No one could be promoted on the basis of seniority alone as merit and eligibility were also important factors for promotion and higher appointments in the high court, the Supreme Court said in its judgement on the appointment of judges to the high court.

“Seniority or length of service is not considered a solitary benchmark or standard, in fact competence, antecedents and credentials are also predominant components for progression to the particular post,” said the written order which was released on Tuesday.

The judgement was issued on the petitions filed against the Peshawar High Court’s May 10, 2022, decision where the Parliamentary Committee decision was set aside with the directions of the government to implement the Judicial Commission of Pakistan’s recommendations.

The commission, with two members dissenting and one member abstaining, had recommended Justice Fazal Subhan, Justice Shahid Khan and Justice Dr Khurshid Iqbal appointment as additional judges of the Peshawar High Court. KP’s Additional Advocate General Kamran Hayat and Advocate Supreme Court Muhammad Faheem Wali were also recommended for appointment as additional judges of the PHC for a period of one year, by the majority of 12 members with one member abstaining.

In its decision, the committee was the unanimous opinion that three positions for which three judges were nominated should be kept vacant and the names of all the five judges may be re-considered keeping into view their seniority and competence.

The matter was referred back for reconsideration.

The three judges had approached the PHC to set aside the committee’s decision. The high court had set aside the committee decision and directed the government to implement the commission’s recommendations.

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Judgement

A three-member bench comprising Justice Munib Akhtar, Justice Muhammad Ali Mazhar, and Justice Athar Minallah had heard the case. But Justice Minallah had issued his dissenting note.

“It is indisputable that the committee can neither travel beyond its bounds or limits, nor can it undertake or embark on the role and functions of the commission,” said the judgement.

It added that the raison d’etre of enacting Article 175A in the Constitution for the appointment of judges to the superior Courts through the commission was to make recommendations by majority without according any primacy or supremacy to any individual member.

“Absolute discretion is not given to anyone, not even to the Chairman of the Commission, rather the decision is to be made by majority without any provision for a casting vote where there is a tie among the members,” it said.

The judgement added that the collegium of the commission was not a one-man show but consisted of, amongst others, the CJP, the four senior-most judges of the court, the chief justice of the high courts concerned, the federal minister for law, justice and parliamentary affairs, the attorney general for Pakistan and representatives of the bar.

The commission and committee were both obligated and duty-bound to act within the spheres of their dominions and command, it said and added that the realm of powers and jurisdiction of the commission within the framework of the collegium was to evaluate the professional calibre, judicial skill, legal acumen, personal conduct and suitability of the nominees, which terminus cannot be trespassed or encroached on by the committee under the region of its powers.

“The committee cannot make their decision on the basis of minority views expressed during discussion but in totality; the majority discussion must be considered and in case of a variance of opinion, the committee should provide independent reasoning and the decision should not be based on guesswork or picking and choosing the points from the gist of discussion recorded in the minutes of meeting of the commission.”

Dissenting note

In his dissent note, Justice Minallah said that the additional attorney general has rightly pointed out that the time has come to revisit the jurisprudence laid down in the Munir Bhatti case.

“This court ought to recognise the unique representative character of the Parliamentary Committee and its role as a forum created for democratic accountability and oversight. It represents the litigants and the people, who are the sole stakeholders of the judicial organ of the state. It is their interest that is of paramount importance because they suffer when an appointment is not made on merit.”

The note said that the commission had failed in its duty to make the nominations on the basis of merit and on the touchstone of the principles discussed above.

“All that the committee had done was to highlight the illegality of the nomination and contravention of the terms of powers conferred on the commission under Article 175A,” it said.