' `The petitioner has filed this Constitutional petition with the following prayer:-- "(1) It is therefore, respectfully prayed that the notification, dated 26-2-2002, for the elevation of junior Judge, which is out of turn, be set aside as illegal and without jurisdiction and mala fide.
(2) It is further prayed that senior Judges among the District and Sessions Judges on date of issuance of the said notification may be elevated to the Hon. High Court, instead of junior Judges.
(3) It is further prayed that respondents Nos.4, 5, 6, 7 and 8 may be refrained from acting as Judges of the Hon. High Court, till the decision of this Writ Petition and any other relief under these circumstances."
2. The learned counsel of the petitioner submits that respondents Nos.4 to 8 were elevated as Judges of this Court in violation of the principle of seniority, principle of legitimate expectancy and in violation of the provisions of the Constitution, convention, practice, which would create dissatisfaction, heart-burning to the colleagues of respondents Nos.4 to 8, who had not been appointed in spite of the fact that their colleagues are senior to them. 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 1999 SC 1), S. Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal (AIR 1994 SC 268), Shyam Behari v. State of U.P. (AIR 1976 SC 400) and Supreme Court Bar Association v. Federation of Pakistan and others (PLD 2002 SC 939).
' He further submits that subsequently two senior colleagues of respondents Nos.4 to 8 have also been elevated namely Mr. Justice Sh. Abdul Rashid and Mr. Justice Muhammad Akram Baitu (as he then was). He highlighted that this fact also shows that respondents Nos.4 to 8 were appointed by violating principle of seniority. He further submits that on account of earlier appointment of respondents Nos. 4 to 8 brings their colleagues as junior to them in the seniority list before this Court, who have been elevated during the pendency of this petition. He further urges that elevation of the Judges of the superior Courts is to be made in a transparent manner because it is the basic organ, which relates directly to the people of Pakistan and the litigants so that the litigants and Advocates have no apprehension in their mind qua their independent position. He further urges that respondents are junior in the seniority list as is evident from the seniority list of respondents and other colleagues, which is attached with the Constitutional petition as Annexure-B. He further urges that appointment of respondents Nos.4 to 8 was also criticized in the newspaper as is evident from Annexures-C to F attached with the Constitutional petition.
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 the Chief Justice of 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 and legitimate expectancy is restricted to the appointment of the Chief Justice of High 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 infructuous 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 Akram 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 contentions of the learned counsel of the parties and perused 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 appointdment 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 Supremb 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 they 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 recommendations 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. -Oceanic Trans 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.