1999 PLP 13 (SCMR)

WAJIHUDDIN AHMED, J.

The petitioner has concurrently been ordered to be evicted by the learned Rent Controller and the High Court of Sindh, by the latter in the F.R.A. taken to it. The only question urged before the learned Judge of the High Court in Chambers was that the Controller, who decided the rent case, was not qualified to be appointed as such in terms of section 4(2) of the Sindh Rented Premises Ordinance, 1979, since he had neither served as a Civil Judge nor as a First Class Magistrate for a period of three years. Section 4(2) under reference reads:-- Section 4(2) of the Sindh Rented Premises Ordinance: "4(1) ....... (2) No person shall be appointed as a Controller unless he has worked or, has been working, as a Civil Judge or First Class Magistrate, for not less than three years. (3) ..... It has been recorded in the impugned order of the High Court that the learned Controller, much like many others, was inducted directly as a Senior Civil Judge and, therefore, qualified duly to function as a Controller. Leave is sought on this single question. The current applicable rules for regulating recruitment to the Judicial Service in Sindh and for prescribing conditions for persons appointed thereto were promulgated on 24-11-1994, pursuant to section 26 of the Sindh Civil Servants Act, 1973. Such are styled as the Sindh Judicial Service Rules, 1994. The method of recruitment in the service is visualised in Rule 5 of the said Rules and the relevant portion thereof is reproduced hereunder:-- "

5. Method of recruitment.--(1) Appointments to a post in the lower grade of the service, i.e. post of Civil Judges and Judicial Magistrate, shall be made by initial appointment on the recommendations of the Provincial Selection Board: Provided that appointment of Judicial Magistrate may be made by transfer from amongst the Executive Magistrates, who possess degree of law and have exercised powers of First Class Magistrate for not less than two years. (2) Appointment to a post in the upper grade of service, i.e. post of Senior Civil Judge, shall be made by promotion from amongst members of the lower grade of Service on the recommendations of the Provincial Selection Board: Provided that if no suitable member of lower grade of Service is available for promotion, the appointment shall be made by initial appointment. " Perusal of the foregoing would show that routine recruitments in the lower grade of service are required to be made by initial appointment and in that category fall the posts of Civil Judges and Judicial Magistrates. Inductions in the upper grade of service, pertaining to Senior Civil Judges and their appointments have essentially to be made. by promotion from amongst the members of the lower grade, though, in special circumstances, such appointments may also come about by initial recruitments. As argued, the learned Senior Civil Judge, who functioned as the Controller in relation to the order of eviction at the stage of trial, was not a promote from the post of a Civil Judge or a Judicial Magistrate but a direct appointee under the proviso attached to Rule 5 (2) ibid. He, therefore, according to the petitioner's objection, never served the qualifying period of three years as a Civil Judge for being notified and designated as a Controller in terms of section 4 (2) of the Sindh Rented Premises Ordinance, already adverted to. The objection, however, remains merely technical because the post of a Civil Judge is a B-17 post and the minimum length off service for the next higher promotion (B-18) is a period of five years, as visulaised in the Sindh Government notification bearing No.SOIX-Reg. (S&GAD)/II/11-81 dated 27-2-1984. Thus, had the incumbent been a promote to the post of a Senior Civil Judge, he would have, in all probability, served for the requisite period of three years as a Civil Judge or, alternatively, as a qualifying Judicial Magistrate before moving to the higher grade, as per the referred notification. It, therefore emerges that the Judicial Officer, having been a direct appointee, should be deemed not only to have satisfied the qualifying requirement for the post of a Senior Civil Judge, to which he was directly appointed, but also, arguably and quite plausibly, the minimum as a Civil Judge in terms of section 4 (2) of the Sindh Rented Premises Ordinance, 1979. It would thus seem that the objection is merely technical in nature and employing the beneficial rule of construction of statutes it appears reasonable to conclude that the notification under section 4(2), supra, satisfied the essence and substance of the requirement. Even otherwise, if the de facto doctrine, as recently reiterated in Mahmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426, was invoked, the order of eviction, passed by the Controller, having come about bona fide and in public interest, should be assumed to have been passed de jure and possessed all the attributes of a lawful, operative and binding order. Such attributes and outcome would remain unaffected even if the person/authority, ultimately, turns out to be devoid of legal sanction. The doctrine, which is based on higher considerations of public policy, is calculated to ensure continuity, to avoid dislocation and to prevent confusion in the conduct of public affairs, on the one hand, and the safeguard of public and private rights, emerging from de facto acts of officers, performing functions of the State in the ordinary course, on the other. In the result, such acts are not exposed to be questioned for want of legal authority in collateral proceedings, though direct challenge in the presence of all necessary parties, if otherwise satisfying the requirements of law, remains permissible. On this criterion also the incidental challenge to the competence of the learned Controller is not entertainable in the instant proceedings. As a result, this petition must fail and is, accordingly, dismissed.