At least 18 judges fail departmental exams, but remain in service

IHC rules civil judges cannot challenge process if results are not in their favour

ISLAMABAD: Having decided hundreds of cases over a period of four years, as many as 18 judges of the Islamabad district judiciary have failed in their departmental exams which tested their knowledge on criminal, civil and Shariah laws among other subjects.

These 18 civil judges-cum-judicial magistrates of Islamabad, who had been appointed in the Islamabad Judicial Service on September 22, 2012, assailed two notifications of the Islamabad High Court.

The first notification, which the civil judges challenged, notified the results of the first departmental examination which had been held from August 8, 2015, to September 5, 2015. The judges had failed that exam.

In the second notification, issued on June 23, 2015, had directed the judges to appear in a second departmental examination.

The judges challenged the examination, mandatory for their confirmation, and obtained restraining orders over it from the Islamabad High Court.

Earlier this month on June 6, Justice Mohsin Akhtar Kayani dismissed the petitions of the civil judges challenging departmental examinations for their confirmation.

“If the petitioners are allowed to get through with such situation without departmental examination, it means this court further perpetuates the illegality which is against the mandate of law,” Justice Kayani wrote in the order.

The counsel for the civil judges, though, argued that the examination committee which had been constituted by IHC’s chief justice comprised of two judges instead of three. Further, the committee appointed an external examiner to conduct the exams, setting the question papers and to check the answer scripts.

Justice Kayani, however, noted that the judges since they had appeared in the departmental exam, they could not challenge it when the results were not per their expectations.

He added that there were hundreds of thousands law graduates who were eager to join the judicial service on the same posts which the petitioners held.

In the judgment, Justice Kayani added that by claiming exemption from the examinations and challenging it, “the claim of the petitioners is to be considered against the law and cannot be allowed in any manner, rather such kind of claim will further earn a bad name for the institution.”

“If the petitioners being probationer have not made sufficient use of opportunities or have otherwise failed to give satisfactory performance,” Justice Kayani said, “their services may be dispensed with as a last resort.”

However, he refrained from out rightly dismissing the civil judges.

“I have constrained myself from declaring any such action,” as he pointed to the IHC chief justice, judges, administration committee and the examination committee of IHC as further recourses.

Justice Kayani stated that the petitioners had no right to say that they were discriminated against and that they would not appear in any examination and that all the petitioners, who themselves are judges, do not want to obey the rules in letter and spirit.

Before the exams were held, the verdict said, the petitioners were working as judicial officers for more than four years and that their judicial experience was sufficient training for the departmental examinations.

“The petitioners cannot be allowed to avoid exams merely on the grounds that they did not get training.”

The court elaborated that training and departmental examination is separate in their meaning unless anyone has been prescribed or both have been prescribed by the IHC.

The Islamabad District Bar Association, being a party in the case, argued that the petitions were not maintainable and that the judges had no authority or right to challenge the departmental exams on the ground that their terms and condition of service were duly communicated to them in a September 22, 2012, notification.

Rule 20 (3) of the IJS Rules 2011, the IDBA said, made training and exams mandatory for being confirmed. The judges, IDBA argued, could not challenge the second examination after failing the first.

Meanwhile, Islamabad Advocate General Mian Abdul Rauf - representing the IHC registrar - argued that the petitions of the civil judges were not maintainable under Article 199(5) of the Constitution which stipulates that an administrative order could not be challenged.

On maintainability, Justice Kayani said further noted that orders passed by the IHC administration committee and examination committee means that the IHC and the registrar were just a conveying authority of the orders of the IHC and “no writ is competent” against such orders or notifications.

The petitioners, however, could not demonstrate any mala fide, any illegality in any manner the verdict noted.

Admittedly, the order read, all the timelines for the exams, August-September 2015 and subsequently March-July 2016 had already expired and that the petitioners had missed their chance to appear in the departmental examination.

The petition was subsequently dismissed.