The case is still at motion stage but we have given extensive hearing to the learned counsel.
Writ Petition No. 3930/2002 through which the appointment of respondents Nos. 4 to 8 as Additional Judges of this Court made vide Notification dated 26.2.2002 had been assailed by the appellant, was dismissed by the learned Judge in Chamber on 26.10.2004. This Intra-Court Appeal has been filed against the same. It may be noted that out of the five learned Judges who were appointed through the above-mentioned notification, four of them have ceased to hold office i.e. Three due to retirement and one of them on expiry of terms as Additional Judge. Only one of them continues to hold office who had been appointed (confirmed) as Judge under Article 193 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The learned counsel for the appellant has been heard who had reiterated the contentions which were raised by him and elaborately mentioned by the learned Judge in the judgment while dismissing the petition. His main contention is that elevation of respondents Nos. 4 to 8 as Judges of the High Court be declared as illegal and mala fide as the seniority of the District & Sessions Judges of the Province was not kept in view rather it was ignored and violated.
3. Though such plea has been duly adverted to in the judgment under appeal and the precedents sought to be relied upon by the learned counsel also find mention in the judgment yet we have on consideration of the matter found the contentions of the learned counsel as untenable. The same proceed on the assumption as if the appointment to this Court as Judge is a "promotion" whereas the language and mandate of Article 197 of the Constitution of Islamic Republic of Pakistan, 1973 relating to the "appointment of Additional Judges" and of Article 193 about the "appointment of the High Court Judge" does not lend support to such an approach. There is a marked distinction between "appointment" and "promotion" which is well understood in the context. See for instance the case of Supreme Court Bar Association through President and others v. Federation of Pakistan and others (PLD 2002 S.C. 939). Sometimes, such an "appointment" is said and described as "elevation" which is misnomer. Such an expression is ordinarily used to bestow respect and dignity because of the prestigious and exalted position of a Judge of superior Court. But it remains an "appointment" in the Constitutional sense with all its manifestations . Even the Notification dated 26199---Chartered Accountants Ordinance, 1961, Ss. 20-D, 9---Assumption of jurisdiction by Council---Challenge to---Propriety of interference by High Court at intermediary stage--- Question of---Writ petition in High Court that since there was no "complaint", the initial step of commencement of proceedings against petitioner was unwarranted and issuance of notice to be declared as of no legal effect as the assumption of jurisdiction by Council itself was the ultra vires- --Validity---Matter was still pending before respondent/institute and the Council, a statutory body was seized of the same who had issued notice to petitioner for affording. Him opportunity of hearing---All such issue's could be raised by petitioner before the Council on the basis of which legality and validity of proceedings initiated against him was sought to be assailed---Writ petition dismissed as pre-mature..2.2002 issued under Article 197 of the Constitution of Islamic Republic of Pakistan, 1973 vide which the appointment of respondents Nos. 4 to 8 was made as Additional Judges of the Lahore High Court also goes to show that it was an "appointment". Thus the tenor of the Notification dated 26.2.2002 as also the provisions of Article 197 of the Constitution make it clear that it is "appointment" as distinct from "promotion". It is consistent with the provisions of Article 197 as also Article 193 of the Constitution. It may be observed that seniority may be one of the factors to be taken into consideration while considering the suitability and fitness of a person to be appointed as a Judge but is not the whole and sole factor or criteria for such "appointment". On consideration of the matter, we find no valid basis to hold otherwise or to interfere in the matter.
The Intra-Court Appeal is dismissed accordingly.
I ntra-Court