2011 SCMR 1030 (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

The seven petitioners before us were appointed as Additional District and Sessions Judges in the Province of Balochistan through a notification dated 7th August, 2006 in the manner and subject to the conditions apparent from the said notification as under: "On the recommendation of the Selection Committee of honourable Judges of this court and in exercise of powers conferred upon him under Rule 4 of Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules 2002, the honourable Chief Justice High Court of Balochistan has been pleased to appoint the following Additional District and Sessions Judges (B-19) on Ad hoc Basis for a period of six months or till the regular selection is done by the Balochistan Public Service Commission whichever is earlier.

2. This order will not confer upon them any right for permanent absorption as Additional District and Sessions Judge or claim to seniority, until they have undergone the procedure as laid down under the Balochistan Additional District and Sessions Judges and District and Sessions Judge Service Rules 2002." (Emphasis and under-lining has been supplied)

2. Constitutional Petition No.803 of 2009 filed by the first six petitioners in the Balochistan High Court questioned the fresh recruitment of Additional District and Sessions Judges through Public Service Commission in pursuance of the Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002, inter alia, on the ground that introduction of the Public Service Commission in the process in question was violative of Articles 2-A, 175 and 203 of the Constitution and accordingly deserved to be declared ultra vires and seeking a consequential direction to the appointing authority to regularise the services of the said petitioners as Additional District and Sessions Judges from the date of their initial appointment i.e. August 7, 2006. Through its impugned judgment announced on 4-3-2010, the Balochistan High Court decided the said petition with following directions:-- "We accordingly issue the following directions:-- (a) That the Government of Balochistan shall make necessary Recruitment Rules of 2002 Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules 2002, within sixty (60) days, enabling the High Court to conduct tests/interviews for recruitment of Judicial Officers through a Commission, comprising of the Administrative Committee of High Court, or a Committee of three or more Judges, constituted by the Administrative Committee. (b) Similarly, the Government of Balochistan shall make necessary amendments the relevant, recruitment rules of Balochistan Civil Judges/Judicial Magistrates Service 2002, within sixty (60) days, enabling the High Court to conduct tests/interviews for recruitment of Judicial Officers through a Commission, comprising of the Administrative Committee of High Court, or a Committee of three or more Judges, constituted by the Administrative Committee. (c) Further, the Government of Balochistan shall make necessary amendments in the relevant recruitment rules of Balochistan Qazis and Member Majlis-e-Shoora Service 2002, within sixty (60) days, enabling the High Court to conduct tests/interviews for recruitment of Judicial Officers through a Commission, comprising of the Administrative Committee of High Court, or a Committee of three or more Judges, constituted by the Administrative Committee. (d) The Balochistan Public Service Commission is, permanently, restrained from conducting any tests/interviews regarding any post of Judicial Officers in future. After aforesaid amendments in the Rules are made, if the Commission of High Court invites applications for the appointment of Judicial Officers, the petitioners will be at liberty to appear before the same for regular appointment, according to the prescribed method."

3. The learned Senior Advocate Supreme Court for the petitioners could not show how the conclusions reached by the High Court regarding the initial appointment of the petitioners being without complying with the procedure prescribed for the purpose, were open to any exception on the legal or even on the factual plane. He could also not show how any right had got vested in the petitioners which could entitle them to the regularization of their services in violation of the conditions on which their appointments had been made and subject to which conditions the petitioners had accepted the said appointments.

4. In this view of the matter, since one of the afore-mentioned conditions was that the appointment in question of the petitioners would not confer upon them any right for permanent absorption as Additional District and Sessions Judges, therefore, we find that the impugned judgment, to the said extent did not admit of any interference.

5. The grievance of the petitioners vis-a-vis introduction of the Public Service Commission in the process of selection of the District and Sessions Judges and of the Additional District and Sessions Judges had been accepted by the High Court declaring that the said part of the said rules were offensive of the concept of independence of judiciary and of separation of judiciary from the executive and consequently the said findings and the resultant declaration and directions of the High Court were also not open to any exception.

6. In this view of the matter, this petition is dismissed. Leave refused. S.A.K./M-18/SC Leave refused.