LAHORE: As many as 43 Punjab civil judges have moved the Lahore High Court through a writ petition praying their judicial service may be considered as equal to the legal practice tenure of the lawyers.

“It is a paradoxical situation that they (civil judges) deal with and decide hundreds of cases and 10 years of their service qualifies them to become a judge of the High Court under Article 193(3) of the Constitution of Pakistan, but ironically, they are not considered eligible to sit the exam for additional district and sessions judge (AD&SJ)” the plea states.

Requesting anonymity, some of the petitioner judges told Dawn on Saturday that their selection as a judge was treated as a disqualification when it came to direct induction of AD&SJs. They were neither promoted even after 10 years of service nor given permission to vie for the AD&SJ examination, they deplored.

They said the LHC invited online applications from the candidates eligible for the AD&SJ posts. The civil judges who applied were granted departmental permission to take the examination. But to their utter surprise their right to sit the examination was withdrawn without giving them an opportunity of being heard. The judges were told that the Punjab Judicial Service Rules granting them eligibility now stood amended, they added.

They said the newly amended rules, depriving them of right to vie for the higher post, stood in contravention of the Articles 4, 8, 9, 25 and 27 of the Constitution. The beauty of laws and rules was that they were footed on equity, ensure equality, provide justice and a level playing field, create harmony, uniformity, certainty, universality and establish the rule of law hence command respect in the hearts and minds of the people. This very respect was the sanctioning force behind the laws and not the canons or arsenals or big armies, they said.

They said the impugned rules carried many question marks on their fairness. These had catapulted the civil judges in Punjab into a deep sense of disappointment, dejection and instilled in them the loss of dignity of the cadre. They felt totally alienated from the system, they added.

The judges lamented that they were the public face of the Judicature and handled about 90 per cent of public litigation and the distress, warning that disappointment was likely to cause further deterioration in the cadre, leading to the total collapse of the system. Therefore, there was a need to give them the sense of ownership of the department.

When the law officers, government pleaders and prosecutors were allowed to sit the examination, why should the civil judges be specifically disqualified for the post despite their eligibility and valuable experience, they asked, adding it was against the tenets of justice.

The writ reads that on June 11 and 12, 2010, National Judicial (policy making) Committee in its meeting deliberated regarding permission to civil judges to apply for the post of AD&SJ and concluded that the high courts might consider the most deserving civil judges who fulfill the criteria for applying for the post against direct quota.

“That the examination committee in its meeting held on January 13,.2012 approved that serving civil judges who have sought permission to appear in examination for the post of AD&SJ are allowed to appear in the examination for the post while counting their period of service towards practice in the light of judgment of the Supreme Court of Pakistan dated May 15, 2008 in CPLAs No. 401, 402 & 403 of 2008 titled Riaz Hanif Rahi vs Registrar Lahore High Court, Lahore, as well as Article 193(2)(c) of the Constitution, Islamabad Judicial Service Rules 2011 and Sindh Judicial Service Rules, 1994.

It is significant to state that the examination committee while granting approval to civil judges to appear in the examination for the AD&SJ post placed its reliance on these authorities.

In furtherance of the recommendations of the examination committee, the provincial judicial selection board, administration committee in its meeting on November 12, 2013 resolved to make amendments in the Rules of 1994, for giving permission to serving civil judges-cum-magistrates to appear in the examination from the bar quota with at least 10 years experience as judicial officer having no adverse PER (performance evaluation report) and subject to prior permission of the competent authority.

The present method of appointment of AD&SJ by initial recruitment under the impugned notification is nothing but a clear example of discrimination under Article 25 and 27 of the Constitution both in terms of the petitioners being civil servants under the provisions of the Punjab Civil Servants Act, 1974 (VIII of 1974) and qualified persons in terms of Article 193 of the Constitution as some other civil servants i.e. prosecutors, government pleaders and attorneys have been allowed to appear in the examination.

Under amendments in Rules of 2014, the applications were invited and date sheet for the examination was also issued but the examination was delayed and later on the Rules of 1994 were again amended by Punjab governor under Section 23 of the Punjab Judicial Service Rules, 1994 whereby the petitioners and other candidates were barred from appearing in the examination which infringed their fundamental rights under the Constitution.

It is by now a well settled principle of statutory interpretation that the insertion or deletion of any provision in the rules or the law, if merely procedural in nature would apply retrospectively but not if it affects substantial rights, which already stood accrued, the plea stated.

The petitioners prayed, pursuant to Articles 2-A, 3, 8, 9, 25 and 27 of the Constitution, any appointments, recruitment of AD&SJ whereby eligible judicial officers (the petitioners) are disallowed under impugned notification, provisions of Amended Rules of 1994 were in violation of the Constitution and the same be declared as ultra vires, void ab initio and of no legal effect.

They prayed that the judicial officers who had applied for the examination, under Amended Rules of 1994 in pursuance of Advertisement No.1/2014/RHC/C-1, might be allowed to appear in the exam.

Published in Dawn, June 14th, 2015

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