' S.A. RABBANI, J.---In response to an advertisement published by the Registrar, Sindh High Court inviting applications for appointment of Civil Judges on regular basis, the petitioner applied for the job: The process of selection of the candidates was started and, according to the petitioner, the method of selection adopted by the Selection Committee consisted of three phases, as under:--
(1) First written test held on 14-3-1998'and 15-3-1998.
(2) Interview held from 21-4-1998 to 28-4-1998.
(3) Final written test held on 4-5-1998, 8-5-1998 and 13-5-1998.
2. The petitioner appeared in all the tests, including the third and final test. The petitioner alleged that the third and final test conducted for the purpose was not considered for the selection of the candidates and, on this ground, as well as question about eligibility of some of the candidates, he challenged the selection of the Civil Judges, through this petition.
3. The petitioner made a lengthy prayer in the petition but, in substance, he seeks a declaration that the selection of the candidates, present respondents Nos.6 to 40, is of no legal effect, as it was made without considering the result of the final test with a similar declaration regarding some of the candidates on the basis of their ineligibility.
4. Since the petition was filed before the appointment of the successful candidates was notified, it also included a prayer to restrain issuance of the notification. The petition was filed on 19-10-1998 and the notification relating to the appointment of the Civil Judges was issued on 27-10-1998.
5. Mr. Muhammad Nawaz Shaikh, learned counsel for the petitioner, referred to a letter, dated 30th April, 1998 issued by, the Registrar to the petitioner, calling upon him to appear before the Committee for final interview/test on 8-5-1998 at 11-00 a.m. He contended that the petitioner, in compliance with this direction, appeared in the test, but the result of this test was not considered for the purpose of selection. This fact could only be ascertained from the record of the office of the Registrar about the alleged final test. The record available there has been examined which reveals that a test was conducted on 5-5-1998 and 8-5-1998, answer papers whereof are available in the record. These answer papers have never been examined and assessed. Thus, the contention of Mr. Nawaz Shaikh that the result of the third test conducted on the said dates was not considered for their purpose of selection of the candidates is correct.
6. In the comments filed by the Registrar, respondent No,3, it is not denied that the said third test was conducted, or it is asserted that the result of this test was considered for the purpose of selection.
7. The learned Additional Advocate-General appearing on behalf of the official respondents, has no explanation was to why this test as ignored after it was conducted.
8. The record show that the test for selection was conducted by a committee constituted by the Administrative Committee for this purpose. Examination of legal status of this committee is also necessary in the circumstances. Respondents Nos.6 to 40 were appointed through a notification issued by the Law Department, Government of Sindh, reproduced below:-- "GOVERNMENT OF SINDH, LAW DEPARTMENT. NOTIFICATION Karachi, dated the 27th October, 1998.
' No,S.JUDL:7-3/98.---On the recommendation of the Chief Justice, High Court of Sindh and with the approval of the Competent Authority, the following Advocates are hereby appointed as Civil Judges (BPS-17) on regular basis with effect from the date they assume charge of the post on terms and conditions regulated by the Sindh Civil Servants Act, 1973 and the Rules framed thereunder:-
9. The notification is patently defective in law because it violates the rules framed for the purpose viz. The Sindh Judicial Service Rules, 1994. These Rules have been framed in exercise of power under section 26 of Sindh Civil Servants Act, 1973. Rule 5(1) of the said Rules provides that appointments to a post in the lower grade of the service i,e, post of Civil Judges and Judicial Magistrates, shall be made by initial appointment on the recommendations of the Provincial Selection Board. The Provincial Selection Board has been defined in rule 2(e) of the said Rules and it is as under:-- "Provincial Selection Board means the Administrative Committee of the High Court or a committee of not less than three High Court Judges specially constituted for the purposes of these Rules by the Full Court."
10. In the present case, as is mentioned in the notification itself, the appointments were not made on the recommendations of the Provincial Selection Board, as required by the Rules, but they were made on the recommendations of the Chief Justice, which is not in accordance with the Rules.
Moreover, the record of this case, in the office of the Registrar, shows that the Administrative Committee proposed names of three Judges as members of the Selection Committee for selection of Civil Judges. It also shows that some of the Judges of the Selection Committee were not members of Administration Committee. This Selection Committee conducted these tests and recommended the candidates for appointment as Civil Judges.
11. Obviously, the Selection Committee was in violation of rule 2(e) of the Sindh Judicial Service Rules, 1994. It was not a Provincial Selection Board within its meanings because that could only be the Administration Committee itself or a committee of three Judges appointed for the purpose by the Full Court. Neither it was the Administration Committee of the High Court, nor it was constituted by the Full Court. Thus, neither the respondents Nos.6 to 40 were recommended in accordance with rules 5(1) for appointment, nor have they been appointed on recommendation of the Provincial Selection Board.
12. In view of the above finding, it is not deemed necessary and advisable to give a definite finding regarding eligibility of the respondents challenged by the petitioner.
13. Alongwith the main petition, two applications, filed by two unsuccessful candidates, under Order I, Rule 10, C.P.C., and one application filed by advocate for the petitioner under Order XXXIX, Rules 1 and 2, C.P.C. Read with section 151, C.P.C. Were also heard.
14. The said unsuccessful candidates, through the applications filed by them, prayed for their joinder as petitioner. It was contended on their behalf that their joinder is necessary for effective determination of the questions involved in these proceedings. It was further contended that all the provisions of C.P.C., regulating procedure in civil proceedings, are applicable in Constitutional petitions. In support of this contention, mainly reliance was placed on the case of Hussain Baldish v.
Settlement Commissioner, Rawalpindi and others, reported in PLD 1970 SC 1.
15. On the question whether provisions of C.P.C. Are applicable in the proceedings in a Constitutional petition an affirmative assumption is basis of the prevalent practice founded on the old case-law, like that cited above. The question is how far this law holds the field after promulgation of the Constitution of 1973. Article 98 of the Constitution of 1962 and Article 199 of the Constitution of 1973 are similar provisions on the same subject, but with two material and significant distinctive features. First distinction is that the clause that a High Court shall have such jurisdiction as is conferred on it by this Constitution or by law, forming part of Article 98 of the Constitution of 1962, has been omitted from Article 199 of the Constitution of 1973. The second change is replacement of remedy relating to terms and conditions of service by a remedy relating to Fundamental Rights in Article 199 of Constitution of 1973. For the present purpose, omission of the provisions from Article 199 of the Constitution, 1973, that a High Court shall have such jurisdiction as is conferred on it by this Constitution or by law, is material. This existed in Article 98 of the Constitution of 1962 and therefore, the Civil Procedure Code, which is undisputedly a law, was applicable to the proceedings under that Article, as expressly provided.
16. Inclusion or exclusion of words or provisions in, or from, a piece of legislation or enactment is never inconsequential. The logical consequence of 0 the omission of the provision, for applicability of law, from Article 199 of the Constitution of 1973, is that jurisdiction conferred by a law shall not be applicable to the proceedings under this Article, and such proceedings are to be dealt with under the jurisdiction given by the said Article itself.
17. Through this Constitutional provision, the Constitution-makers had no intention to provide for a comprehensive proceedings and remedy parallel to civil suit, not through the concept of applicability of Civil Procedure Code, Constitution petitions under this Article have, practically, been made civil suits. Since the extent of applicability of C.P.C. To Constitution petitions has not been defined precisely, everything that can be done with the civil suits is being done with the Constitution petitions. Declarations about rights and entitlement are sought; permanent injunctions are prayed for; petitions are amended like pleadings in suits; legal heirs are joined; in a petition filed by a person, co-petitioners are joined and even the proceedings in such petitions are some time compromised and disposed of like a compromise decree. If all these provisions of C.P.C., meant for civil suits, have an applicability to Constitution, petition, there can be no reason why provisions of C.P.C. Relating to framing of issues and recording of evidence should not be applicable to such petitions.
18. In view of this discussion, a disturbing question would be natural. It is, how without such a procedure a Constitution petition can be dealt with. It can be understood by following how the Constitution itself envisages it. We call it a writ petition, as is the practice at Lahore High Court, or a Constitution petition, as we do here, but the Constitution itself terms it and an "application" of any aggrieved party or any person.
19. What was intended was that such an "application" would be decided and disposed of after hearing the applicant and the respondent called through a notice issued under the rules. There was no concept of interlocutory stages and application like civil suits or appeals. If an interim order was necessary that could be passed in exercise of the same Constitutional jurisdiction. The Article itself provides for a power to grant an interim order. The practice, however, is that interim stay is prayed for through an application under Order XXXIX, Rules 1 and 2, C.P.C., which neither is required, nor can be legally entertained in a Constitution petition, because such an interim stay is to be granted in exercise of Constitutional jurisdiction and not under Order XXXIX, C.P.C. This can be understood from the provision of clause (4-A) of Article 199 and rule 4-A of Order XXXIX, C.P.C. If an interim stay is ordered under Order XXXIX, rules 1 and 2, C.P.C., rule 4-A of the said Order shall apply, and not clause (4-A) of Article 199 of the Constitution. In case such interim orders were to be made in the Constitution petitions under Order XXXIX, Rules 1 and 2, C.P.C., there was no necessity to insert clause (4-A) in Article 199 as rule 4-A, Order XXXIX, C.P.C. Was there for the purpose. Existence of clause (4-A) in Article 199 establishes that interim stay in Constitution petitions are to be ordered under the same Article, and not under Order XXXIX, C.P:C.
20. Consequently, the applications under Order I, Rule 10, C.P.C. And G maintainable, and are dismissed as such.
21. Since the appointment of respondents Nos.6 to 40 was not in accordance with the Rules made for the purpose, on the recommendations of the Provincial Selection Board, and the selection being made by a committee having no legal authority for the purpose and ignoring the result of the test conducted by them, we are constrained to hold that the 'notification appointing respondents Nos.6 to 40 is in violation of Rules and is of no legal effect. However, these respondents, working as Civil Judges, shall be treated H as appointed ad hoc and they may continue in that capacity till a fresh selection made in accordance with Rules, for which purpose these respondents as well as those candidates who were called for the third test, shall be allowed to participate in the competition subject to their eligibility that will be properly scrutinized by the Provincial Selection Board. The petition is allowed accordingly.
'SABIHUDDIN AHMAD, J.---I respectfully agree with my learned brother to the extent of his finding as to the invalidity of the appointment of respondents Nos.6 to 40 as well as his conclusions. I may add that it would also be in the interest of the said respondents if the appointments are regularised according to rules to preclude a challenge at any time in the future, because unlawful holding of a public office has been held to be a continuing wrong by the honourable Supreme Court in AKM Fazeul Quadir Chaudhri v. Muhammad Abdul Haq (PLD 1963 SC 486) and can be called in question by any person at any time. With all deference, however, while appreciating my learned brother's concern over the tendency to use the Constitutional jurisdiction of this Court, rather indiscriminately, for resolution of disputes which could be appropriately resolved through ordinary civil suits. I have not been able to persuade myself to subscribe to the view that the provisions of C.P.C., particularly Order I, rule 10 thereof, cannot be made applicable to petitions/applications under Article 199 of the Constitution.
2. Indeed my learned brother has correctly pointed out that the case of Hussain Bakhsh v.
Settlement Commissioner (PLD 1970 SC 1) was decided when the 1962 Constitution was in force and that the words "a High Court shall have such jurisdiction as is conferred on it by this Constitution and the law" occurring in Article 98(1) thereof do not appear in Article 199 of the 1973 Constitution.
With profound respects, however, I am unable to share the view that such omission has the effect of rendering the law declared in Hussain Bakhsh's case inapplicable under the present Constitutional dispensation for a number of reasons.
3. The words quoted above constituted sub-Article (1) of Article 98 of the 1962 Constitution. The test of sub-Article (2) is substantially the same as Article 199(1) of the 1973 Constitution. Obviously sub- Article (1) did not confer any new jurisdiction upon the High Court while sub-Article (2) did so. The former merely affirmed or declared that the High Court will exercise jurisdiction conferred by other provisions of the Constitution or any other laws. Obviously as long as those provisions or laws remained operative, the omission of this sub-Article could not have the effect of divesting the High Court of its jurisdiction. It is equally difficult to say that sub-Article (1) related to the manner of exercise of jurisdiction conferred by sub-Article (2). In the first place the former speaks about jurisdiction and not the manner of its exercise or the procedure to be followed. Secondly the extraordinary remedies under sub-Article (2) could only be invoked only when an alternate remedy under the ordinary law was not available and by virtue of sub-Article (4) a direction in terms of sub-Article (2) could not be issued to the High Court itself. Therefore, when a sub-Constitutional law conferred a particular jurisdiction upon the High Court as mentioned in sub-Article (1), no question of invoking the jurisdiction under sub-Article (2) could conceivably arise. I am, therefore, of the opinion that there was no nexus or linkage between sub-Articles (1) and (2). The first merely affirmed the existing legal position and the second conferred a particular kind of jurisdiction.
4. I agree with my learned brother that inclusion or exclusion of certain words from an enactment are not generally treated as inconsequential. Nevertheless, with profound respects, I deem it necessary to point out that the instant case was not one where the Legislature or the Constitution- amending body consciously deleted certain words through a clear intendment. No amendment was brought about in the 1962 Constitution deleting clause (1) of Article 98. The Constitution was abrogated as a whole and thereafter a new body was set up to draft and approve a new Constitution. This body drafted a Constitution or a pattern quite different from its predecessor.
Apparently it did not feel the need to incorporate the words confined in Article 98 (1) of the former Constitution for the reason that, a High Court could always exercise such jurisdiction as was conferred upon it, either by the Constitution itself or by any other law, even if the Constitution did not expressly say so. I am, therefore, not persuaded to attach any significance to the absence of words occuring in Article 98(1) of the 1962 Constitution from the present Constitution.
5. A close examination of the unanimous Full Court judgment of the Honourable Supreme Court in Hussain Bakhsh's case I have not been able to infer that the ratio decidendi was premised upon the words contained in Article 98(1) of the 1962 Constitution. The question before the Court was whether in the absence of a specific provision in the Constitution enabling the High Court to review its judgment and orders passed under Article 98(2) review was possible on account of the application of the provisions of C.P.C. To such proceedings. Acknowledging that the High Court was not a Civil Court, the jurisdiction under Article 98 was a Constitutional jurisdiction and not the civil appellate or original civil jurisdiction envisaged by the Code, and that the power to review had to be conferred by substantive law, it was observed "the nature of proceedings does not necessarily depend on the nature of the jurisdiction of the Court involved. In order to determine whether proceeding is a civil proceeding it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or involvement of a civil right it is 'a civil proceeding." Proceeding further M.R. Khan, J., speaking for the Full Court observed:-- "Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction.
Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is Constitutional jurisdiction of an original kind. A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure (see its preamble). By virtue of section 117 of the Code, a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially expected. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review and order made by the High Court in its writ jurisdiction will be available to it under the said section 114 if that section is otherwise applicable. "
6. It may also be pertinent to note that in a far more recent judgment in the case of Shabbir Ahmad Khan v. Akhtar Alam (PLD 1994 SC 598) their Lordships after recording that there was no Constitutional provision similar to Article 188 enabling the High Court to review its judgment under Article 199 of the Constitution proceeded to acknowledge such jurisdiction on the principle that the provisions of C.P.C. Were applicable. With regard to the application of other provisions of the C.P.C., it might suffice to say that my learned brother has already observed that such provisions are being applied and I may only refer to a few judgments of the Honourable Supreme Court and some binding procedents. In Sardar Noor Hussain v. Chief Settlement Commissioner (PLD 1983 SC 62), it was held that the provisions of Order 22, Rule 4, C.P.C. Were applicable not merely to Constitutional petition but also to Latters Patent Appeals arising thereunder. In Islamic Republic of Pakistan v.
Abdul Wali Khan (PLD 1975 SC 463) their Lordships while hearing a reference under Article 17 of the Constitution did not dismiss an application under Order I, Rule 10, C.P.C., on the ground of non- maintainability but proceeded to do so only after recording a finding to the effect that the applicant was neither a necessary nor a proper party in accordance with the requirements of Order 1, Rule 10, C.P.C. In Federation of Pakistan v. Aftab Ahmad Khan Sherpao (PLD 1992 SC 723) at least six of the twelve members' Bench of the Honourable Supreme Court went to the extent of holding that non-compliance with the provisions of Order XXVII-A, Rule 1, C.P.C., rendered the judgment of the High Court a nullity. In taking the contrary view on behalf of the remaining six Honourable Judges, Ajmal Mian, J. (as his Lordship then was) observed that the provisions of Order XXVII could not control or obstruct the Constitutional jurisdiction of the High Court, but at the same time noted that the controversy as to general applicability of C.P.C. To writ petitions stood resolved in Hussain Bakhsh's case (see p. 783).
7. Considering the above weighty pronouncement I regret it is not possible for me to subscribe to the view that the provisions of C.P.C. Are altogether inapplicable to applications/petitions under Article 199 of the Constitution. Section 141 of the Code requires that the procedure provided in respect of suits shall be followed as far as it can be to all proceedings in a Court of civil jurisdiction.
In any event even if the C.P.C., does not apply the procedural provision which may foster the cause of justice, can always be made applicable in the absence of specific bar. It is not, therefore, possible to reject an application under Order I, Rule 10, C.P.C., on the ground of inapplicability of this provision.
8. I entirely agree with my learned brother that the Constitution-makers never intended to create remedies parallel to civil suits by providing for an extraordinary remedy under Article 199 of the Constitution. The basis of distinction in my humble view, however, is somewhat different. An essential precondition for invoking the jurisdiction under Article 199 is the absence of alternate remedy. Indeed if the same relief can be obtained through an ordinary civil suit a petition under Article 199 would not lie.
' Moreover, directions under this Article can only be issued to public functionaries. The expression "alternate remedy" has indeed been construed to the on a remedy which is efficacious in terms of time and expense. Therefore, if this Court starts adopting the same detailed procedure as is followed by Civil Courts under the C.P.C., no occasion to invoke its jurisdiction could possibly arise.
This, however, does not mean that the Court cannot adopt the procedural provisions in C.P.C.
Which foster the cause of justice. In any event, it is not necessary to pass any order on these applications in view of the relief we propose to grant.