2013 PLP (C (PLC(CS))

AQEEL AHMED ABBASI, J.

Through instant petition, the petitioner has sought following relief:

(i) Declare that the petitioner has been discriminated by no action/inaction by the respondent No.4, as a result of which, he could not participate in the Written Test held on 5th August, 2012 for recruitment of Civil Judges/Judicial Magistrates in which the petitioner was entitled to participate as allowed by the Hon'ble High Court of Sindh vide judgment dated 23-2-2011 reported in PLD 2011 Kar. 212. (ii) Declare that the petitioner is entitled to appear and contest in the next. Written Test for recruitment of Civil Judges/Judicial Magistrates, which is scheduled to be held on 20th October, 2012. (iii) Declare that the petitioner is entitled for protection of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 and the Order dated 23-2-2011 passed by the Division Bench of this Hon'ble Court in the Constitutional Petitions Nos.D-39 and D-41 both of 2011, which protection could not be availed by the petitioner due to circumstances submitted in the facts and grounds above. (iv) Allow the petitioner to participate/sit in the next Written Test for the post of Civil Judges/Judicial Magistrates scheduled to be held on 20th October, 2012 and Interview subject to the result of the Written Test till final disposal of the instant petition on merits.

2. Learned counsel for the petitioner has contended that the petitioner is entitled to participate and compete in the Test for the post of Civil Judge cum Judicial Magistrate under the law, which opportunity is lost to him for no fault on his part. Per learned counsel, many of the candidates, who were ranked as overage by the respondent No.4, and were aggrieved of the method of test conducted by respondent No.5, were allowed to sit in the Written Test conducted on 5-8-2012 in terms of this Hon'ble Court's judgment reported in PLD 2011 Kar.

212. Learned counsel has further submitted that the petitioner was neither informed nor allowed to participate in the test, though the petitioner had earlier submitted applications to the respondent No.4 and continued to pursue the same, but to no avail. Per learned counsel, the petitioner is not eligible to appear in the next test for recruitment of Civil Judges/Judicial Magistrates, because he has attained the age of about 36 years and 4 months on 15-11-2011. It has been stated by the learned counsel that the petitioner's case is based on three grounds, firstly, the protection of the judgment passed by this Hon'ble Court as referred to hereinabove, secondly, discrimination under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 and thirdly, an opportunity to seek job of his choice under Article 18 of the Constitution. Per learned counsel, under Article 25, nobody is allowed to discriminate between the citizens and to exercise discretion at their whims, sweet will, rather they are bound to act fairly, evenly and justly, hence, the petitioner cannot be treated arbitrarily. Learned counsel for the petitioner has argued that since the second written test is scheduled to be held tomorrow i.e. 20-10-2012, therefore, as an interim measure, the petitioner may be allowed to sit in the second written test. In support of her contention, learned counsel has placed reliance in the case of Darakhshan Jahan and others v. Province of Sindh and others SBLR 2011 Sindh 666.

3. Mr. Saifullah, the learned Assistant Advocate-General, Sindh on the other hand, has opposed the maintainability of instant petition and has submitted that the relief sought through instant petition by the learned counsel for the petitioner i.e. as an interim measure, the petitioner may be allowed to sit in the second written test, cannot be allowed as the petitioner did not appear in the first written test held on 5-8-2012, whereas, per learned A.A.-G., only such candidates were eligible to participate in the second written test who would have secured 50% marks in the first written test. It has been further stated that the petitioner was over age at the time of filing application for the advertised post and his request seeking condonation/relaxation in age limit was already turned down by the competent authority. Therefore, per learned A.A.-G., the petitioner cannot be allowed to participate in the second written test. In support of his contention, reliance has been placed in the case of Chairman, Board of Intermediate and Secondary Education v. Ali Mir (1984 SCMR 433).

4. Similarly, the learned Additional M.I.T.-I has filed a statement where in it has been stated that the petitioner had applied for the post of Civil Judge and Judicial Magistrate in the year 2010 and appeared in the first MCQs test held on 29-12-2010 by National Testing Service (NTS) and obtained 49 marks. Since he failed to secure minimum 50% required marks, therefore, he was not called for subsequent second written subjective test. It is further submitted that some of the candidates who failed in the first MCQs test previously held in the year 2010 had filed C.Ps. Nos.D-39 of 2011 and D-41 of 2011 in this Hon'ble Court, which was disposed off by the Court with the directions to issue fresh admit card to the petitioners and all other candidates who failed in the preliminary test dated 29-12-2010 and to provide them a fair opportunity to appear and attend the next preliminary test without charging admission fee and against the same application forms submitted by them for the test in question. It has been stated that against the said order, Provincial Selection Board, High Court of Sindh filed Civil Petition for leave to appeal bearing CPLAs Nos.254-K and 255-K of 2011 which was granted by the Hon'ble Supreme Court vide order dated 12-8-2011 whereby the operation of the above impugned order was also suspended. During suspension of operation of the above impugned judgment, fresh advertisement was made for the post of Civil Judge and Judicial Magistrate by this court in the year 2012 and the petitioner again applied for the said post and as per order of the Hon'ble Chief Justice dated 11-1-2012 and in the light of decisions/orders of the Administration Committee, all the 282 overage candidates, including the petitioner above named were treated as ineligible, and the applications submitted by all such candidates for relaxation of upper age limit were treated as filed. Therefore, as per comments filed by the Additional M.I.T-1, the petitioner was also ineligible for the post of Civil Judge/Judicial Magistrate etc, and was accordingly not called for the first MCQs test held on 5-8-2012 by NTS.

5. We have heard the learned counsel for the petitioner, A.A.-G. and the Additional M.I.T-I and have also perused the record. From perusal of the pleadings and the arguments advanced by the learned counsel for the petitioner, it appears that. the relief sought through instant petition is predominantly based upon the decision of a Division Bench of this Court in the reported judgment of Darakhshan Jahan and others v. Province of Sindh and others SBLR 2011 Sindh 666 with particular reference to paras 29 and 30 of the said judgment, which were readout by the counsel for the petitioner. However, it is pertinent to note that the above judgment was assailed by the Provincial Selection Board, High Court of Sindh before the Hon'ble Supreme Court of Pakistan in Civil Petitions Nos.254-K and 255-K of 2011, wherein vide order dated 12-8-2011 leave was granted and the operation of the impugned judgment was suspended. It has been brought to the notice of this Court by the respondents that the operation of the above mentioned judgment of the Division Bench of this Court remained suspended till 8-8-2012 when eventually Civil Appeals Nos.164-K and 165-K of 2011 were disposed of for having become infructuous as on 5-8-2012, the High Court of Sindh had held written objective test of all the eligible candidates. It has also come on record that at the time when the fresh advertisement for the post of Civil Judges and Judicial Magistrates was published in newspaper on 7-10-2012 the petitioner also applied afresh, however, by that time the petitioner had already crossed the upper age limit of 35 years. Petitioner, along with several other 282 candidates, filed applications for seeking relaxation in the upper age limit before the competent authority i.e. Hon'ble Chief Justice of this Court. However, such request of all the 282 candidates including the petitioner, who had crossed the upper age limit of 35 years, was turned down by the Administrative Committee and the Hon'ble Chief Justice of this Court vide decision dated 11-1-2012, which was reportedly transmitted on the High Court Website. It is pertinent to note that the petitioner did not file any grievance petition against such decision nor the same has been impugned before this Court. It is equally pertinent to note that when the first written test was held on 5-8-2012, neither the petitioner participated in such test nor approached this Court for seeking any declaration with regard to his eligibility to participate in such written test. The petitioner has sought declaration to the effect that he is entitled to participate in the next Written Test for recruitment of Civil Judges/Judicial Magistrates, which is scheduled to be held on 20th October, 2012, whereas, only such candidates were eligible to participate in the second written test who have cleared the first written test and secured minimum 50% marks. Admittedly, the petitioner neither participated in the first written test nor secured the minimum 50% marks, therefore, such request of the petitioner, under the circumstances appears to be misconceived. We may observe that the petitioner has not shown diligence to seek his remedy in accordance with law, whereas he has also failed to establish his eligibility which could entitle him to participate in the Written Test for recruitment of Civil Judges and Judicial Magistrates as he has already crossed the upper age limit of 35 years.

6. We are of the view that instant petition is devoid of any merits, which was dismissed along with listed application by our short order dated 19-10-2012 and these are the reasons for such short order. HBT/A-123/K Petition dismissed.