2018 PLP (C (PLC(CS)N)

MOHAMMAD IBRAHIM KHAN, J.

Imploring the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, Wasim Shahzad petitioner herein has come up with the prayer: 1. "Letter dated 07.10.2016, may be declared as illegal, incorrect, unlawful, and ineffective on rights of petitioner and against the principles of legal rights and locus poenitentiae.

2. Respondents Nos.2 to 5 may further be directed to properly summon petitioner for interview/viva voce and may be treated in accordance with law and thereafter his result may be declared with other candidates who applied for the post advertised.

3. Notification dated 26.08.2015 may be declared as illegal, incorrect being against provision of section 3 subsection (41) of General Clauses Act, 1956 and against rights of the petitioner being not a valid notification.

4. Any other relief to which the petitioner is entitled in the facts and circumstances of the case not specifically prayed for may also be granted."

2. The nucleus of the petitioner grievance is that he is through and through from soup to nuts an LL.B qualified practicing lawyer at lower Courts on obtaining license from Khyber Pakhtunkhwa Bar Council since 09.12.2013. The Registrar Peshawar High Court as per advertisement No: 01 dated 3rd October, 2013 invited applications for 77 temporary posts of Civil Judges/Judicial Magistrates/Illaqa Qazis from KP domiciled for candidates by a target date. Referring to judicial pronouncements under observations: "that it would be in the interest of justice if the High Court adds two years experience at the Bar to the eligibility criteria" The proposed amendment of two years experience was added in Rule 7 (1)(a) of the Khyber Pakhtunkhwa Judicial Service Rules, 2001 through Notification dated 26.08.2015 but because this Notification was not published in official gazette as per provision section 3(41) of West Pakistan General Clauses Act, 1956, therefore it has lost its given effect under the rule of law. Because of pendency of matter before the Honourable Apex Court, the advertisement letter went off the path for any appointment. Later another advertisement came into view for advertising 103 posts of Civil Judges Cum-Judicial Magistrates, this time the petitioner one of the candidate got through the eligibility criteria who even at large liberated from the list of 996 candidates who were rejected, available on the Website of Khyber Pakhtunkhwa Public Service Commission. With no feelings of discomposure on receiving call up letter dated 08.01.2016, the petitioner thrived and made a fortune with success even when called for psychological written test and psychological assessment, interview was held on 04.08.2016 and 08.09.2016.

3. Before hearing of final pleasant news for appointment as Civil Judge Cum-Judicial Magistrate/Illaqa Qazi which could become wheel of fortune of his career, the petitioner was stunned and startled on receipt of letter dated 07.10.2016 that his application for the post of Civil Judge/Judicial Magistrate was rejected due to the onliest ground of deficiency of experience for the post advertised.

4. Having heard learned counsel for the petitioner great at length. All the record annexed with the petition gone through with his assistance.

5. Reliance is placed 2015 CLC 500 (Husain Mohammad v. Vice Chancellor Islamia College University and others), defining various rights like fundamental rights, vested rights and legal rights 2015 SCMR 1418, PLD 1990 Peshawar 127, PLD 1969 SC 407 governing the rules of locus poenitentiae "if once a right accrued to a person after complying and fulfilling all legal and codal formalities then the same rights could not be withdrawn or destroyed." Principle of locus poenitentiae creates a legal bar and restrictions on exercise of powers by the concerned authorities. 1994 SCMR 2232 Maxim of natural justice "Audi Alterm Partem highlighted the petitioner was not heard. Its violation of provision of law, warranting pressing into service constitutional jurisdiction. 2009 CLC 72, PLD 2011 SC 34 Referral of famous Maxim. "Accomoni observentiae non est Recederdum." which says that if a thing is provided to be done in a particular manner then it must be done in that manner and if not done in that particular manner then it shall not be considered. Therefore, the proposed amendment is hit by the maxim when not published.

6. We have to the (sic) degree taken into account all submissions and in the light of dictums in particular reference to the rights so vested for the applicability of the rules of locus poenitentiae, the natural justice of affording the opportunity of personal hearing, the applicability of decimal fraction of deficiency of 19 days in practicing law of two years a compulsory condition set forth before a candidate is eligible to apply for the post of Civil Judge Cum-Judicial Magistrate/Illaqa Qazi, warranting provision of section 2 subsection (41) of the General Clauses Act, 1956 whether such Notification would lose its efficacy because of non-publishing in official gazette. So much so treatment of the petitioner at par with the rest of the candidates and that all actions be backed by law under Articles 4 and 5 of the Constitution of Pakistan.

7. Yes the petitioner was enrolled with KP Bar Council on 09.12.2013. Last date of submission of application for apply to the post of Civil Judge Cum-Judicial Magistrate/Illaqa Qazi was 19.11.2015, thus he is short of 19 days than two years experience at his credit. The relevant general condition of advertisement No.01 dated 3rd October, 2013 is reproduced here. Notes:

1. Candidates will be admitted to the examination provisionally at their own risk subject to be found eligible in all respects. On detailed scrutiny of the applications after the examination is over, if any candidate is found ineligible in any respect under the rules for the examination, his/her candidature will be cancelled regardless of the fact whether he/she has appeared in the examination or qualified therein. To avoid frustration the candidates are advised in their own interest to make sure before appearing in the examination that they fulfill all the requirements of the rules relating to the examination. This prerequisite condition is repeated in advertisement 07/ 2015 on page 22 of this writ petition: xviii. The applicants are once again advised to make sure that they are eligible for the advertised posts because they will be admitted to the text/examination provisionally at their own at their risk subject to be found eligible in all respects. On detailed scrutiny of the applications after the test/written examination is over, if any candidate is found ineligible in any respect under the rules, his/her candidature will be cancelled regardless the fact whether he/she has appeared in the test/examination or interview qualified therein. The petitioner while submitting his form under the subject competitive examination for the post of Civil Judges/Judicial Magistrates/Illaqa Qazis (Advt # 07/2015, serial # 1) has given an affidavit that he will be self responsible if he contravened the conditions. Annexure J on page 57 annexed with the writ petition is the call up letter where under General Instructions there is a warning extended:

1. You are admitted to the above examination provisionally subject to your eligibility in all respects. Your candidature will be cancelled if you are found ineligible at any stage for any reason and in that case will not be called for further interview. The petitioner should have been wise one and he being forewarned at certain stages, most importantly he was himself sentient of the required shortcoming is by his conduct estopped to seek any remedy before any forum for redressal of his grievance.

8. The requirement of publication of a Notification dated 26.08.2015 under the added rule 7 (1) (a) of the Khyber Pakhtunkhwa Judicial Service Rules, 2001 in the official gazette the same would be mandatory not directory in nature within the meaning of section 2(41) of General Clauses Act, 1956 and in that case non-publication of a Notification would be nothing and bad in the eye of law. This issue has recently been settled before this Bench in W.P. No.2655-P/2016 titled Muhammad Karim v. KPK through Chief Secretary Civil Secretariat, Peshawar and as many as 35 in numbers other writ petitions, therefore the Notification issued in this behalf has all the legal value in the eyes of law despite of non-publishing in the Official Gazette.

9. Most of the authorities referred in the writ petition are on different footings than the facts and circumstances of this case, therefore this petition has no decorous brawn to be admitted for regular hearing. It is fitly dismissed in limine. ZC/69/P Petition dismissed.