Concept of Seniority in Superior Courts

CONCEPT OF SENIORITY IN SUPERIOR COURTS <!--[if gte mso 10]> CONCEPT OF SENIORITY IN SUPERIOR COURTS By Justice S.A. Rabbani Former Judge, Sindh High Court and Federal Shariat Court, Karachi Seniority amongst the judges of the High Courts and Supreme Court is a hot topic of controversy these days. It would therefore be expedient to point out a serious misconception about the subject. Articles 177 and 193 of the Constitution describe eligibility for appointment of Judges in the superior courts. These provisions give the minimum requirement for the purpose. Criteria for selection from those who are eligible has nowhere been provided. Seniority has, therefore, been made the criterion. It has not been taken care of that the Constitution has deliberately avoided the concept of seniority and promotion in the superior courts. There is no provision in the Constitution for promotion of a Judge of a High Court or the Supreme Court at any stage. At all stages fresh appointments are made. The Judges of High Courts and Supreme Court neither have a constitutionally or legally recognized seniority, nor they carry it on further elevation because they are not promoted to their new assignment. Elevation to a High Court or to the Supreme Court, or as Chief Justice is not a promotion within the meaning applicable in the case of civil servants and the rules and procedures for promotion in the case of civil servants are not applicable to High Court and Supreme Court Judges. Even in the case of civil servants the seniority-cum-fitness rule is applicable to lower grades only. Seniority is given importance for promotion in lower grades because the officers or officials at that level don't have to make policy and important decisions. In the case of higher grade positions of civil servants also, the procedure of promotion is based on selection on merit from the eligible candidates irrespective of seniority. On the pattern of the system of seniority in civil servants, attempts have been made to introduce it to the superior judiciary. Most significant fact that militates against the independence of judiciary is that the power of appointment of superior court judges has been given to the Executive. The judiciary has attempted to put a clog to these powers of the Executive by imposing seniority rule but the concept of seniority in superior courts is against the spirit of the Constitution and it is perhaps, for the reasons, that it is not being followed. The concept of seniority has been introduced to facilitate promotions of the civil servants and it is based on an assumption that a senior official has more experience of the job. In the superior judiciary, seniority is of no consequence because in their case there is no promotion at any stage. Moreover, the Constitution does not deem it consistent with the dignity of the superior court judges that they should fight with each other for seniority like low grade officials. This is the reason why no law or rules have ever been made in respect of seniority of High Court or Supreme Court Judges. Obviously the seniority rules made for civil servants are not applicable to the High Court and Supreme Court Judges. Seniority makes an incumbent entitled to better privileges and thus the concept of annual increment in salary was introduced. An officer one year senior gets more salary. For the positions where there is no seniority, there is no annual increment in the salary. Ministers in a cabinet have no inter se seniority and, therefore, all the ministers get the same privileges and salary irrespective of their date of appointment. Similarly, High Court Judges, even the Additional Judges appointed for specific period, get the same privileges and salary without any annual increment. Likewise, Supreme Court judges get the same privileges and salary irrespective of their date of joining. The Constitution envisages equality of all judges in a court. Traditionally, our courts nominate a judge as `Senior puisne judge' but the Constitution does not recognize this designation. Some times a Senior Minister is appointed in a cabinet, but this status is also not recognized by the Constitution. Apart from a mention of seniority in Article 209, which is merely for the purpose of selection to the Supreme Judicial Council Article 180 of the Constitution, as it stands today, is the only place in the Constitution where a concept of seniority of judges has been introduced, but it is not consistent with the scheme of the Constitution. It provides that in case of vacancy in the office of the Chief Justice of Pakistan, or during his absence, the President shall appoint the most senior of the other judges of the Supreme Court to act as Chief Justice of Pakistan. This brings in a concept of seniority amongst the judges of the Supreme Court, which is otherwise foreign to the Constitution itself. Let us see how it happened. Present shape of Article 180 of the Constitution is same that was in the original document when it was adopted. It was amended by the Constitution (Fifth Amendment) Act, 1976. It was again given the previous shape through Revival of Constitution Order, 1985 (P.O. No.14 of 1985). The Bill introduced in the National Assembly on December 31, 1972 to provide for the Constitution contained Article 180 in the following form:-- "180. At any time when--- (a) the office of Chief Justice of Pakistan, is vacant; or (b) Chief Justice of Pakistan is absent or unable to perform the functions of his office due to any other cause, such other judge of the Supreme Court as the President may appoint shall act as Chief Justice of Pakistan." This clause of the Bill came under consideration of the Assembly on 27th March 1973 for adoption and it was adopted in the form in which it was introduced and this form provided that such other judge, irrespective of any seniority, as the President may appoint, shall act as Chief Justice of Pakistan. The shape of the Article, as adopted at that stage by the Assembly, was compatible with the scheme of the Constitution which is that there is no seniority amongst the judges of the Supreme Court. All the previous Constitutions promulgated in Pakistan, including the Government of India Act, 1935, contained similar provisions for the appointment of one of the other judges of the Court as Acting Chief Justice. Section 202 of the Government of India Act, 1935, Article 152 of 1956 Constitution, Article 53 of 1962 Constitution and Article 60 of the Constitution that was framed in 1971, all provided for appointment of one of the other judges of the Supreme Court as acting Chief Justice. Constitution thus never recognized a concept of seniority amongst Supreme Court judges. After ten days, however, on 7th April 1973, discussion on this Article was reopened in the assembly and a member, Mr. Noor Ahmed Sukhera, moved an amendment that introduced appointment of most senior of the other judges as Acting Chief Justice. The record of the Assembly proceedings shows that neither the mover explained why this amendment was expedient, nor any discussion on it was held in the Assembly although it was a departure from the consistent principle in the previous Constitutions as well as the earlier decision of the same Assembly. In case, by virtue of this Constitutional requirement, one particular person designated as "most senior of other judges" is the person who has to act as Chief Justice in absence of the latter, there is, practically, no need of an order of appointment to be made by the President. Article 196 is the corresponding provision in respect of High Courts. It also under went the same treatment, it was first adopted in the form given in the Bill. After ten days, discussion was reopened on it and the amendment was moved and adopted without any explanation or discussion. In the original version of the Constitution Articles 180 and 196 were identical. Both were amended through the Constitution (Fifth Amendment) Act, 1976 and both were substituted in their previous form by P.O. 14 of 1985. The error was taken care of in respect of Article 196 and "most senior of other judges" was replaced by "one of the other judges". It could not be done in Article 180, perhaps, inadvertently. It can, therefore, be seen that neither the Constitution envisages the concept of seniority in case of superior courts judges nor it can be made criterion for selection and appointment of a superior court judge. It is also detrimental to merit and merit should be the criterion for appointments at that stage. If the authorities find themselves unable to determine merit correctly and honestly, we can only pray to God.