This writ petition called into question the vires of Explanation to Rule 7(a) of the Punjab Judicial Service Rules, 1994 (the Rules ).
2. The petitioners are law graduates who after obtaining their degrees were enrolled as advocates with the Punjab bar council and after practicing as advocates for a number of years joined PESSI.
3. The Government advertised for recruitment to the posts of civil judges/magistrates which the petitioners are desirous of applying. They are, however , aggrieved of Explanation to Rule 7 (the Explanation ) which is alleged to be ultra vires to Rule 7(a)(ii).
4. Rule 7 insofar as it is relevant is reproduced hereunder:
7. Qualification.--( 1) No person shall be appointed to a post in the service by initial recruitment unless:-
(a) in case of appointment to a post of Civil Judge-cum-Magistrate, he possesses a degree in law from a recognized University entitling him to practice the profession of Law or is a Member of the Faculty of Advocates of Scotland.
(i) he possesses a degree in Law from a recognized University entitling him to practice the profession of law or is a Member of the Faculty of Advocate of Scotland.
(ii) he has actively practiced the profession of law for not less than two years after having been enrolled as an Advocate and
(iii) he is domiciled in the Punjab.
Explanation :- For the purposes of this clause--
(i) The expression "practiced the profession of law" shall include any period of Government service by a person as- -
(a) District Attorney , A Deputy District Attorney or an Assistant District Attorney; Or (b) Full time prosecutor authorized to conduct prosecution on behalf of the Government; and
(ii) To prove active practice the candidate shall declare by an af fidavit that--
(a) He had been actively practicing the profession of law during the two years preceding the date of advertisement; and
(b) During this period he had not engaged himself in any other whole time service, business or, as the case may be, occupation for gain. (Emphasis supplied)
5. The precise argument of the petitioners is that the Explanation requires a candid ate to be in active practice for a period of two years immediately preceding the date of advertisement seeking recruitment, inter alia, to the post of civil judge cum Magistrate, which offends Rule 7(1)(a)(ii) which only mandates an applying candidate to have actively practiced the profession of law for not less than two years after having been enrolled as an advocate. The Explanation, it is argued, enlarges the scope of Rule 7(1)(a) (ii), which is not permissible on the reading of its plain text. In this regard, reliance is placed on the judgment reported as Commissioner of Income Tax Legal Divis ion v.
Khurshid. Ahmad and others 2016 PTD 1393 .
6. The relevant portion of the aforementioned judgment rendered by the Hon'ble Supreme Court on which reliance is placed by the petitioners reads as under: An explanation is appended to a section of an enactment to stipulate the meaning of a word, term, or phrase, and becomes part and parcel of the enactment. Its function is to clear the ambiguity and explain the meaning of the words used in the section to which it is appended. It is an intrinsic aid available to the reader to understand and appreciate the statute and particularly the section to which such explanation has been affixed . (Emphasis supplied)
7. The aforementioned excerpt from the judgment of the Hon'ble Supreme Court in fact militates against the stance of the petitioners and the basis on which challenge has been made to the Expla nation. The explanation merely facilitates the proper understanding and interpretation of Rule 7(1)(a)(ii) in order to avoid any confusion or misunderstanding in its application. Reading it as such does not make it larger than Rule 7(1)(a)(ii). The explanation is an essential constituent of Rule 7 and brings forth a practical 'aspect related to recruitment to the post of civil judge cum magistrate. The very nature of the job requires practical experience which a candidate must possess at the time of recruitment and not the experience acquired in distant past. The Explanation thus is integral to Rule 7 and is a useful tool to unders tanding the scope and intent thereof. The argument put forward by the petitioners is not tenable and is accordingly repelled.
8. In the circumstances, the petitioners have failed to make out any case for striking down the Explanation to Rule 7(a) of the Rules. This writ petition being devoid of any merit is accordingly dismissed .