Appointment process

2022 SCMR 1923 SUPREME-COURT Judicial Precedent

S. 26Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010, R. 3Constitution of Pakistan, Arts. 25 & 27Honorary appointments to public officesAppointment processChairperson and Members of the Council of Complaints ("COC"), Pakistan Electronic Media Regulatory Authority ("PEMRA")

Appointments to honorary public offices, such as the COC, are to be made through an open and competitive process including advertisement

Offices of the COC are associated with important roles and are required to be filled with the most meritorious candidates

Although neither the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') nor the Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010 ("Rules"), expressly require the public advertisement of the COC slots, however, the Ordinance, and also the Rules, require that the Chairperson and Members of the COC shall be citizens of eminence

Equally true that "citizens of eminence" may not themselves come forward to apply for these honorary positions, rather, the Government itself needs to spot such individuals through a process of headhunt

Relevant directions issued by the Supreme Court for filling places available on the COC stated.

2022 PLC(CS) 1577 SUPREME-COURT Judicial Precedent

S. 26Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010, R. 3Constitution of Pakistan, Arts. 25 & 27Honorary appointments to public officesAppointment processChairperson and Members of the Council of Complaints ("COC"), Pakistan Electronic Media Regulatory Authority ("PEMRA")

Appointments to honorary public offices, such as the COC, are to be made through an open and competitive process including advertisement

Offices of the COC are associated with important roles and are required to be filled with the most meritorious candidates

Although neither the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') nor the Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010 ("Rules"), expressly require the public advertisement of the COC slots, however, the Ordinance, and also the Rules, require that the Chairperson and Members of the COC shall be citizens of eminence

Equally true that "citizens of eminence" may not themselves come forward to apply for these honorary positions, rather, the Government itself needs to spot such individuals through a process of headhunt

Relevant directions issued by the Supreme Court for filling places available on the COC stated.

2022 PLC(CS) 229 SUPREME-COURT Judicial Precedent

Posts of vaccinators (BPS-6)Appointment processSelection of candidates on union-wise basis instead of district or provincial levelLegality

Basic purpose of (selecting vaccinators for the) Expanded Program on Immunization (EPI) was to control the spread of Vaccine Preventable Diseases among infants/children and this target could not be achieved unless it went to grass roots level, which meant that it needed to be spread over the union council level by making appointments of the vaccinators from the concerned union councils enabling the public at large to benefit from the same

Secondly, it was specifically mentioned in the advertisement that an applicant must be resident of the same union council

Petitions for leave to appeal were dismissed and leave was refused.

2021 YLR 470 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Art. 43(2-A)Judges of High Court of Azad Jammu and Kashmir (AJ&K), appointment ofAppointment processConstitutionalityConsultation with the Chief Justice of Supreme Court (Azad Jammu and Kashmir) and Chief Justice of the High Court

In the present case, the requirements regarding consultation process as stated in the Constitution of Azad Jammu and Kashmir and the precedents of the superior Courts were not fulfilled

Consultation had not been made in accordance with the spirit of the provisions of Art. 43(2-A) of the Constitution and the dictum laid down by the superior Courts

Supreme Court declared the appointments of the respondent-Judges, as ultra vires the Constitution and without lawful authority, but directed that validity shall be given to all the acts done by them as Judges on the basis of principle of de-facto doctrine including the drawing of the financial benefits etc.; and that the appointing authority shall initiate the fresh process for appointment against the vacant positions strictly in the light of the guidelines given in Muhammad Younas Tahir's case (PLD 2012 SC AJ&K 42).

2021 PLD 1 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Art. 43(2-A)Appointment of appellant as Judge and thereafter as Chief Justice of High Court, Azad Jammu and KashmirAppointment processConstitutionalityConsultation with the Chief Justice of Azad Jammu and Kashmir and Chief Justice of the High Court

Held, that the President receiving advice of the Council without completion of the consultative process with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court was unconstitutional

On the basis of such advice no one could be validly appointed as a Judge of the High Court

For appointment of the appellant as Judge of the High Court, the advice of the Council was tendered without consultation of the Chief Justice of the High Court

Furthermore the record showed that when the Chief Justice of the High Court was consulted, he simply replied to the President that the appellant qualified for appointment as a Judge of the High Court and there was nothing against him in the official record

Such reply could not be termed as effective, meaningful, purposive and consensus-oriented consultation as it did not disclose whether the appellant was comparatively suitable or preferable or had such comparative qualities to be preferred among others

Appointment of the appellant as Judge of the High Court and thereafter as Chief Justice of the High Court was set-aside.

2021 SCMR 1204 SUPREME-COURT Judicial Precedent

Posts of vaccinators (BPS-6)Appointment processSelection of candidates on union-wise basis instead of district or provincial levelLegality

Basic purpose of (selecting vaccinators for the) Expanded Program on Immunization (EPI) was to control the spread of Vaccine Preventable Diseases among infants/children and this target could not be achieved unless it went to grass roots level, which meant that it needed to be spread over the union council level by making appointments of the vaccinators from the concerned union councils enabling the public at large to benefit from the same

Secondly, it was specifically mentioned in the advertisement that an applicant must be resident of the same union council

Petitions for leave to appeal were dismissed and leave was refused.

2021 PLC(CS)N 22 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Appointment processScopePetitioners challenged the appointment of respondents being based on favoritismValidityRules and procedure were meant to ensure appointment on pure merits

Criterion or eligibility, per requirement of posts, was meant to choose the best by excluding possibility of choosing the blue-eyed at the cost of merit/fitness

Fair and transparent recruitment process was the only way to choose the best regardless as to for what post the recruitment was meant

Fact finding committee had already found the recruitments to be illegal

High Court directed that all the fresh appointments in the concerned department to be made through a third party

Constitutional petition was disposed of accordingly.

2020 CLC 210 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S.43(2-A)Judge of High Court of Azad Jammu and Kashmir (AJ&K)Appointment processLegality

Appellant filed a writ petition before the High Court challenging the appointment of a Judge of High Court (AJ&K) on the basis that such appointment had been issued on the basis of an invalid, illegal and unlawful advice and the same was against the Azad Jammu and Kashmir Interim Constitution Act, 1974 ('the Constitution')

During the pendency of the writ petition, the appellant, also moved an application for consolidation of his writ petition with the other six writ petitions on the ground that identical points were involved in all the writ petitions

High Court dismissed the writ petition in limine on the basis that it had been filed with mala fide for benefit of some other persons, and that it was hit by the principle of laches as it was filed after lapse of considerable time of appointment of the Judge in question

Held, that nothing was available on record to show that from where the High Court (AJ&K) ascertained that the writ petition had been filed with mala fide

Admittedly the appellant was neither a candidate for his elevation as a High Court Judge when the Judge in question was appointed

Respondents also failed to point out that for whose benefit the appellant filed the writ petition

Since nothing was available on record to show mala fide of appellant, therefore, the High Court was not justified in applying the principle of laches

Impugned judgment/order of High Court was set aside and case was remanded to the High Court with the directions that the same be placed before the Bench seized with the matter of appointments of the Judges of the High Court and that the concerned Bench shall decide the present writ petition within a period of 45 days from the communication of the present judgment

Appeal was allowed.

2017 PLD 164 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 10Public sector universitiesVice ChancellorsAppointment process

Constitution of a Search Committee for the purposes of making recommendations for appointment of Vice Chancellors to all public sector universities

Legality and propriety

One Search Committee had been formed or constituted to undertake the search of a Vice Chancellor for all the public sector universities

Certain public sector universities specialized in their fields and dealt with a specific area of learning, thus, it was imperative that the expertise of the Committee members would differ for each different genre of universities

One Search Committee should not have been constituted to undertake the search of a Vice Chancellor for all the public sector universities

Legal requirement was that separate Search Committee should have been constituted for each public sector university under the relevant law for that university

Search Committee should conform to the requirements of the particular university and the nature of academic activity that that university was required to impart under its statute

While constituting a Search Committee the majority of the members ought to have no connection with the Government so as to keep the process free of taint and nepotism

Notification whereby a single Search Committee was constituted to undertake the search of a Vice Chancellor for all public sector universities was non est and unlawful and was, therefore, set aside

High Court directed that the Provincial Government should initiate a fresh process for appointment of Vice Chancellors for public sector universities

Constitutional petition was allowed accordingly.

2016 PLC(CS) 269 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Chairperson, of Public officeAppointment processNon-transparencyAppointee lacking any experience of heading and managing a public fund

Daughter of Prime Minister was appointed as Chairperson, Prime Minister's Youth Programme, however it was not shown whether there was a transparent process for her selection and appointment and that whether she possessed the requisite experience to head and manage a public fund of Rs.9 billion

Chairperson had tendered her resignation before present order, thus in wake of such resignation present matter stood concluded

High Court, however observed that considering that the Chairperson was to "manage, finalize and supervise the implementation of the Program" which comprised tax payer's money to the tune of Rs.9 billion, any future appointment to the said post must be transparent and through proper open selection process after giving due weightage to relevant experience and qualifications of the person concerned

Constitutional petition was disposed of accordingly.

2015 PLD 317 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Arts. 175A(2)(i), (ii), 175A(5)(i), (ii), 175A(6)(i), (ii), 175(7) & 199Constitution petitionAppointment of judges to the Supreme Court, High Courts and the Federal Shariat CourtAppointment processChief Justice and senior judge(s) of the court, function ofScopePublic trustees

Chief Justice of the relevant court was under a constitutional obligation to draw upon the collective wisdom of the senior Judges of the court before finalizing the list of proposed names

Chief Justice and the Senior Judges of the court acted as trustees of the public in discharging such onerous responsibility of proposing the best of the best to be elevated to the bench

Constitutional expectation was that the names put up before the Judicial Commission by the respective Chief Justice would carry the blessing of the collegium of senior Judges of the court (ordinarily the Administrative Committee of the Court)

Stewardship of the Chief Justice and the Senior Judges of the court, required that a more structured succession planning for selection of future judges be put in place, which required that the (High) Court with institutional alertness, regularity and transparency, identified and headhunted potential future judges, well in advance

Constitutional petition was allowed accordingly.

2015 PLD 317 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 175A(2), (5), (8) & (12)Judicial Commission of Pakistan Rules, 2010, R. 5(2)Appointment of judges to the Supreme Court, High Courts and the Federal Shariat CourtAppointment processJudicial Commission and Parliamentary CommitteeFunction and powersIndependence of judiciary from the executiveScope

Constitutional metamorphosis under Art. 175A of the Constitution had taken judicial appointments out of the yoke of individual discretion into a more open and transparent collegial debate and discussion

Both the Judicial Commission ("Commission") and the Parliamentary Committee ("Committee"), which were constitutional selection bodies, rested on such fundamental premise

Constitutionally it was imperative that the collegial constitutional ethos ran through the entire process of judicial appointment

Any part of the appointive process that was devoid of such collegial thought was constitutionally deficient

Architecture of judicial appointments under Art. 175A of the Constitution provided for a two-step appointive process for the judges of the superior judiciary

Name of the candidate required approval by both the constitutional bodies i.e., the Commission and the Committee

Where a name was approved by the Commission but not approved by the Committee, the appointive process came to an end and the candidate was not selected

Only exception to the two-step selection process was when the Committee failed to come up with an opinion within fourteen days from the receipt of the nomination from the Commission

Such two-step (appointment) process required independent assessment and evaluation of the candidate at two stages

Role of the constitutional bodies (i.e. Commission and Committee) was not to judge each other's assessment but was to carry out an independent scrutiny and analysis of the candidate followed by their opinion supported with reasons

Committee, in the present case, did not veto the decision of the Commission, but it simply rejected the candidate on the basis of its own independent assessment

Said two constitutional bodies (i.e. Commission and Committee) were not designed or structured to pry into each other's affairs, decisions or to re-examine the findings of the other

Both said bodies were insulated coaxial autonomous bodies with their own constitutional obligations to perform i.e., to give an independent opinion about the candidate on the basis of the evidence collected by them

Failure of the Committee to come up with an opinion on the candidate within fourteen days, resulted in the acceptance of the nomination of the Commission, showing that opinions of both the constitutional bodies had equal constitutional significance but unless both the opinions were in favour of the candidate, the judicial appointment could not be confirmed, unless of course the Committee failed to give an opinion within the time prescribed

Integral to the constitutional two-step appointment design was the distinct functional domain of the Commission and the Committee

Unless the said two bodies operated in their own spheres, covering their own respective fields, the two-step process lost its constitutional importance

Commission was a high powered collegium comprising 13 members, including eight judges and five other members connected with the judicial branch of the State

By its very constitution, the Commission indubitably was the most qualified group to assess and evaluate the legal acumen, caliber, legal skills, professional commitment, devotion and professional integrity of the candidate

Committee, on the other hand, with members from the legislative and the executive branches of the State, was there to examine all the other personal antecedents of the candidate

Said two constitutional bodies functioned in tandem with collaborative congruity, while maintaining their autonomy, and worked towards only one objective i.e., to select the best person for the job

Autonomous exercise of power by the Commission and Committee which represented the judicial and legislative/executive branches of the State, was a prominent feature of the constitutional construct and was pillared on deeply revered constitutional values of separation of powers and independence of judiciary

While, all the three branches of the State, through the Commission and Committee actively participated in judicial appointments, they simultaneously guarded their boundaries to maintain separation of powers and independence of judiciary by forming independent opinions about the candidates

Such autonomy, openness and transparency in the method of appointing the judges was an essential requirement of sustaining public confidence in the judiciary

Constitutional autonomy and independence of the Commission and Committee required that they carry out their own investigation, inquiry and collect their own independent information and evidence before formulating their opinion

Rule 5(2) of the Judicial Commission of Pakistan Rules, 2010 empowered the Commission to collect any information or record required by it from any person or authority for the purposes of carrying out its functions

Similar power to frame Rules also vested in the Committee under Art.175A(17) of the Constitution

While the two bodies had similar investigative powers, their fields of inquiry were distinct and different

Commission limited itself to the legal antecedents of the candidate, while the Committee was free to examine all the other antecedents of the candidate to ensure a very high standard of propriety, integrity, assiduity and personal conduct

Once a candidate received a nod of approval by the Commission and his candidature was placed before the Committee, denial of approval by the Committee required compelling reasons based on irrefutable evidence against the nominated person, which should irresistibly justify that the nominated person was not fit to be appointed as an Additional Judge.

2013 PLD 244 SUPREME-COURT Judicial Precedent

S. 6(1)Chairman of Pakistan Electronic Media Regulatory Authority (PEMRA)Eligibility criteriaAppointment processScope

Position of Chairman PEMRA had to be filled by a person who fulfilled the exceptional and stringent requirements prescribed in the Ordinance and not by a casual appointee

Appointment of Chairman had to be made through an open and transparent process to ensure that the appointee met the objective criteria specified in the Ordinance.