Muhammad Iqbal Vs The Registrar

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

LAHORE

JUDICIAL DEPARTMENT

Diary No.No.40754 of 2022

Muhammad Iqbal. Versus. Registrar, Lahore High Court, Lahore. Sr. No. of order/ Date of order/ Order with signature of Judge, and that of Proceedings Proceeding Parties’ counsel, where necessary 25.03.2022 M/s. Safdar Shaheen Pirzada, Ch. Toseef Ahmad Bajwa, Nasir Mehmood Ch.,, Ali Shahzad and Muhammad Qasim, Advocates with petitioner. Mr. Zubda-tul-Hassan, Advocate for respondent along with Zafar Masood Mufti, Assistant Registrar (Legislation and Litigation) and Shehzad Qaiser, Senior Office Coordinator.

At the outset, learned counsel for the petitioner states that as legal question has been raised by the petitioner against office objection No.

40, which is related to maintainability of Writ Petition against establishment of Lahore High Court, therefore, this objection be treated on judicial side, to which learned counsel for the respondent has no objection. Hence, office is directed to number the petition and place the same for hearing on judicial side for today.

MAIN CASE/W.P.No. 18696/2022

2.The petitioner has filed this petition with the following prayer:-

“ Under the above submissions and circumstances of the case narrated above, it is humbly prayed that the instant petition may graciously be accepted and rejection letter dated 15.03.2022 passed by respondent, may kindly be declared as illegal, unlawful and without

jurisdiction and also be set aside, in the interest of justice and fair play.

It is further prayed that in the meanwhile, operation of the impugned rejection letter dated 15.03.2022 may kindly be suspended and petitioner be allowed to participate in the examination for the post of Additional District & Sessions Judge.”

3.The impugned order is given below:-

4.Office has raised objection to petition’s maintainability, which is being decided on judicial side.

5.Learned counsel for the petitioner while relying upon judgment reported as PLD 2008 SC 587 (Riaz Hanif Rahi and others versus Registrar, Lahore High Court, Lahore and others) states that in a similar matter constitutional petition filed by similarly placed persons was allowed by the Hon’ble Supreme Court of Pakistan after its dismissal from this Court and this Court under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, is bound by the said order, therefore, office objection against maintainability of the petition against the rejection letter communicated to the petitioner by the Registrar of the Lahore High Court dated 15.03.2022, whereby his candidature for appearing in the forthcoming examination for the post of Additional District and Sessions Judge has been rejected is maintainable and the said rejection letter merits to be set-aside, whereas learned counsel for the respondent Mr. Zubda-tul-Hassan, Advocate has objected to maintainability of this constitutional petition by placing reliance to judgment reported as PLD 2021 SC 391 (Gul Taiz Khan Marwat versus Registrar Peshawar High Court). The petitioner in order to substantiate his claim

of maintainability of Writ Petition for allowing the petitioner relief as claimed for in the petition has made the following assertions:-

“1. Precisely, petitioner enrolled as an advocate, Civil Courts on 13.04.2005 and thereafter enrolled as an advocate High Court on 18.04.2007. Pursuance to an advertisement petitioner applied for a job at PPSC under the captioned of Director Legal-cum-Law Officer, passed out the examination and after completing all the codal formalities joined his duty as Director Legal-cum-Law Officer on

2.Pursuant to an advertisement petitioner being eligible applied for the post of Additional District & Sessions judges (BS-20) but unfortunately petitioner has been declared ineligible by virtue of order dated 14.03.2022.

3.Grounds for seeking relief that have been raised through written submissions and additional submissions are as under:- a. That to apply for any post as eligible is one of the fundamental right of the petitioner which cannot be stampeded.

b. As a matter of fact, this is a sanction which has been imposed upon right of petitioner which is against the constitutional dogmas contained in Articles 8 to 25 of the Constitution of Islamic Republic of Pakistan, 1973. c. That, as a matter of fact, prohibition cannot be assumed until or unless it is specifically made, as laid down in landmark judgment i.e. 9 WR 402 see A 1941 C 670, 1969 SC 65 in which it has been laid down that:- (a). As observed by Mahmud J., “Courts are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general

principle, prohibition cannot be presumed.”

(b). No procedural impediment should be considered insurmountable unless it is laid down as an impediment”

d. It is also relevant to mention here that objection regarding filing of writ is also misconceived. As a matter of fact, latest law laid down by the August Supreme Court is reported through PLD 2021 SC 391 in which it has been held unequivocally that if an order is executive, administrative or consultative then the writ is not maintainable. With all humbleness it is submitted that this is differentiable with said judgment as this is neither judicial order nor executive nor consultative, this is merely rejection which does not fulfill the requirements of an order. Had there been an order, the things would have been different and mere rejection cannot be considered an order. e. It is relevant to mention here that it is being considered as a bar upon technicalities grounds and August Supreme Court has categorically stated in 1999 SC 382 that technicalities must not be allowed to come into way of dispensation of justice.

f. That in Rule 7(1) (b) (i) of the Punjab Judicial Service Rules, 1994 only qualification have been mentioned, whereas no disqualification have been mentioned and in present case disqualification has been assumed. g. That petitioner’s case is quite at par with the case of District Attorneys etc and the said issue has already been resolved by the August Supreme Court in landmark judgment reported as PLD 2008 SC 587 available at page 49 of writ petition and this is true fact and fortunately the facts of the judgments mentioned supra are quite identical with present facts. h. That petitioner’s fundamental rights have been jeopardized upon the basis of assumption of technicalities.

i. That even otherwise petitioner was enrolled as an advocated on 13.04.2005 and joined as Director Legal-cum-Law Officer on 12.03.2019. It is clear that prior to joining, petitioner fulfills the prerequisites i.e. 10 years practice as envisaged by said rule of this Hon’ble Court and this sole fact is suffice to prove that petitioner fulfill all the prerequisites and it is petitioner’s right to appear in exam of AD& SJ since no deficiency has been pointed out.

j. That, unfortunately it is case of interpretation of rules which has been done in an illegal and wrong way which needs to be ratified. k. That at the same time, petitioner has successfully proved the case of dire discrimination with those of District Attorneys. It is relevant to mention here that District Attorneys etc are at the same footing, they are employee of same department and job of nature of both is same. In this regard job description of petition as well as District Attorneys is available at page 36-37 of writ and if said job description is juxta pose, it would become clear that petitioner has successfully proved case of discrimination.

l. That Holy Prophet (PBUH) said that prior to Islamic, society was destroyed because they are observing different rules, one for the richest and other for poor, one for influential and other for hapless. In present case, it appears that petitioner is also victim of this attitude.

m. That rejection letter does not fulfill the requirement of order as envisaged by CPC as well as General Clauses Act, therefore, by way of rejection order petitioner’s established rights have been stampeded as it is established by law that writ is maintainable against consideration of promotion and employee because this right of employee to be considered for promotion but promotion itself is

not right. In same way, it is petitioner’ right to be considered for issuance of role number slip and to allow the petitioner to participate in competitive exam thereafter if petitioner does not qualify than petitioner would be shunted out and that judgments presented by department are differentiable. In all those judgments persons were employee of this court and they were under the administrative as well as executive control of this court but in present case petitioner is neither employee of this court nor under the administrative or executive control of this court, therefore, said sanction cannot be applied preemptively.

n. That according to Articles 189 and 203GG of constitution and 2010 SCMR 1475 it is clear that judgments of August Supreme Court is binding upon all courts including this court. It is also held unequivocally that if relief has been bestowed upon a person who is similarly placed person, same relief is liable to be bestowed upon the others i.e. petitioner.

o. That impugned order is non- speaking, without raison d’tre and no logic whatsoever has been mention in it d’etre , therefore, it is liable to be set aside.

p. That judicial mind has not been applied while passing the impugned order.”

6.Be that as it may, the preliminary question to be determined in this petition is whether this Court can exercise jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to call in question the impugned letter conveyed by the Registrar of this Court, whereby candidature of the petitioner has been rejected, which order was passed upon consideration by the Examination Committee for

Recruitment of Judges of District Judiciary and its Establishment constituted by the High Court for the purpose to conduct examination for appointment to the post of Additional District & Sessions Judge and for all intent and purposes is an order passed by the High Court in its administrative capacity. Consequently, it is held that this Court lacks jurisdiction to entertain this petition in view of Article 199 sub-Article (5) of the Constitution of Islamic Republic of Pakistan, 1973, whereby the High Court has been excluded from the definition of ‘person’ for the purposes of exercise of jurisdiction under Article 199 of this Court, which is further supported by the principles laid down in the judgment of the Hon’ble Supreme Court of Pakistan in the afore-referred case of Gul Taiz Khan Marwat declaring that High Court cannot exercise its jurisdiction against itself. The office objection is decided, accordingly.

7.For what has been discussed above, the instant constitutional petition is dismissed being not maintainable. In view of the afore-said, the remaining points raised by the petitioner are not being addressed as the same would be a futile exercise to determine the same as an academic question only.

(MUZAMIL AKHTAR SHABIR)

JUDGE

*Zeeshan Khan*