii) is declared to be medically fit by a Board of medical officers, appointed by the High Court, and
(iii) is domiciled in the Punjab."
DR. MUHAMMAD SALEH T AHIR Secretary (Regulations), S&GAD"
2. The relevant facts forming background of this litigation are that initially the Rules of 1994 notified vide S.R.O. No. 111-2-17/83(P), .dated 31.03.1994, provid ed 60% quota reserved for filling up the vacancies of Additional District and Sessions Judge through promotion amongst the serving Civil Judges/Senior Civil Judges on seniority-cum- fitness basis and the remaining 40% quota reserved for direct recruitment from the members of Bar as per their eligibility criteria specified under the Rules. However , vide Notification No. SOR-III(S&GAD)2-17/83(PI), dated 09.05.2014 an amendment was introduced in Rule 5(3) and 7(1)(b)&(c) (ibid) , which reads as under: "AMENDMENTS In the Punjab Judicial Service Rules, 1994:
1. in rule 5, for sub-rule (3), the following shall be substituted: '(3) Appointment to the post of Additional District & Sessions Judge shall be made to the extent of forty per cent of the available vacancies through initial recruitment from:
(a) Members of the bar with ten years standing as Advocate; or
(b) Senior Civil Judges and Civil Judges cum-Magistrate with ten years service experience.
2. In rule, in sub-rule (1):
(a) for clause (b), the following shall be substituted: "(b) in case of appointment to the post of Additional District & Sessions Judge, he, apart from possession the qualification prescribed I sub-clause (i) of clause (a) of this rule is also:
(i) a practicing Advocate of High Court and the Courts subordinate to the High Court with minimum practice of ten years and is not less than thirty-five years and not more than forty-five years of age; or
(ii) a Senior Civil Judge or Civil Judge-cum-Magistrate with ten years' service experience."
(b) for clause (c), the following shall be substituted.
"(c) A person shall not be appointed to the service through initial recruitment unless:
(i) for a practicing Advocate, he:
(a) produces a certificate of character from the principal academic officer of the academic institution last attended and also such certificates from two other respectable persons, not being his relatives, who are well acquainted with his character and antecedents; and
(b) is declared physically fit by a Board of Medical Officers appointed by the High Court; and
(c) is domiciled in the Punjab; and
(ii) for a Senior Civil Judge or a Civil Judge-cum- Magistrate, he:
(a) has no adverse performance Evaluation Report: and
(b) produces prior permission from the High Court"."
3. These amended rules remained in force uptill 13.05.2015 when the impugned Notification, as reproduced above, was issued and as a result the petitioner s, who are in a service as judicial officers in the Province of Punjab and were earlier qualified to participate against he 40% reserved quota for the members of Bar for the vacancies of Additional District and Sessions Judge, were excluded and relegated to their position prior to the Notification dated 09.05.2014.
4. In Constitution Petition No. 37 of 2015, grievance of the petitioners is that while the amendment in the Rules of 1994 introduced vide Notification dated 09.05.2014 was in force and vacancies were advertised on 23.10.2014 as per requirement of rules, some of them had also obtained requisite permission from the Lahore High Court for their eligibility to participate in such examination, but due to the impugned notification, that process was scrapped and the subsequent advertisement dated 22.05.2015 debarred them from participation in the selection process of Additional District and Sessions Judges on the strength of Notification dated 13.05.2015.
5. We have heard arguments of Mr. Naee m Bokhari, learned ASC for the petitioners in Constitution Petition No. 37 of 2015. After stating brief facts of the case with reference to the original text of the Rules of 1994; Notification dated 09.05.2014, and the impugned Notification dated 13.05.2015, he strongly contended that the Rules of 1994 were amended vide Notification dated 09.05.2014 in the larger interest of the institution of Judiciary as it had enabled the serving Civil Judges/Senior Civil Judges holding equivalent experience of ten years service to appear in the selection process for the posts of Additional District & Sessions Judges against the 40% quota earlier meant only for the members of the Bar. Earlier applications were invited through advertisement dated 23.10.2014 under the said scheme, but all of a sudden such process was sheived/scraped and after issuance of the impugned notification fresh advertisement was made on 22.05.2015, showing a different eligibility criteria in terms of, the impugned Notification, with the result that the petitioners were excluded from the process of selection without any fault on their part. He, however , did not dispute that prior to the Notification dated 09.05.2014, the scheme of initial appointments of Additional District & Sess ions Judges was the same which has been revived/restored through the impugned Notification. When the learned ASC for the Petitioners was confron ted with the numbers of Civil Judges/Senior Civil Judges including the petitioners, who were eligible to appear in the qualification test of Additional District & Sessions Judges in terms of earlier Notification dated 09.05.2014, he did not dispute that if their aggregate number is compared with the number of members of the Bar qualified under the reserved quota meant for them, then latter outnumbered the former . He also did not dispute that the petitioners have already 60% exclusive reserved quota to be filled through promotion against the total vacancies, of Additional District & Sessions Judge in addition to their purported claim of participation against the remaining 40% quota reserved for the members of the Bar, for which they were also allowed as per earlier Notification dated 09.05.2014. Although learned ASC made reference to Articles 2-A, 3, 9, 25 and 27 of the Constitution (supra ) to emphasize the plea of the petitioners for their entitlement to appear in the examination against the 40% quota reserved for the members of the Bar in the vacancies of Additiona l District & Sessions Judge, but he could not point out violation of any specific fundamental right of the petition ers, who already have edge over the members of the Bar, with 60% exclusive quota in the overall vacancies of Additional District & Sessions Judges in the Province of Punjab.
6. Dr. Babar Awan, learned Sr. ASC for the petitioners in Constitution Petition No. 40 of 2015 filed by 18 other Petitioners, adopted the arguments of learned ASC, Mr. Naeem Bokhari. He furthe r added that the total number of vacancies of Additional District & Session s Judge available in the Province of Punjab are 345, out of which earlier 86 vacancies were filled through direct induction, and in the recent process of selection of Additional District & Sessions Judges, 82 more members of the Bar have been selected, which makes the total representation of the Bar as directly recruited Additional District & Sessions Judges to 40.1% while 256 other vacancies which are equivalent to 59.9% have been already filled up through the process of promotion of Civil Judges/Senior Civil Judges. He further made reference to the meeting of the National Judicial Policy Making Committee held in the year 2010 which, according to him, formed basis for such amendment in the Rules of 1994 vide Notification dated 09.05.2014, but in this regard he could show any statutory provision giving it a binding effect. Although in his arguments learned ASC also made reference to Articles 2-A, 3, 9, 25 and 27 of the Constitution (ibid) but again he could not substantiate his submissions in this regard on the basis of any material brought on record.
7. Conversely , learned Advocate General Punjab made reference to Section 23 of the Punjab Civil Servants Act, 1974, which provide the powers for framing of the Rules of 1994, and contended that such powers have been lawfully exercised by the competent authority , therefore, none of the petitioners have any locus standi to dispute amendment in the Rules, which as a matter of fact has brought no change in the original Rules of 1994, but restored it through the impugned Notification.
8. Learned Deputy Attorney General for Pakistan also strongly opposed these Constitution Petitions on the ground that no vested right of any nature whatsoever has been accrued in favour of the petitioners on any principle of law as there has been no violation of any fundamental right of the petitioners under the Constitution (supra).
More-so, when Article 25 of the Constitution (ibid) itself contain the provision for reasonable classification. To fortify his submissions, he further made reference to the cases: Muhammad Shabbir Ahmed Nasir vs. Secretary Finance Division, Islamabad and another (1997 SCMR 1026 ), Sh. Muhammad Sadiq vs. Federal Public Service Commission and others (2013 SCMR 264), Dr. Muhammad Hussain vs. Principal, Ayub Medical College and another (PLD 2003 SC 143), Mumtaz Ali Bohio and 24 others vs. Federal Public Service Commission through Chairman at Islamabad and another (2002 SCMR 772), Government of NWFP , Health and Social Welfare Department through its Secretary vs. Dr. Sheikh Muzaf far Iqbal and others (1990 SCMR 1321 ), Jahangir Sarwar and others vs. Lahore High Court and another (2011 SCMR 363), Secretary Economic Affairs Division, Islamabad and others vs. Anwarul Haq' Ahmed and others (2013 SCMR 1687 ), Muzaf far Khan and others vs. Governm ent of Pakistan and others (2013 SCMR 304). A review of these cases show that in the case of Mumtaz Ali Bohio (supra ), the Petitioner appeared and failed in the CSS examination held in 2000 when the upper age limit for taking the exam was 30 years pursuant to CSS Competitive Examination Rules, 2000 ("the Rules of 2000"). Subsequently , the upper age limit was changed to 28 years. The Petitioners claimed that the age limit of 30 years provided under the Rules of 2000 would be applicable to them and they were entitled to appear in the examination going to be held in 2001. The Court rejected their claim on the ground that nobody has any vested right to be govern ed by a particular set of rules. Similarly in the case of Muhammad Sadiq (supra ), the Federal Public Service Commiss ion changed the assessment formula after submission of the application forms. The case of the Appellant was that he should be governed by the previous assessment formula.
But the Court held that the Appellant had no vested right to claim that previous formula should be followed instead of the new one and dismissed the appeal.
In the case of Jahangir Sarwar (supra ), Section 7(1)(a)(b) of the Punjab Judicial Service Rules, 1994 required candidates to practice law for two years so as to compete for the post of Civil Judge/Judicial Magistrate, whereas, no such provision was contained in the Sindh Judicial Service Rules, 1994. The Petitioners argued that both Provinces have prescribed different eligibility criteria for similar posts in violation of Article 25 of the Constitution.
However , the Court observed that the Provinces had enacted their respective rules under two different statutes.
Moreover , the rules made in one Province would not be applicable to the other Province unless so adopted.
Therefore, it was held that Article 25 of the Constitution had not been violated because it permitted reasonable classification. A similar view was taken in the case of Muzaf far Khan (supra), whereby it was held that each Province is empowered to make rules on subjects that fall within its legislative domain. If the rules are not followed by the other Province then it cannot be cited as a ground for discrimination. in the case of Anwarul Haq (supra ), this Court observed that the classification between students who qualified on merit and students who failed to qualify on merit and opted to get admission on the basis of Self-Finance Scheme was based on intelligible differentia and thus, reasonable. Likewise the Court observed in the case of Muhammad Shabbir (supra ), that the classification of employees by the Govern ment in two categories, i.e. employees serving in BPS 1-16 and BPS 17- 22, for the purpose of granting greater monetary benefits to the former category cannot be termed as unreasonable and arbitrary . Lastly , in the cases of Muhammad Hussain (supra) and Sheikh Muzaf far Iqbal (supra ), this Court has held that no one has a vested right in promotion or in terms and conditions for promotion to a higher post.
9. We have carefully considered the submissions of the learned ASCs, Advocate General Punjab, Additional Attorney General for Pakistan and other law officers, perused the material placed on record and also scanned the case-law cited at the bar .
10. Insofar as the relevant facts of the case are concerned, the same are un-disputed. Based on such premise the question for consideration before us is two-fold. Firstly , whether the impugned notification dated 13.05.2015 has any legal infirmity on the basis whereof it can be struck down or it is in any manner violative of any fundamental right of the Petitioners guaranteed_ under the Constitution? Secondly , whether mere advertisement in newspaper to invite applications for the vacancies of Additional District & Sessions Judges ' on the basis of amended notification dated 09.05.2014, and issuance of requisite departmental permission to some of the Petitioners by the Lahore High Court to apply for the said vacancies has created any .vested right in their favour enforceable through any judicial proceedings. Our answer to both these questions is in the NEGA TIVE.
11. The bare reading of the original text of the Rules of 1994 dated 31.3.1994 show s the scheme of Policy Makers for the equitable distribution of such vacancies amongst the serving Senior Civil Judges as well as Civil Judges- cum-Magistrates in the Province of Punjab and the, members of the Bar on basis of seniority-cum-fitness and direct recruitment respectively in the ratio already discussed above i.e. 60 percent and 40 precent. These rules before any amendment remained effectively in force for a period of more than 20 years to cater to the need of District Judiciary for the purpose of appointme nt of Additional District & Sessions Judges. However , the competent authority amended the rules vide notifica tion dated 09.05.2014 it in a manner that the 60 present reserved quota meant for promotion of serving Civil and Senior Civil Judges to the post of Additional District and Sessions Judges, on the criteria of seniority-cum-fitness remained intact, but the remaining 40 precent quota reserved for direct recruitment from the members of the Bar was disturbed by allowing the serving Senior Civil Judges and Civil Judges- cum-Magistrates to also apply for the post of Additional District & Sessions Judges through the process of direct recruitment, thereby encroaching upon the exclusive 40 precent shape of members of the Bar in the process of filling up the vacancies of Additional District & Sessions Judges. Without commenting upon such amendment, we may say that probably the policy so laid down by the competent authority for appointment of Additional District & Sessions Judges prima facie did not work effectively; failed to achie ve the desired results and consequently through impugned notification dated 13.5.2015 the rules were again amended in order to dilute the effect of earlier notification dated 09.05.2014. Resultantly , the original position as provided under under the Rules of 1994 was restored. None of the learned ASCs for the Petitioners has questioned the jurisdiction or competence of the authority which had issued the notificatio n dated 13.05.2015, and rightly so as this notification was issued by the competent authority under the same statutory power , which had issued the earlie r notification dated 09.05.2014, therefore, any challenge to the jurisdiction or competence of the authority to issue such notification would have entirely displaced the claim of the Petitioners based on the notification dated 09.05.2014. In order to examine in detail some relevant factual aspects of the case, we have also called for the relevant data from the Lahore High Court, Lahore, to ascertain the number of Senior Civil Judges/Civil Judges- cum-Magistrates, who could have been qualified to appear in the examination of vacancies for the post of Additional District & Sessions Judges in Punjab as per earlier Advertisement in terms of Notification dated 09.05.2014, and registered members of Punjab Bar Council, who were qualified to apply for these vacancies. The reports received reveal that for these vacancies, the number of qualified Senior Civil Judges and Civil Judges-cum-Magistrates, was 242 while, the number of qualified members of the Bar was 21,907. As against it, on 08.06.2015, 259 vacancies of Additional District and Session Judges have been filled up from the services against 60% quota and 86+82 newly appointed Members from the Bar have been filled up against the 40% reserved quota and the remaining 104 seats from the service and 79 from the members of the Bar are vacant. For ease of reference, such report is reproduced as under: "SANCTIONED/WORKING STRENGTH/V ACANCY POSITION OF ADDITIONAL DISTRICT & SESSIONS JUDGES AS ON 8.06.2015 Sanctioned strengthWorking strength. Vacant posts 606 341 (field) + 04 (ex-cadre) = 345 606-341 26.5 Service Bar 259 86 Breakup of vacancy position on 8.06.2015 Service = 104 Bar = 161 Total number of Sr. Civil Judges having 10 years' service eligible .to compete for recruitment of AD&SJ as per amendment dated 09.05.2014 in the Punjab Judicial Service Rules, 1994=242"
12. Above facts are sufficient to completely wipe out the plea advanced on behalf of the Petitioners as regards discrimination or violation of any fundamental right due to the impugned notification or its consequent advertisement. The other important feature of the case which cannot be lost sight of is the fact that if any Senior Civil Judge and Civil Judge-cum-Magistrate is confident enough about his, skills and qualification to hold the post of Additional District & Sessions Judge, but not willing to wait for his turn of promotion against the reserved quota of 60 percent meant for him on the principle of seniority-cum-fitness, then there is no hurdle in his way to avail the chance of direct appointment as Additiona l District & Sessions Judge against the 40 percent quota for the members of the Bar, by tendering his resignation from the judicial post and getting himself again enrolled with the concerned Bar Council. All these facts go a long way to show that in fact the impugned notification is based on reasonable and rational classification and in no manner it is violative of any fundamental right or any other statutory provision.
13. Reverting to the other point, we may observe that mere advertisement for inviting applications under the criteria of earlier notification dated 09.05.2 014, or the permission obtained by some of the Senior Civil Judges from the Lahore High Court as per such criteria has not conferred any vested right in their favour , which could be enforced through these petitions: Had it been the position that whole process by virtue of advertisement under the notification dated 09.05.2014 completed and some of the Petitioners selected and notified, then that could be a situation for the Petitioners to agitate their claim of vested right on some legal doctrine. The discussion made above is fully fortified from the cases cited at the bar , as discussed above.
14. Foregoing are the reasons for our short order dated 08.10.2015, whereby these petitioners were dismissed and leave was refused.
15. C.P. No. 2197 of 2015, involving similar controversy and question of law, is also dismissed for the above recorded reasons.