C.P. No.D-3511 of 2011
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Sadiq Hussain Bhatti
Date of hearing : 20.11.2012
Date of order : 27.11.2012
Petitioner : Nazir Oad present in person
Respondent : The Registrar, High Court & another
through Mr. Saifullah,AAG.
O R D E R
Aqeel Ahmed Abbasi, J Through instant petition, the petitioner has sought following relief (s):
(a) To allow the petition by directing the respondents to consider additional three years relaxation of age in favour of the petitioner from over and above the age of thirty three years.
(b) To direct the respondent No.1 to consider the application of the petitioner for the appointment of Civil Judge & Judicial Magistrate on the basis of additional relaxation of age of three years over and above three years being Schedule Casts citizen of Pakistan.
(c) Any other relief which this Hon’ble Court deems fit and proper in favour of the petitioner in the interest of justice.
2. Brief facts as stated by the petitioner are that petitioner being member of Scheduled Caste, was born on 05.02.1978. He was enrolled as an Advocate on 17.06.2008 in the Lower Courts, whereafter on 12.09.2010, he was enrolled as an Advocate of the High Court, and since then he is continuously practicing law. The High Court of Sindh through its advertisement No.Gaz/VI.A.37(A)(3) dated 4th October 2011, invited the applications for the post of Civil Judges and Judicial Magistrates in which upper age limit was mentioned as 30 years, whereas 3 years relaxation was allowed in the case of a Barrister or an Advocate of High Court and the Courts sub-ordinate thereto. The petitioner also applied for such post, however, on the last date, fixed for receipt of applications i.e. 15.11.2011, the age of petitioner was 33 years 09 months and 10 days, hence he was overage by nine months and 10 days. Instant petition has been filed seeking additional relaxation in upper age limit.
3. The petitioner present in person states that he belongs to Scheduled Caste, and has referred to the Certificate dated 03.07.2001 issued by District Magistrate, Naushahero Feroze to this effect, which has been annexed alongwith the petition as Annexure P/4. It has been contended that since he is a member of Scheduled Caste, therefore, he is entitled to further relaxation in upper age for additional three years in terms of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993, which reads as follows:
S.No. Category of candidates Age relaxation admissible
1. 2 3
(i) (a) Candidates belonging to Scheduled 3 years
Castes, Budhist Community, Recog-
nised tribes of the Tribal Areas, Azad
Kashmir and Northern Areas, for all
Posts under the Federal Government.
4. It has been contended by the petitioner that though, the above mentioned relaxation has been granted to the candidates belonging to Scheduled Castes for all Posts under the Federal Government, however, the said rules are equally applicable to the Province of Sindh and the benefit of above relaxation may also be extended to the petitioner. The petitioner has also referred to Section 25 of Sindh Civil Servant Act, 1973, which according to the petitioner, provides for removal of difficulties and since, relaxation as provided by Federal Government to the Scheduled Castes, has not been provided by the Sindh Government, therefore, this Court may exercise its discretion available under Article 199 of the Constitution and extend the said benefit to the petitioner. The petitioner has also referred to Rule 13 of Sindh Judicial Service Rules, 1994 and submits that this Court while exercising constitutional jurisdiction has the authority to relax any of the rules, keeping in view undue hardship caused to an individual concerned. It has been further contended by the petitioner that during the pendency of this petition, this Court vide order dated 04.08.2012 allowed the petitioner to sit in the first test held on 05.08.2012 and vide another order dated 19.10.2012 again allowed the petitioner to sit in the second test held on 20th October, 2012, however, with the direction that his result shall be withheld pending outcome of this petition. It has been contended that instant petition may be allowed and the respondent may be directed to announce the result of the petitioner and further to allow him to participate in the interviews. In support of his contention, the petitioner has placed on record copies of orders passed in his case by a Division Bench of this Court in C.P.No.D-3095/2012 on 31.08.2012 and the order of Hon’ble Supreme Court dated 01.11.2012 in C.P.No.283-K/2012 and has submitted that in both the above referred orders, relaxation in age on the identical ground has been recognized. In this regard, the petitioner has relied upon the observations of the Hon’ble Supreme Court in C.P.No.283-K/2012, which read as follows”
“Learned High Court has rightly come to the conclusion that there is possibility for the relaxation of age but requirement of particular required experience cannot be relaxed.”
5. Conversely, Mr. Saifullah, the learned AAG has vehemently opposed the maintainability of the instant petition and has referred to the counter affidavit/comments filed by respondent No.1 i.e. Registrar, High Court of Sindh. It has been contended by the learned AAG that the petitioner has not approached this Court with clean hands, whereas he has concealed the fact that previously also the petitioner had applied for the Post of Civil Judge and Judicial Magistrate on 25.6.2008 and since he was overage, he moved an application dated 04.08.2008 before the Chairman, Selection Committee of Sindh High Court, seeking relaxation of age in the upper age limit. Per learned AAG, his request for seeking relaxation of age on the similar grounds, was dismissed by the Chairman, Selection Committee i.e. the Hon’ble Chief Justice of this Court. Learned AAG has submitted that admittedly, the petitioner at the time of filing the application for the above mentioned posts was overage by 09 months and 10 days, however, he has chosen not to file any such application before the Chairman, Selection Committee i.e. the Hon’ble Chief Justice, Sindh High Court, and has directly approached this Court seeking the above mentioned relief, which otherwise is not permissible in law. It has been stated by the learned AAG, that neither Service Rules relating to Federal Government nor the Service Rules relating to Sindh Government are applicable in the instant matter. Whereas, per learned AAG, Sindh Judicial Service Rules, 1994 are relevant for the purposes of appointments for the post of Civil Judges and Judicial Magistrates, which rules do not provide for any such relaxation to any person who claims to be a member of Scheduled Caste.
6. We have heard the petitioner, learned AAG and have also perused the record and the relevant rules. It is an admitted fact that at the time, when the petitioner applied for the post of Civil Judge and Judicial Magistrate, he was overage by 09 months and 10 days even after relaxation in age in terms of eligibility clause (iii) (b) of the advertisement, which reads as follows:-
“(b) In the case of a Barrister or an, Advocate of the High Court and the Courts sub-ordinate thereto, or a pleader, the period during which he practiced at the bar, subject to a maximum period of three years, shall, for the purpose of upper age limit under this rule, be excluded from his age.”
7. From perusal of hereinabove clause, it is seen that it provides for a maximum period of three years of age relaxation from upper age limit of 30 years, to a Barrister, an advocate of High Court and the Courts subordinate thereto or a pleader. It has also come on record that the petitioner on 4.8.2008, under similar circumstances and on identical grounds has earlier sought relaxation of upper age limit from the Chairman, Provincial Selection Board i.e. Hon’ble Chief Justice, Sindh High Court, which request was ordered to be filed. However, while applying for the current posts of Civil Judge and Judicial Magistrate advertised on 4th October, 2011, the petitioner did not approach the competent authority for seeking any further relaxation in upper age limit, which otherwise has not been provided either in the advertisement nor the same appears to have been provided under the Sindh Judicial Services Rules, 1994 applicable in the case of judicial appointments to sub-ordinate Courts. However, rule 13 of Sindh Judicial Service Rules, 1994 provides for relaxation of any of the rules of Sindh Judicial Service Rules, 1994. It will be advantageous to reproduce Rule 13 of the Sindh Judicial Service Rules, 1994, which reads as follows:
“13. Relaxation:- Any of these rules may, for reasons to be recorded in writing, be relaxed in individual case, if Government, on the recommendation of the High Court, is satisfied that a strict application of the rules would cause undue hardship to the individual concerned.”
8. From perusal of above mentioned rule, it is seen that in case of undue hardship to an individual and on the recommendation of the High Court, if Government is satisfied that a strict application of any of the rules (i.e. Sindh Judicial Service Rules, 1994) would cause undue hardship to an individual, then it may, after recording reasons in writing, may relax any of the rules of Sindh Judicial Rules, 1994, including the rule relating to fixation of age limit for any judicial post. It is noted that the petitioner has not made any representation to the Selection Committee of the High Court of Sindh for seeking further relaxation of age in terms of Rule 13 of Sindh Judicial Service Rules, 1994. The petitioner has bye-passed such forum without any excuse and has instead, opted to directly approach this Court under Article 199 of the Constitution, however, he could not point out any legitimate right guaranteed by the constitution, which has been violated by the respondents, nor he could establish any discrimination or malafide which could possibly require any interference by this Court in its constitutional jurisdiction under Article 199 of the Constitution.
9. We may observe that in the absence of any applicable rule, regulation or any order by the competent authority, allowing relaxation in the upper age limit to a member of scheduled castes, such claim of the petitioner appears to be misconceived. By invoking constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973, an aggrieved person can seek enforcement of his legitimate right which is either guaranteed under the Constitution or has been provided under any statute, rules or regulation, which has been denied to him erroneously. Petitioner has not been able to show, as to how, after formulation of the Sindh Judicial Service Rules, 1994 by the Government of Sindh under Section 26 of the Sindh Civil Servants Act, 1973, any instructions issued by the Federal Government, allowing relaxation in upper age limit in the case of Schedule Castes for appointments on the civil posts in Federal Government, can be applied in the case of petitioner whose appointment in judicial service of Sindh is governed by independent rules i.e. Sindh Judicial Service Rules, 1994.
10. Accordingly, we do not find any merits in the instant petition, which is hereby dismissed, however, with no order as to costs.
11. Before parting with this order, keeping in view the observations of the Hon’ble Supreme Court as mentioned in para 4 hereinabove, we may observe that, during pendency of the instant petition, the petitioner was allowed to participate in the two written tests, however, subject to outcome of this petition. Interviews of the successful candidates and the selection process has not so far been concluded, therefore, the petitioner is at liberty to approach the competent authority i.e. Chairman, Provincial Selection Board/Committee, Sindh High Court, for seeking relaxation of age in accordance with relevant rules, provided he has passed both the written tests in this regard, and approaches the competent authority well before the cut of date of interviews, whereafter, fate of the petitioner’s eligibility or otherwise may be determined by the competent authority in accordance with relevant rules.