1998 PLP (C (PLC(CS))

KHALIL-UR-REHMAN KHAN, J.

The petitioners seek leave to appeal against the order dated 23-9-1997 of the Peshawar High Court, Peshawar, whereby the Constitution Petition filed by them was dismissed.

2. The petitioners alongwith others, including ten ladies and in all forty-four, were appointed as Civil Judges-cum-Judicial Magistrates, pursuant to the selection made by a committee comprising, -amongst others, four learned Judges of the High Court, after holding written test and interview, on contract basis for a period of one year which period was later extended for one year more by the Government of N.-W.F.P. the learned Chief Justice of the Peshawar High Court recommended to the Government to regularise the appointments as they had two years judicial experience to their credit but this recommendation was not accepted by the respondents/Government. The petitioners were advised to appear before the N-.W.F.P. Public Service Commission in the competitive examination scheduled to be held as per advertisement of the N.-W.F.P. Public Service Commission for filling the sixty-six posts of Civil Judges-cum-Judicial Magistrates issued on the requisition of the High Court.

3. The petitioners challenged the refusal of the respondents/Government to appoint them on regular basis by filing Constitution Petition before the Peshawar High Court seeking direction in the nature of mandamus to appoint them as Civil Judges-cum-Judicial Magistrates, raising inter alia the following pleas:-- (i) That the recommendation of the Hon'ble Chief Justice, for the regularisation of services of the selectees is binding upon the Provincial Government. Moreso, the said recommendations are only compatable with the principle of separation and independence of judiciary. The Provincial Government always honour the recommendation of the High Court in the matter of appointment of Additional District and Session Judges in BPS-18. Therefore, their refusal to honour the recommendation of the High Court in the matter of regularisation of services of the selectees in BPS-17 is unreasonable and beyond comprehension specially when the Selection Committee included Secretary S&GAD and Secretary Law Department. (ii) That all the other High Court in the country have regularised the service of Judicial Magistrates-cum-Civil Judges appointed, without examination, or even interview and they are appointed Civil Judges BPS-17 and Senior Civil Judges BPS-18 on regular basis. (iii) That the selectees have acquired sufficient experience for nearly two years and their service record is excellent and satisfactory. Their rights cannot be equalised with the new comers. Thus, the principle of equality is violated.

4. The Constitution Petition was dismissed in limine observing, inter alia, that a person seeking issuance of writ of mandamus must have a clear legal right to the performance by the other party of a particular duty sought to be enforced. The duty must be one which is manifestly defined, imposed or enjoined by law and that the contractual rights and liabilities and terms thereof cannot be got enforced through Constitutional jurisdiction. It was also added that the plea that non-regularisation by the Provincial Government is violative of the concept of separation of judiciary from the executive and erodes the independence of judiciary is without foundation and is also untenable for various reasons. The order of dismissal of the writ petition has now been assailed by filing the present petition.

5. Barrister Zahoorul Haq, Senior Advocate, learned counsel for the petitioners has reiterated the pleas which were urged before the High Court. The emphasis of the learned counsel was on the concept of separation of judiciary from the executive. According to the learned counsel, the Provincial Government with a view to uphold the independence of judiciary, should have accepted the recommendation of the learned Chief Justice of the High Court now weight is to be given to the choice made by the Chief Justice in the matter of selection of Judicial Officers in view of the dictum laid down in the case AI-Jehad Trust through Raeesul Mujahideen Habib-ul Wahab-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324). Reference was also made to Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) and Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105), to advance the plea of separation of judiciary from executive.

6. We have gone through the impugned order and have given due consideration to the contentions urged before us. The learned Judge of the High Court were right in observing that appointment of the petitioners on contract basis furnished no legal right on them to seek appointment on regular basis. No legal right admittedly flows from the appointment made by the Government and accepted by the petitioners and as such no duty was cast on the respondents/Government to appoint the petitioners as Civil Judges cum-Judicial Magistrates on regular basis. A writ in the nature of mandamus is not a writ of course or of right. It cannot be claimed as a matter of right. There must be a legal right existing in the petitioners and a corresponding A legal duty imposed upon the public officer or the authority for issuance of a direction in the nature of mandamus. Learned Judges of the High Court were, therefore, right in observing that issuance of direction prayed for would be violative of law namely, section 7 of the N-W.F.P. Public Service Commission Ordinance, 1978 read with Rule 3 and Schedule ' A' of the N-.W.F.P. Public Service Commission (Functions) Rules, 1983 which prescribe that appointments to the post in the Province in BPS-16 to 20 are to be made on the advice of the Public Service Commission, based on the test and examination conducted by the Commission for the purpose, and that the posts held by the petitioners being in BPS-17 can only be filled up in the manner prescribed in law. The concept of independence of judiciary does not make the judiciary above the law. Rather, obedience to law and strict adherence thereto by the judiciary will ensure its independence and enhance its prestige. Moreover, only such recommendation will be meaningful and effective which is made in accordance with law and not which will be g violative of the law or which will have the effect of frustrating the law. The appointments are to be made by the authority with which such power vests in the manner provided by law and not otherwise. The observation made in the Judges case (supra) cannot be made a basis for violating the law or for acting in violation of law.

7. For the reasons given above, we find no force in the Petition. Leave to appeal is, therefore, refused and the petition is dismissed. A.A./M-46/S Leave refused