2005 PLP 388 (YLR)

3. The learned Deputy Attorney General for Pakistan raised two following preliminary objections:‑‑ "(i) Appointment of respondents Nos.4 to 8 was made on 26‑2‑2002, who had taken oath under Order No.1 of 2000 issued by the Chief Executive, therefore, Constitutional petition is not maintainable in view of Article 270(AA)(2)(4) & (5); (ii) The aggrieved persons have not agitated the matter before this Court, therefore, petitioner has no locus standi to file this Constitutional petition." He further urges that word seniority is not qualification prescribed under the Constitution as is evident from Article 193 of the Constitution. He further urges that Respondents Nos.4 to 8 were appointed on the recommendations of this Court and the Honourable Chief Justice this court and the Honourable Chief Justice of Pakistan. Their recommendation is not justiciable under Article 199 of the Constitution. He further urges that the scope of the principle of seniority an legitimate expectancy is restricted to the appointment of the Chief Justice of Hip Court and the Chief Justice of Pakistan therefore, these principles neither apply nor can be extended to the appointment of the Judges of the High Court. In support of his contention, he relied upon Supreme Court Bar Association through President and others v. Federation of Pakistan and others (PLD 2002 SC 939). He further urges that the Honourable Supreme Court has distinguished all the case‑laws on the subject in the Supreme Court Bar Association's case supra, therefore, judgments relied by the counsel of the petitioner are distinguished on facts and law. He further urges that respondents Nos.4 to 8 were not promoted from the posts of District and Sessions Judges they are elevated as the Judges of the superior Court, therefore, their appointment is termed as fresh appointment. In support of his contention, he relied upon the following judgments:‑‑ Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 SC 161); Al‑Jehad Trust v. Federation of Pakistan and others (PLD 1996 SC 324); Government of Sindh v. Sharaf Faridi and others (PLD 1994 SC 105); Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869); S.P. Gupta v. M. Tarkunde (AIR 1982 SC 149); S.P. Bharucha M.K. Mukherjee v. Manohar, G.T. Nanavati, S. Saghir Ahmad K. Venkataswami (AIR 199 SC 1), S. Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma M.M. Punchhi, Yogeshwar Dayal (AIR 1994 SC 268), State of Bihar v. Madan Mohan Prasad and others (AIR 1976 SC 404) and Supreme Court Bar Association v. Federation of Pakistan and others (PLD 2002 SC 939). He further urges that by efflux of time petition has become in fructuous on the following reasons:‑‑ (i) Respondents Nos.7 and 8 were confirmed in accordance with law; (ii) Respondent No.4 has since been retired after confirmation; (iii) Whereas the cases of respondents Nos.5 and 6 were also considered for confirmation but their tenure of the office is extended for another period of one year. He further urges that during the pendency of this writ petition, Mr. Justice Sh. Abdul Rashid and Mr. Justice Muhammad Akrarn Baitu are elevated to the Bench.

4. The learned counsel for the petitioner in rebuttal submits that Supreme Court Bar Association's case relied by the learned Deputy Attorney General for Pakistan is distinguished on facts and law. It is only applicable to the appointment of Chief Justice of High Court and the Chief Justice of Pakistan. He further submits that petitioner has a locus standi to challenge the vires of the appointment of the Judges of the superior Courts. In support of his contention, he relied upon S.P. Gupta v. M. Tarkunde (AIR 1982 S.C. 149). He further urges that the appointment of respondents Nos.4 to 8 is not fresh appointment as respondents Nos.4 to 8 are eligible to take pension on the basis of their previous services rendered by them in the subordinate judiciary. He further urges that this Court has ample jurisdiction to take the cognizance of the matter in spite of the bar contained in Article 270 (AA). Even otherwise the Chief Executive Order No.1 of 2000 has no relevancy to resolve the controversy in the present case.

5. I have given my anxious consideration to the contention, learned counsel of the parties and the record.

6. The Honourable Supreme Court has considered almost all the case‑law on the subject in Supreme Court Bar Association's case (PLD 2002 SC 939) and laid down the following principle:‑‑ "In this backdrop, we proceed to consider the first common contention of the petitioners that appointment of Judges from the Lahore High Court has been made in violation of the principles of seniority and legitimate expectancy. We are afraid the contention is misconceived and travels beyond the parameters indicated in the Judges case and Asad Ali's case. In our considered view, the scope of the principles of seniority and legitimate expectancy enunciated in those cases is restricted to the appointment of Chief Justice of a High Court and the Chief Justice of Pakistan and these principles neither apply nor can be extended to the appointment of Judges of the Supreme Court. It is nowhere mentioned in those judgments that the principles of seniority and legitimate expectancy shall also apply in the matter of appointment of Judges of the Supreme Court. The omission appears to be intentional and not accidental in view of the line of reasoning in the said judgments. In the Judges case while interpreting Article 193 of the Constitution it was held that there is no Constitutional requirement to appoint the most senior Judge as Chief Justice of a High Court whenever permanent vacancy occurs but there is a Constitutional convention in this context which has developed by continuous usage and practice over a long period of time and must be followed in the interest of independence of judiciary. In Asad Ali's case this view was applied with greater force in the case of appointment of the Chief Justice of Pakistan under Article 177 of the Constitution on the strength of the, Constitutional convention and past practice and the analogy of Article 180 of the Constitution which provides that in absence of the Chief Justice of Pakistan the most senior Judge of the Supreme Court shall be appointed as Acting Chief Justice of Pakistan. There exists no Constitutional convention or past practice to appoint the most senior Judge of, a High Court as a Judge of the Supreme Court. The Constitution makers were aware of the expression 'the most senior' used in Article 180 of the Constitution and in the light of the well‑established principle of interpretation of the Constitution and law, the absence of the words, `the most senior' in Article 177 for appointment of Judges of the Supreme Court would show that seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court. If for the purpose of appointment of Judges in the Supreme Court, the seniority of the Judges inter se in the High Courts would have been the rule, there was no impediment in the way of the Constitution‑makers to use the expression, `the most senior' in Article 177 of the Constitution. Even, juristically speaking and analyzing the rationale of the principle of appointment of Judges in the Supreme Court, it becomes very clear that the Chief Justice of Pakistan being the pater familia of the judiciary of the country is the best Judge to ascertain and gauge the fitness and suitability of the Judges working in the High Court for appointment as Judges of the Supreme Court. We are clear in our mind that neither the principle of seniority is applicable as a mandatory rule for appointment of Judges in the Supreme Court nor the said rule has attained the status of a convention." There are yet two other, factors which give the rule of fitness and suitability an edge over the principles of seniority and legitimacy expectancy. First the appointment of a Judge of the High Court as a Judge of the Supreme Court is a fresh appointment and not promotion and secondly, supersession of senior Judges of the High Court is not unprecedented as is evident from the following chart." The question of law has already been considered by the Honourable Supreme Court in Mr. Justice Ghulam Hyder Lakho, High Court of Sindh, Karachi and others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 2000 SC 179). The relevant observation is as follows:‑‑ "In any case, it is a matter for consideration by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. They have to decide, whether a particular candidate has requisite experience and once the form the view that the candidate has the requisite experience as envisaged by sub‑clause (a) of clause (2) of Article 193, this issue will not be justiciable before the Court of law. The Court cannot sit and decide whether a particular person has the requisite experience or not? It is a matter of subjective satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan." (The underlining is by us to supply emphasis). In view of the above‑quoted observations of Ajmal Mian, J. it is quite clear that the recommenda tions of the Chief Justice of the High Court and that of Chief Justice of Pakistan are not justiciable. " The question of law has already been decided by the Honourable Supreme Court in the aforesaid judgments keeping in view the analogy laid down by the Honourable Supreme Court in Supreme Court Bar Association's case supra, the principle of seniority is also not attracted in the present case. It is settled principle of law that even obiter dicta of the Honourable Supreme Court is binding upon this Court. Meaning thereby any observation by the Honourable Supreme Court even when obiter is binding on the High Court. In arriving to this conclusion, I am fortified by the following judgments:‑‑ M. Ismail and Sons v. Trans Oceanic Steamship Co. Ltd. and others (PLD 1966 Dacca 296), Ghaus Muhammad v. The State and another (PLD 1978 Lahore 1235), Martial Law Administrator, Zone `D' and others v. Muhammad Niaz (PLD 1979 SC 921) and The State v. Aziz Ahmed and another (1975 PCr.LJ 105). The contention raised by learned counsel of the petitioner that at the time of elevation, principle of seniority has to be given due consideration. This contention may have some weight but I am not in a position to take a view which is contrary to the principle laid down by the Honourable Supreme Court in view of Articles 189 and 190 of the Constitution: The decisions aforesaid are not obiter dicta because the question was directly considered and decided in terms of law laid down by this Court in Ghaus Muhammad's case supra. Deviation from the judgment of the Honourable Supreme Court is not approved by the Honourable Supreme Court as per law laid down by the Honourable Supreme Court in Muhammad Niaz's case supra (PLD 1979 SC 921). In view of what has been discussed above, I would be bound by the law laid down by the Honourable Supreme Court Bar Association's case supra. In the light of the law laid down by the Full Bench of this Court in M.A. Khan Lughari's case (PLD 1967) Lahore 227). The question of law as mentioned above, has been finally decided by the Honourable Supreme Court after considering all the case‑law in the judgment of the Supreme Court Bar Association's case supra, therefore, this petition has no merits and the same is dismissed. M.H./W‑27/L Petition dismissed.