NADEEM AHMED ADVOCATE vs FEDERATION OF PAKISTAN

' KHILJI ARIF HUSSAIN, J.---The above petition was accepted by our short order dated 21-12-2012 and these are the reasons of the same.

2. Through this petition, filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as the Constitution ] the petitioner seeks the following relief:-- "(a) to issue appropriate directions to the respondent for issuance of notifications;

(b) to declare that till issuance of the notifications, being a mere clerical/ministerial formality, the honourable Judges of honourable High Court mentioned at (a) and (b) of paragraph above, may continue to function as Judges of honourable Islamabad High Court without having to depend on issuance of notification(s);

(c) Any other better or more appropriate consequential relief may also be granted in the interest of justice, especially to ensure that in future, the respondent may not use this kind of hindrance to the smooth functioning of judicial organ."

3. Facts necessary to dispose of the listed petition, not in dispute, briefly stated are that when the tenure of Mr. Shaukat Aziz Siddiqui; Mr. Noor-ul-Haq N. Qureshi; and Mr. Muhammad Azeem Khan Afridi, who were initially appointed as Additional Judges of Islamabad High Court, Islamabad, for a period of one year with effect from the date they took oath of their offices was nearing expiry, their cases were referred to the Commission and after deliberations it nominated the names of Mr. Shaukat Aziz Siddiqui, as a Judge of Islamabad High Court, Islamabad with a vote of 8 to 2 and unanimously nominated Mr. Noor-ul-Haq N. Qureshi, as an Additional Judge of Islamabad High Court, Islamabad, for further period of six months from the date of expiry of his present term, whereas the name of Mr. Muhammad Azeem Khan Afridi was dropped as was not nominated.

4. The meeting of the Commission was attended by Mr. Justice Muhammad Anwar Khan Kasi, as most senior Judge of Islamabad High Court, Islamabad.

5. On receipt of nominations, in respect of Mr. Shaukat Aziz Siddiqui, as a Judge of Islamabad High Court, Islamabad; and Mr. Noorul-Haq N. Qureshi, as an Additional Judge of Islamabad High Court, Islamabad, for a period of six months from the date of expiry of his tenure, the Parliamentary Committee [hereinafter referred to as 'the Committee], after due consideration unanimously endorsed the nomination made by the Commission and sent the same to the Prime Minister of Pakistan to forward them to the President of Pakistan for issuance of requisite notifications.

6. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court appearing on behalf of the petitioner contended that once the Judicial Commission nominated Mr. Justice Shaukat Aziz Siddiqui for appointment and Mr. Justice Noor-ul-Haq Qureshi for extension for a period six months as Judges of the Islamabad High Court and their nomination after having been confirmed by the Parliamentary Committee has been sent to the Prime Minister and then forwarded to the President for appointment, the President has no other option but to do the needful. The learned counsel next contended that Mr. Justice Muhammad Anwar Khan Kasi being the most Senior Judge rightly participated in the meeting of the Judicial Commission nominating the appointment and extension of the Judges mentioned above, therefore, the President has no power whatever to delay or decline the appointment on any pretext if seen in the light of Eighteenth and Nineteenth Amendment. Even if, it is assumed, added the learned counsel, that the Judge participating in the meeting was a non-entity it would not materially affect the result if the doctrine of severance is applied. The learned counsel to support his contention placed reliance on the case Managing, Director, SSGC Ltd. v. Ghulam Abbas (PLD 2003 Supreme Court 724). The learned counsel next contended that had the decision been made by a margin of one, the argument of the learned counsel for the President and the judgment rendered in the case of "Regina v. Bow Street Metropolitan Stipendiar Magistrate and others Exparte Pinochet Ugarte (No,2)" would have had some relevance but where the decision is 7/2, absence of persona designate or participation of a non-entity would be of little consequence. When we asked what course of action would be open before the President if a person nominated for appointment of a Judge of Supreme Court does not fulfil the requirements laid down by Article 177(2) or a person nominated for appointment of a Judge of the High Court does not fulfil the requirements laid down by Article 193(2) of the Constitution, the learned counsel except referring to the stance taken by the Government in C.M.A.

No,1602 of 2010 in Constitution Petition No,11 of 2010 could not state anything more.

7. Learned Attorney-General appearing on the notice of the Court contended that the Judicial Commission was not properly constituted, as persona designate did not attend the meeting and the person who attended the meeting was just a non-entity, therefore, the whole process shall stand vitiated. The President, the learned Attorney-General submitted, is not bound to appoint a nominee of such Judicial Commission notwithstanding nomination so made was confirmed by the Parliamentary Committee and forwarded to the President by the Prime Minister on its receipt. The learned Attorney-General next contended that where in the judgment rendered in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 Supreme Court 879), this Court annulled the appointment of many Judges for want of recommendation by the consultee, a nomination originating from the Judicial Commission which was not properly constituted has to be given alike treatment. The learned Attorney-General by referring to the commentary on the Constitution of India by Durga Das Basu argued that the President is not a robot placed in the President House nor a Computer controlled automation, nor a figure head nor ornamental piece placed in the show window of the nation called the President's House. Instead, the learned Attorney General submitted; he is a living human who on being selected by the nation is endowed with all dignity, honour and prestige as head of the republic for upholding the Constitution and the laws, therefore, his role as such cannot be doubted in any situation. Seen from such an angle, the learned Attorney-General concluded, the President cannot be kept out of the affairs regulating the appointment of Judges.

8. We have taken into consideration contentions raised by the learned counsel for the parties and perused the record.

9. The President of Pakistan filed a reference under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 seeking advice of this Court on various questions including the question whether the Judicial Commission was properly constituted as per provisions of Article 175A of the Constitution as Mr. Justice Muhammad Anwar Kasi who participated in meeting was not a member thereof and was a stranger to the proceeding. We have answered the question in Reference No,1 of 2012 in detail and the reasons which are recorded in reply to this question which is the only issue in this petition. We would like to reproduce the same as under:- "78. As regards question No,(iv) "Whether JCP was properly constituted as per provision of Article 175-A of the Constitution as Mr. Justice Kasi who participated in the meeting was not a Member thereof and was a stranger to the proceedings". Mr. Justice Muhammad Anwar Khan Kasi attended the meeting of the Commission, dated 22-10-2012. The Chief Justice of Islamabad High Court, 'Islamabad, initiated the names of Mr. Shaukat Aziz Siddiqui, as a Judge and Mr. Noor-ui-Haq N.

Qureshi, as an Additional Judge [for a period of six months] of Islamabad High Court, Islamabad.

For this reason, the notifications in respect of these learned Judges were not issued. The Commission after deliberations nominated the above named learned Judges by majority of 7 to 2.

Even if it is accepted that Mr. Justice Muhammad Anwar Khan Kasi was not the most senior Judge of Islamabad High Court, Islamabad, and attended the meeting of the Commission, it is established from the record that on the date when the meeting of the Commission was called for the purpose of considering the appointment of three A Additional Judges of the High Court, Mr. Justice Riaz Ahmad Khan was on ex-Pakistan Leave and the former (Mr. Justice Muhammad Anwar Khan Kasi) was the most senior Judge available of the said High Court. The terms "Chief Justice" and "Acting Chief Justice" have been defined by the Constitution, whereas the term "most senior Judge" has not been defined. However, even if it is accepted that Mr. Justice Muhammad Anwar Khan Kasi, was not eligible to sit in the meeting of the Commission, Clause 8 of Article 175A stipulates that the decision of the nomination of a person for any vacancy of a Judge of the superior Court is to be taken by the Commission, by majority of its total members and as such, his attending the said meeting does not vitiate the entire proceedings or makes the nomination invalid.

79. In the case of Managing Director, SSGC Ltd. v. Ghulam Abbas (PLD 2003 Supreme Court 724), it was held that:- "Perusal of subsection (1) of section 3-A of the Act, 1973 reveals that "minimum strength of a Bench to exercise or perform functions of the Tribunal is two Members, including the Chairman," meaning thereby that while conducting hearing, the status of a Chairman is also of a Member. Whereas under clause (a) of section 3-A(2), decisions are to be pronounced by the majority of the MembeRs, Clause (b) of section 3-A(2) further provides that in case of division between Members of the Bench or in case of equal division of the Members, the case shall be referred to the Chairman and whatever opinion is expressed by him, would have supremacy and constitute the decision of the Tribunal. In this case impugned judgment has been authored by the Chairman and all the Members have concurred with him, therefore, presuming that Mr. Aftab Ahmed joined proceedings without lawful authority but nevertheless impugned judgment can sustain, as it has been rendered by the Bench comprising of more than two Members of the Service Tribunal and apprehension of influencing the judgment by Mr. Aftab Ahmed (Retired Member) stands excluded as it was authored by a former Judge of High Court being the Chairman of the Service Tribunal.

' In addition to above legal position, the impugned judgment can be treated to have been delivered validly under de facto doctrine.

' Thus endorsing the principles discussed in above paras, the impugned judgment is declared to have been passed validly because Mr. Aftab Ahmed immediately before his retirement had been performing same functions, therefore, it would be deemed that in exercise of same powers in good faith he associated himself in the proceedings.

' Besides above conclusion, the inclusion of Mr. Aftab Ahmed as a Member of the Bench, had also not caused prejudice to any of the parties because he has not authored the judgment nor there is any likelihood of his having influenced the judgment in any manner as it was authored by the Chairman and remaining two Members of the Bench had concurred with him. No useful purpose as such would be served by remanding the case to the Service Tribunal for fresh decision because dispute is lingering on between the parties for the last so many years, therefore, justice demands that now cases should be decided finally unless remand of the cases is inevitable under the circumstances of each case."

80. In the case of Muhammad Saleem and 12 others v. Secretary Prosecution, Government of Punjab, Lahore and another (2010 PLC (C.S.) 1), a three member Bench of the fahore High Court, while dealing with the question that the committee which conducted, the interviews of the petitioners did not comprise all the four members, appointed by the Chief Minister of Punjab vis-a- vis the persons (strangers), who have participated in the interview process, applied the rule of severance, excluded the marks given by the stranger and held that whatever result emerges on account of the exclusion of the stranger's marks, shall be taken to be the result of the committee, as quorum of the selection committee was complete.

81. In the case of Aderson v. City of Persons (496, P.2d 1333-Kan: Supreme Court 1972), the Supreme Court of Kansas while dealing with a question, "The appellants' first point involves an alleged conflict of interest arising from the fact that City Commissioners Myer S. Freshman and Barton Dean and all of the five urban renewal commissioners owned property within the general urban renewal area at the time they voted on various resolutions during the progress of the urban renewal program. The legislature provided in the urban renewal law for a special conflict of interest section to disqualify any officer or employee of the city or of the urban renewal board who owned property included or planned to be included in an urban renewal project." noted as under:- "It is undisputed in the evidence that on May 16, 1966, at the time the resolutions were passed by the city commission declaring certain areas of Parsons to be "slum and blight areas" and creating and appointing the urban renewal agency, two of the three Parsons city commissioners owned real estate in the slum or blight areas. The same two commissioners continued to own their properties at the time the urban renewal plan was adopted. The two commissioners mentioned were Myer S. Freshman and Barton Dean. On January 22, 1969, the city commission by resolution approved the urban renewal project. At that time commissioners Freshman and Dean owned property within the urban renewal area but did not own any land within the area covered by the urban renewal project. As pointed out heretofore, at all stages in the development of the urban renewal program, all of the five urban renewal commissioners had an interest in property located within the general urban renewal area. The first issue to be determined is whether or not the various actions of the urban renewal board in establishing and developing the urban renewal program and the various actions of the Parsons city commissioners in approving the urban renewal plan and in approving the urban renewal project were so tainted with conflict of interest within the meaning of K.S.A. 1 7-4 758 as to completely invalidate ab initio all of the actions and steps taken by the urban renewal board and by the city commissioners in developing the Parsons urban renewal program. It should be emphasized that each of the commissioners made a full disclosure of his property interest in the urban renewal area before participating in any action of his board.

' We, of course, recognize the common law principle that a public officer owes an undivided duty to the public whom he serves and is not permitted to place himself in a position that will subject him to conflicting duties or cause him to act other than for the best interests of the public. If he acquires any interest adverse to those of the public, without a full disclosure it is a betrayal of his trust and a breach of confidence. (United States v. Carter, 217 U.S. 286, 54 L. Ed. 769, 30 S.Ct.

515.)

' The law, however, does not forbid the holding of an office and exercising powers thereunder because of a possibility of a future conflict of interest. (Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360, 89 A.L.R.2d 612.) It has generally been held that the vote of a council or board member who is disqualified because of _interest or bias in regard to the subject matter being considered may' not be counted in determining the necessary majority for valid action. There are many cases cited in the annotation in 42 A.L.R. 698 in support of this principle. It is also the rule that where the required majority exists Without the vote of the disqualified member, his presence and vote will not invalidate the result and further that a majority vote need not be invalidated where the interest of a member is general or of a minor character. (Beale v. City of Santa Barbara, 32 Cal.App. 235, 162 P. 657;; Corliss v. Village of Highland Park, 132 Mich. 152, 93 N.W. 254, adhered to on rehearing 132 Mich, 159, 95 N. W. 416; 56 Am.Jur.2d, Municipal Corporations, Etc. Section 172.)

82. As regards Pinochet .Case (R v. Bow Street Metropolitan Stipendiary Magistrate (1999) UK (H.L.52), the House of Lords on allegation that one of the Law Lords member of majority decision had links with Amnesty International complaining of the extradition of Gen. Pinochet, set aside his earlier majority decision by 3 to 2."

10. In the case of Sindh High Court Bar Association (PLD 2009 SC 879) it was held that "The appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary. The Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court. The consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/ confirmation of a Judge in the superior Court shall be invalid. The independence of the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary. An Acting Chief Justice was not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness. Since consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Article of the Constitution was mandatory, any appointment/confirmation made without consulting any of the consultees interpreted above would be violative of the Constitution and, therefore, would be invalid". This Court declared appointment of Judges of the superior Courts unconstitutional as Mr. Abdul Hameed Dogar, J, in the presence of Chief Justice Pakistan from 3-11-2007 till 16-3-2009, was neither a permanent Chief Justice nor an Acting Chief Justice, therefore, he could not validly be "consulted" for appointment of Judges of the superior. Courts under Articles 177 and 193 of the Constitution. The consultative profess was mandatory and without it no appointment or confirmation could be made, and in absence of it appointment of a Judge in the superior Courts shall be invalid,

11. The opinion on President's Reference (Reference No,1 of 2012) completely covers the disposal of Constitution Petition No,126 of 201Z, wherein the question of law agitated by the petitioner is identical to the legal proposition answered by us in the Reference. The petition is converted into appeal and allowed in terms of our short order which reads as under:-- "Through this petition, filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as 'the Constitution7, the petitioner seeks following relief:- "(a) to issue appropriate directions to the respondent for issuance of notifications;

(b) to declare that till issuance of the notifications, being a mere clerical/ministerial. Formality, the honourable Judges of honourable High Court mentioned at (a) and (b) of paragraph above, may continue to function as Judges of honourable Islamabad High Court without having to depend on issuance of notification(s);

(c) Any other better or more appropriate consequential relief may also be granted in the interest of justice, especially to ensure that in future, the respondent may not use this kind of hindrance to the smooth functioning of judicial organ."

(2) From the perusal of material made available before us it appears that the Judicial Commission of Pakistan [hereinafter referred to as 'the Commission] in its meeting held on 22-10-2012, under the provisions of Article 175-A of the Constitution, recommended Mr. Shaukat Aziz Siddiqui, as a Judge and Mr. Noor-ul-Haq N. Qureshi, as an Additional Judge for a period of six months of Islamabad High Court, Islamabad, from the date of expiry of their tenure as Additional Judges of the said High Court. The Parliamentary Committee on receipt of the aforesaid nominations from the Commission, in terms of Article 175-A(13) of the Constitution, after unanimously confirming the same, sent the matter to the Prime Minister of Pakistan to forward the same to the President of Pakistan for appointment. The President of Pakistan apparently not issued orders for appointment allegedly for the reason that one of the participants out of ten was not qualified to attend the meeting of the Commission.

(3) We are of the view that even if it is assumed that one of the members, being non entity sat, voted and took part in the proceedings culminating in nomination, but it would not vitiate the proceedings when the Judicial Commission in view of Clause 8 of Article 175A of the constitution has nominated by majority of its membership. We are supported in our view from the judgment reported as Managing Director, Sui Southern Gas Company LTD, Karachi v. Ghulam Abbas and others (PLD 2003 SC 724).

(4) After hearing Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court representing the petitioner and the learned Attorney-General for Pakistan, and for the reasons to be recorded later, we accept this petition and direct the concerned authorities to issue notifications, thereby appointing Mr. Shaukat Aziz Siddiqui, as a Judge of Islamabad High Court, Islamabad, and Mr. Noor-ul-Haq N. Qureshi, as an Additional Judge of Islamabad High Court, Islamabad, for a period of six months giving, effect from the date of expiry of their earlier notifications. "

' Sd/- Khilji Arif Hussain, J. Sd/- Tariq Parvez, J.

' I agree for the reasons recorded in my separate note in response.

' Sd/- Ejaz Afzal Khan, J.

' Sd/- Gulzar Ahmed, J. Sd/- Sh. Azmat Saeed, J.

' EJAZ AFZAL KHAN, J.---I have gone through the judgment authored by my brother Mr. Justice Khilji Arif Hussain. I have also gone through the answers to the questions and the reasons recorded therefor. I am not inclined to agree with some of them and thus answer the questions in my note recorded as under.

2. Brief facts leading to the institution of the reference and the Constitution Petition are that a vacancy occurred in this Court on the retirement of Mr. Justice Mian Shakirullah Jan. In order to fill the said vacancy, the Judicial Commission of Pakistan in its meeting held on 27-9-2012 nominated Mr. Justice lqbal Hameed-ur-Rehman as a Judge of this Court. His nomination as such necessitated the nomination of a Judge of the said High Court for appointment as Chief Justice. Mr. Justice Muhammad Anwar Khan Kansi was nominated for appointment as Chief Justice of the High Court on the ground that he was the most Senior Judge of the said Court. His nomination was confirmed by the Parliamentary Committee and sent to the Prime Minister, who forwarded it to the President for appointment. The President having serious reservations to the status of Mr. Justice Muhammad Anwar Khan Kasi as the most Senior Judge declined to appoint him and thus filed the reference raising the questions recounted above. Constitution Petition mentioned above is also a corollary of the same episode.

3. Mr. Waseem Sajjad, learned Senior Advocate Supreme Court while appearing on behalf of the President contended that when the principle underlying determination of seniority of the Judges elevated on the same day is seniority in age, Mr. Justice Riaz Ahmed Khan, being senior in age is the most Senior Judge to be nominated as Chief Justice, Islamabad High Court. This practice the learned counsel added, being more than a century old has been consistently followed in the Indian subcontinent and even after its partition. The learned counsel to substantiate his argument referred to the letter No,F.12(5)/86-All, dated 30-4-1987, Government of Pakistan, Ministry of Justice and Parliamentary Affairs (Justice Division). The learned counsel by elaborating his argument contended that when according to the dictum laid down by this Court in the case of "Al-Jehad Trust through Raeesul Mujahideen Habib-ulWahabb-ul-Khairi and others v. Federation of Pakistan and others" (PLD 1996 SC 324), the most senior Judge of a High Court has a legitimate expectancy to be appointed as Chief Justice, Mr. Justice Riaz Ahmed Khan being the most senior Judge of the High Court, would be entitled to be nominated for appointment as Chief Justice in the absence of any valid reason and that the nomination of Mr. Justice Muhammad Anwar Khan Kasi is not only an out right departure from the century's old practice but also against the law of the land, therefore, the President is not bound to appoint such person as Chief Justice. The learned counsel next contended that the Judicial Commission, nominating Mr. Justice Shaukat Aziz Siddiqui for appointment and Mr. Justice Noor-ul-Haq N. Qureshi for extension as Judges of the High Court, cannot be said to have been properly constituted in the absence of most senior Judge, therefore, their nomination will not have any legal or constitutional sanctity notwithstanding it having been confirmed by the Parliamentary Committee was sent to the Prime Minister and then forwarded to the President. This nomination would be all the more without any legal and Constitutional sanctity, argued the learned counsel, when the proceedings before the Commission have not been conducted in the manner prescribed by the Constitution. The learned counsel to support his contention referred to the cases of "Human Rights Cases Nos, 4668 of 2006, 1111 of 2007 and 15283-G of 2010, (Action taken on news clippings regarding Fast Food Outlet in F-9 Park, Islamabad). (PLD 2010 Supreme Court 759), and "Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Islamabad and others v. Aftab Ahmad Khan Sherpao and others" (PLD 1992 SC 757(K). The fact, maintained the learned counsel, that a nonentity, sat, voted and took part in the proceedings of the Judicial Commission would alone call for their annulment. The learned counsel to support his contention placed reliance on the case of "Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No,2). Even otherwise, the learned counsel submitted, the President being appointing authority is duty bound to ensure obedience to the Constitution and the law cannot appoint a person who has not been nominated in accordance with the provisions of the Constitution.

4. During the course of arguments I asked the learned counsel for the President that when the proceedings in the house in view of the provision contained in Article 67 of the Constitution do not become invalid on the ground that some persons who were not entitled to sit, vote or otherwise take part in the proceedings, sat, voted and took part therein, how a proceedings of the Commission can become invalid on this score, the reply of the learned counsel was that the proceedings in the former case do not become invalid because it has been so provided in the aforesaid Article but there is nothing of that sort in Article 175-A of the Constitution. The learned counsel by referring to Article 48 of the Constitution contended that despite insertion of Article 175- A in the Constitution, the President still has the power to send back a nomination to the Judicial Commission for reconsideration: But when asked whether a nomination originating from the Judicial Commission, confirmed by the Parliamentary Committee, and forwarded by the Prime Minister to the President could be treated as an advice and returned as such for reconsideration in terms of Article 48 of the Constitution when it does not provide for any such eventuality, the learned counsel did not give any satisfactory answer. The fact is that his .Own reply to our query with reference to Article 67 of the Constitution barricaded his way to take a U-turn. Though he swang to yet another argument by submitting that the Constitutional provisions have to be interpreted as a whole and not in isolation but that would not be of any help to him. The learned counsel further contended that if the principle of seniority and that of legitimate expectancy linked therewith, are ignored without reasons to be recorded, it would give rise to the whim and caprice of the person sitting at the peak which is not conducive for independence of judiciary. The learned counsel also waxed eloquent by asking this Court to redefine the mode and manner of appointing judges but when I observed that all these questions have been elaborately dealt with in the case of "Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another" (PLD 2011 SC 407), the learned counsel submitted that they have been, but since they have been dealt with collaterally, the judgment so rendered being obiter dicta will not have a binding force. I would have agreed with the learned counsel for the President but he could not point out anything striking or significant in the judgment which went un-noticed and unattended. It is, therefore, not obiter dicta by any attribute. This judgment could have been treated as sub-silentio: a precedent not fully argued, but again the learned counsel could not advert to any legal or Constitutional aspect of the case which escaped the notice of the Bench rendering the judgment, so as to relegate it to the status of sub- silentio. The learned counsel next contended that Mr. Justice Muhammad Anwar Khan Kasi could not be held as most senior Judge on the strength of the judgment rendered in the case of "Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through President and another" (PLD 2012 Supreme Court 1067), as it does not provide any premises for such conclusion. How the proceedings in the Judicial Commission could be held in camera, asked the learned counsel, when the legislature in its wisdom purposely provided otherwise, so as to ensure complete transparency and open scrutiny. What would be the criterion, asked the learned counsel, for elevating a Judge or a Chief Justice of a High Court to the Supreme Court and how far the inter se seniority of the Judges or the Chief Justices of the High Courts would be relevant in this behalf?.

5. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court appearing on behalf of the petitioner contended that once the Judicial Commission 'nominated Mr. Justice Shaukat Aziz Siddiqui for appointment and Mr. Justice Noor-ul-Haq Qureshi for extension for a period six months as Judges of the Islamabad High Court, the Parliamentary Committee after having confirmed their nomination sent it to the Prime Minister and the Prime Minister forwarded it to the President for appointment, the President has no other option but to do the needful. The learned counsel next contended that Mr. Justice Muhammad Anwar Khan Kasi being the most Senior Judge rightly participated in the meeting of the Judicial Commission nominating the Judges mentioned above, therefore, the President has no power whatsoever to delay or decline the appointment on any pretext if it is seen in the light of Eighteenth and Nineteenth Amendment. Even if it is assumed, added the learned counsel, that the Judge participating in the meeting was a non-entity, it would not materially affect the result if the doctrine of severance is applied. The learned counsel to support his contention placed reliance on the case "Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others" (PLD 2003 SC 724). The learned counsel next contended that had the decision been made by a margin of one, the argument of the learned counsel for the President and the judgment rendered in the case of "Regina v. Boy Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte (No,2) would have had some relevance but where the decision is by the majority of 7 against 2, absence of the persona designate or participation of a non-entity would be of little consequence. When I asked what course of action would be open before the President if a person nominated for appointment of a Judge of the Supreme Court does not fulfil the requirements laid down by Article 177(2) or a person nominated for appointment of a Judge of the High Court does not fulfil the requirements laid down by Article 193(2) of the Constitution, the learned counsel except referring to the stance taken by the Government in C.M.A.

No, 1602 of 2010 in Constitution Petition No,11 of 2010 could not state anything more.

6. Learned Attorney-General appearing on the Court's notice contended that the Judicial Commission was not properly constituted, as the persona designata did not attend the meeting and the person who attended the meeting was just a non-entity therefore, the whole process shall stand vitiated. The President, the learned Attorney General submitted, is not bound to appoint a nominee of such Judicial Commission notwithstanding his nomination was confirmed by the Parliamentary Committee and forwarded to the President by the Prime Minister on its receipt. The learned Attorney General next contended that when in the judgment rendered in the case of "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others" (PLD 2009 SC 379), this Court annulled the appointment of many Judges for want of recommendation by the consultee, a nomination originating from the Judicial Commission which was not properly constituted has to be given alike treatment. The learned Attorney-General by referring to the commentary on the Constitution of India by Durga Das Basu argued that the President is not a robot placed in the President House nor a Computer controlled automation, nor a figure head nor ornamental piece placed in the show window of the nation called the President's House. Instead, the learned Attorney General submitted, he is a living human who on being selected by the nation is endowed with all dignity, honour and prestige as head of the republic for upholding the Constitution and the laws, therefore, his role as such cannot be doubted in any situation. Seen from such angle, the learned Attorney-General concluded, the President cannot be kept off the affairs regulating the appointment of Judges.

7. Mr. Makhdoom Ali Khan, learned Senior Advocate Supreme Court appeared as Amicus Curiae on Court's notice. The learned counsel in the first instance addressed the Court as to the binding nature of an advice rendered by this Court in the exercise of its advisory jurisdiction. The learned counsel by referring to the relevant paragraph of the judgment rendered in "Reference No,2 of 2005 by the President of Pakistan" (PLD 2005 Supreme Court 873) submitted that though an opinion given by the Court on a reference filed by the President is not a decision between the parties but since it is handed down after undertaking an extensive judicial exercise and hearing of Advocates it has a binding force. Such advice, the learned counsel submitted has to be accepted and acted upon with utmost respect. The learned counsel then by referring to various Articles of the Constitution in general and Article 175-A in particular contended that mode and manner of appointing Judges of the superior Courts has undergone a change and that the whole process from the inception to the last is now regulated by the latter. The learned counsel argued that once Judicial Commission has nominated a person, the Parliamentary Committee after having confirmed his name has sent it to the Prime Minister and the Prime Minister has forwarded it to the President for appointment, the President will have no choice but to appoint him. While commenting on the mode and manner of appointment of Judges and things ancillary thereto, the learned counsel submitted that an exhaustive exercise has been taken in the cases of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others" (supra), and "Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another" (supra), therefore, yet another exercise is hardly called for. The learned counsel, however, submitted that the principle and practice of appointing most Senior Judge as Chief Justice is not open to any dispute and thus cannot be departed from without reasons to be recorded as held in the case "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v.

Federation of Pakistan and others" (supra). The President or for that matter any other person performing in the affairs of Federation, the learned counsel submitted, is duty bound to protect the Constitution and that the instant reference appears to be an effort in this behalf. When asked, whether the President shall appoint a person a Judge of the Supreme Court, if he does not fulfil the requirements laid down by Article 177(2) or a Judge of a High Court if he does not fulfil the requirements laid down by Article 193 of the Constitution, notwithstanding Clause 13 of Article 175-A of the Constitution, the learned counsel readily replied in No, But when asked, how a deadlock occasioning due to refusal of the President to appoint a person nominated, who does not fulfil the requirements laid down by the Articles mentioned above, would be brought to an end especially when the President in view of the provision contained in Article 175-A cannot send the nomination back to the Commission for reconsideration, the learned counsel could not give any satisfactory reply.

8. Khawaja Haris Ahmed, Senior Advocate Supreme Court who was also asked to assist the Court as Amicus Curiae, highlighted the salient features of his written submissions. He by referring to Article 175-A of the Constitution submitted that the role of the President in appointment of Judges, is more or less ministerial when the Judicial Commission has nominated a person, the Parliamentary Committee after having confirmed his name has sent it to the Prime Minister and the Prime Minister has forwarded it to the President for appointment. He by referring to the judgment rendered in the case of "Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another" (supra), submitted that where almost all of the questions raised in the reference have been answered in the judgment, it would be just futile to rehear the same.

9. With regard to the question relating to seniority, the learned counsel submitted that the same being person specific is not one of law, therefore, this Court cannot afford to decide such question in its advisory jurisdiction. The learned counsel next contended that omission to mention the expression most senior Judge in the provision relating to appointment of Chief Justice of a High Court is significant and that in the absence of any express provision even the most senior Judge cannot have legitimate expectancy, as the Constitution on this score has remained the same even after the dictum laid down in the case of "AlJehad Trust through Raeesul Mujahideen Habib-ul- Wahabb-ul-Khairi and others v. Federation of Pakistan and others" (supra).

10. I have gone through the relevant record carefully and considered the submissions made by the learned counsel for the parties as well as amicus curiae.

11. Before I discuss the arguments addressed at the bar by the learned counsel and answer the questions raised in the reference and the petition, it is worthwhile to mention that the mode and manner of appointing Judges underwent a radical change after Eighteenth and Nineteenth Amendments of the Constitution. Almost all the process of appointing Judges, Chief Justices of the High Courts, the Federal Shariat Court and Judges of the Supreme Court has been capsuled in Article 175-A of the Constitution. A reference to the said Article would, therefore, be relevant which reads as under:-- "175-A, (1). There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.

(2) For appointment of Judges of the Supreme Court, the-Commission shall consist of ---

(i) Chief Justice of Pakistan.

(ii) (four) most senior Judges of the Supreme Court;

(iii) a former Chief Justice .Or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the (four) member Judges, for a term of two years;

(iv) Federal Minister for Law and Justice;

(v) Attorney-General for Pakistan; and

(vi) a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two yeaRs,

(3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.

(4) The Commission may make rules regulating its procedure.

(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:----

(i) Chief Justice of the High Court to which the appointment is being made;

(ii) the most senior Judge of that High Court;

(iii) Provincial Minister for Law; and

(iv) an advocate having not less than fifteen years practice in the High Court to be nominated by the concerned Bar Council for a term of two years; ' Provided that for appointment of the Chief Justice of a High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission: ' Provided further that if for any reason the Chief Justice of High Court is not available, he shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the four member Judges of the Commission mentioned in paragraph (ii) of clause (2)].

(6) For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:----

(i) Chief Justice of the Islamabad High Court; Member and

(ii) the most senior Judge of that High Court; ' Provided that for initial appointment of the [Chief Justice and the] Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission: ' Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its member: ' Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos, to clause (5) shall, mutatis mutandis, apply.

(8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be.

(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:----

(i) four members from the Senate; and

(ii) four members from the National Assembly [:] [Provided that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this Article shall, mutatis mutandis, apply].

(10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition.

(11) Secretary, Senate shall act as the Secretary of the Committee.

(12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority %f its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed: [Provided that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period:] [Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister: [Provided further that if a nomination is not confirmed, the Commission shall send another nomination.] [(13) The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment.]

(14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.

(15) The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained.

(16) The provisions of Article 68 shall not apply to the proceedings of the Committee.] [(17) The Committee may make rules for regulating its procedure.]"

12. A look at the above quoted provision would reveal that it prescribed the mode and manner as to how the Judicial Commission shall proceed to nominate a person for appointment as a Judge or Chief Justice of a High Court, the Federal Shariat Court or a Judge of the Supreme Court and how the Parliamentary Committee would look at such nomination while confirming or refusing to confirm it. Who is eligible to be appointed as a Judge or Chief Justice of a High Court, the Federal Shariat Court or a Judge of the Supreme Court and whether the person sought to be nominated possesses the caliber, capacity and conduct befitting the slot, are the questions to be considered by the tiers listed in the provision ,mentioned above. Once a person is nominated by the Judicial Commission his name, will go to the. Parliamentary Committee. The Parliamentary Committee may confirm such nomination by majority of its total membership within fourteen days. If it fails to confirm a nomination within fourteen days it shall be deemed to have been confirmed. It may refuse to confirm a nomination by 3/4th and send it back to the Commission through the Prime Minister for reconsideration but after recording reasons therefor. The Commission shall, then, send another nomination. The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment.

13. Now the questions arise what is nomination in its pith and substance; whether it can be treated as an advice to the President and if so whether it can be returned for reconsideration to the source it has originated from or processed through. Before I answer these questions, a careful look at Article 48 of the Constitution would be quite advantageous. It, thus, reads as under:-- "President to act on advice, etc. [48. (1) In the exercise of his functions, the President shall act [on and] in accordance with the advice of the Cabinet [or the Prime Minister]: [Provided that [within fifteen days] the President may require the Cabinet or, as the case may be the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall [, within ten days,] act in accordance with the advice tendered after such reconsideration.]

(2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so [and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever].

(3) Clause (3) omitted.

(4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority.

(5) Where the President dissolves the 'National Assembly, notwithstanding anything contained in clause (1), he shall,--

(a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to a Assembly; and

(b) appoint a care-taker Cabinet [in accordance with the provisions of Article 224 or, as the case may be, Article 224A]] [(6) If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered by either --- Yes" or --- Not.]

(7) An Act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum.]

14. A bare reading of this Article would reveal that the President in the exercise of his functions shall act in accordance with the advice of the Cabinet or the Prime Minister. The President in view of the proviso to Article 48(1) has the power to require the Cabinet or the Prime Minister as the case may be, to reconsider such advice generally or otherwise. Similarly, the President, in view of the provision contained in Article 75 of the Constitution, has the power to return a bill, other than a money bill, presented to him for his assent, for reconsideration. A nomination originating from the Commission, confirmed by the Committee is also an advice in its pith and substance inasmuch as it is forwarded by the Prime Minister to the President for being acted upon. But since it originates from the Commission in terms of Article 175-A of the Constitution, it is not an advice in terms of Article 48 of the 'Constitution. Nor is it open to the incidence of return for reconsideration because Article 175- A of the Constitution does envision any such thing. This omission appears to be deliberate and purposeful. For whatever power the President had before Eighteenth and Nineteenth Amendments, including the power to return a nomination for reconsideration to the source it has originated from, has now been conferred on the Parliamentary Committee. If a power requiring the Prime Minister or the Cabinet to reconsider an advice, under Article 48, or a power requiring the Parliament to reconsider a bill, under Article 75 of the Constitution, has been conferred on the President, a power requiring the Commission or the Parliamentary Committee, to reconsider a nomination, too, could have been conferred on him, but it has not been conferred. When it has not been conferred, I am bound to take the Constitutional provisions as they are. A Casus Omissus can, in no case, be supplied by the Court of law as that would amount to altering the provision. "It is not our function, as was held by Mr. Justice Walsh, in the case of "Attorney-General v. Bihari, re Australia Factors Limited (1966) 67 S.R. (N. S. W) 150; to repair the blunders that are to be found in the legislation".

They must be corrected by the legislator". A Court of law is not entitled to read words into the Constitution or an Act of Parliament unless clear reason is found within the four corners of either of them. Yes, the President can act in the exercise of his discretionary powers under Article 48(2) of the Constitution but the areas of such powers are well defined and well marked. He cannot return a nomination for reconsideration even under the garb of his discretionary power when it in its origin and specie is not an advice in terms of Article 48(1) of the Constitution. I, therefore, hold that the President has no power to return a nomination to any of the tiers it has passed from, even if it is violative of the Constitution or the law. But at any rate the President shall not H appoint a person a Judge of the Supreme Court or a Judge or Chief Justice of a High Court as the case may be, whose nomination, in his. I opinion, is against the Constitution and the law. For the Constitution which makes obedience to the Constitution and the law the inviolable obligation of every citizen would never ever require a person no less than the President to do something against the Constitution and the law. Nor would his oath of office, which requires him to discharge his duties and perform his functions in accordance with the Constitution and the law, permit him to do any such thing.

Reference may well be made to Articles 177 and 193 of the Constitution and Oath of the President which read as under:-- "Article 177: Appointment of Supreme Court Judges.

[(1) The Chief Justice of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President in accordance with Article 175A.]

(2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and-

(a) has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b) has for a period of, or for periods aggregating, not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day)".

"Article: 193: Appointment of High Court Judges [(1) The Chief Justice and each of other Judges of a High Court shall be appointed by the President in accordance with Article 175A.]

(2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than [forty-five] years of age, and -

(a) he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b) he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or

(c) he has, for a period of not less than ten years, held a judicial office in Pakistan.

[Explanation.- In computing the period during which a person has been an advocate of a High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.)"

' And "OATHS OF OFFICE ' President [Article 421 (In the name of Allah, the most Beneficent, the most Merciful.) -------------- do solemnly swear that I am a Muslim and believe in the Unity and Oneness of Almighty Allah, the Books of Allah, the Holy Quran being the last of them, the Prophethood of Muhammad (peace be upon him) as the last of the Prophets and that there can be no Prophet after him, the Day of Judgment, and all the requirements and teachings of the Holy Quran and Sunnah: ' That I will bear true faith and allegiance to Pakistan: ' That, as President of Pakistan, I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan: ' That I will not allow my personal interest to influence my official conduct or my official decisions: ' That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan: ' That, in all circumstances, I will do right to all manner of people, according to law, without fear or favor, affection or ' And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as President of Pakistan, except as may be required for the due discharge of my duties as President.

[May Allah Almighty help and guide me (A'meen)]"

15. The above quoted provisions of the Constitution as well as the oath of his office would show that the President before appointing a person, a Judge or a Chief Justice of a High Court or a Judge of the Supreme Court shall ensure that his nomination is in accordance with the Constitution and the law. He shall not appoint a person, a Judge or a Chief Justice of a High Court or a Judge of Supreme Court, if his nomination does not conform to the Constitution and the law. Especially when there is no provision in Article 175-A of the Constitution, in para materia with that of Article 48 requiring the President to do the needful within ten days, or a deeming provision in para materia with that of Article 75 of the Constitution requiring the President to do the needful within ten days failing which the needful shall be deemed to have been done. A deadlock, would inevitably be the consequence as the President can neither return the nomination to the source it has originated from or processed through nor can he appoint the person, thus nominated. As the deadlock revolves around the constitutionality, legality or otherwise of the nomination recourse to an advisory or adjudicatory jurisdiction of this Court would be the only way out. If the Court upholds the opinion of the President, the Commission 'shall initiate proceedings de novo in accordance with the opinion of the Court. If it does not, the President shall appoint the person nominated accordingly.

16. Who is senior, what is the criterion for determining seniority amongst the Judges elevated on the same day and what is the way of deciding about the most senior Judge for appointment as Chief Justice? Answers to these questions have been provided in the letter of Law Department dated 30- 4-1987 which reads as under:-- "No,F,12 (5) 186-All, Dated: 30-4-1987.

GOVERNMENT OF PAKISTAN MINISTRY OF JUSTICE AND PARLIAMENTARY AFFAIRS (JUSTICE DIVISION)

SUBJECT: SENIORITY LIST OF HIGH COURT JUDGES My dear Chief Justice, Please refer to the correspondence resting with High Court of Sindh letter No, Gaz-IV, Z. 14(1) dated the 30th March, 1987, on the subject noted above.

(2) An equitable principle consistently adopted in this regard is that Judges whose appointments are made by a single order, take seniority according to age. If the appointment of two or more service candidates is also simultaneously made with that of candidate from the Bar, the service Judges will retain their existing seniority in the department regardless of their age which of course would be the determining factor in respect of their seniority vis-a-vis candidates from the Bar. This principle has the approval of the President.

(3) I am to request you to please confirm whether the seniority list of Sindh High Court Judges has been prepared in the light of the above principle. With kind regards. Yours sincerely, Sd/- (Irshad Hassan Khan)"

17. A perusal of the letter reproduced above leaves no doubt that the established practice and the time honoured yardstick for determining seniority amongst the Judges of a High Court, elevated on the same day, is seniority in age except in the case of Judges from service whose inter se seniority remains intact even on their elevation irrespective of their age. This principle has been consistently followed hitherto without exception ever since the establishment of the High Courts in the Indian Subcontinent and also after its partition. This principle even otherwise merits respect and reverence because it not only rules out personal whim and caprice of the person at one peak or another and shuts doors and windows for manipulation at ministerial level but also creates an environment which is conducive for the rule of law, supremacy of the Constitution and independence of Judiciary. This principle being too clear and conspicuous cannot be disputed. At times it has been departed from but that was only when there was something concrete against the Judge. This is what was laid down in the case of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others" (supra). The relevant paragraph would be germane to the case in hand which reads as under:-- "It is true that in Article 193 of the Constitution which relates to inter alia to the appointment of a Chief Justice in a High Court, it has not been, provided that most of the senior of Judges shall be made as the Chief Justice. The reason seems to be obvious, . Namely, it is possible that the senior most Judge, at the relevant time, may not be physically capable to take over the burden of the office or that he may not be willing to take upon himself the above responsibility. The Chief Justice of Pakistan, who is one of the consultees under Article 193 will be having expertise knowledge about the senior most Judges of a High Court. If the senior most Judge is bypassed for any of the above reasons, he cannot have any grievance but if he is superseded for extraneous considerations, the exercise of power under Article 193 of the Constitution will not be in accordance therewith and will be questionable.

' I am, therefore, of the view that keeping in view the provisions of the Constitution as a whole and the well-established convention as to the appointment of the senior most Judges in the High Court as the Chief Justice followed consistently in conjunction with the Islamic concept of 'Urf'. The most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.

' Before parting with the discussion on the above question, I may observe that there seems to be wisdom in following the convention of seniority. If every Judge in a High Court aspires to become Chief Justice for the reason that he knows that seniority rule is not to be followed, it will adversely affect the independence of judiciary. The junior most Judges may feel that by having good terms with the Government in power he can become the Chief Justice. This will destroy the institution and public confidence in it. The Chief Justices of the High Courts have the power to fix the roster i,e, to decide when a case is to be fixed and before whom it is to be fixed. In other words, they regulate the working of the forum. It is, therefore, very important that the Chief Justices should not be pliable and they should act independently".

' The word "Urf" used in the above quoted paragraph is of tremendous significance which means commonly known, commonly received and commonly approved of. This principle was reiterated in the case of "Malik Asad Ali and others v. Federation of Pakistan and others" (PLD 1998 SC 33), the relevant paragraph for the facility of reference is reproduced as under:-- "6. This Court in case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 while interpreting the provisions of Article 193 of the Constitution, relating to the appointment of Chief Justice of a Provincial High Court, on the basis of convention followed in this behalf held, that the senior most Judge of the High Court, in the absence of any concrete and valid reason has to be appointed as the Chief Justice of the High Court. We are of the view that the above rationale laid down by this Court for appointment of the Chief Justice of High Court applied with greater force in the case of appointment of Chief Justice of Pakistan under Article 177 of the Constitution, in view of the more consistent practice and convention followed in this regard for appointment of Chief Justice of Pakistan in the past and especially in view of the provisions contained in Article 180 of the Constitution which recognizes the principle of seniority as the sole criteria for appointment of Acting Chief Justice of Pakistan."

' This Court in the case of "Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another" (supra) while reaffirming the dicta laid down in the cases of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others"

(supra) and "Malik Asad Ali and others v. Federation of Pakistan and others" (supra) held as under:- - "31. At this stage, it would also be appropriate for us to note that the contention of the AAG that earlier judgments on the issue of appointment of Judges are irrelevant is a bit misconceived. The change in the appointment process has merely diversified decision making amongst the many members of the two new collegiate bodies, but essentially the roles of these bodies, looked at collectively, remains the same. So as such the principles of law enunciated in earlier judgments such as AlJehad Trust case, Malik Asad Ali and several others would continue to apply to the new mechanism with full force. In face, these principles can be said to be applicable even more strongly after the introduction of the newly constituted bodies under Article I75-A."

' It, irresistibly, follows that this principle, practice or convention, whatever one may like to call it, besides being esteemed, honoured and upheld throughout has also been blessed with the approval of this Court in the judgments cited above. It is now a declared law of the land to all intents and purposes. I, therefore, do not see any reason much less tenable warranting any deviation therefrom.

18. Yet another provision contained in the first proviso to Clause 5(iv) of Article 175-A of the Constitution, which provides that for appointment of the Chief justice of a High Court the most senior Judge mentioned in Clause 5(ii) of the Article shall not be member of the Commission, unmistakably indicates that it has all along been taken for granted that it is the most senior Judge of the High Court who shall be nominated as Chief Justice in the absence of any valid reason.

Otherwise, it would have been provided in the aforesaid clause that the Judge whose nomination for appointment as Chief Justice is in the offing shall not be member of the Commission. Therefore, the argument advanced by Kh. Haris Ahmed, learned Senior Advocate Supreme Court that the Constitutional provisions on this score have remained the same even after the dictum laid down in the case of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v.

Federation of Pakistan and others" (supra) is without force. I am, therefore of the opinion, that Mr. Justice Riaz Ahmed Khan, being the most senior Judge of the High Court has a legitimate expectancy to be appointed as Chief Justice and that subject to any valid reason which is yet to be recorded by the Commission, he would be entitled to be appointed as such.

19. Next question in the sequence is as to who determines seniority amongst the Judges appointed on the same day? Again the answer can be found in the long standing practice. It is the Chief Justice of the respective High Court who determines inter se seniority of the Judges in the light of the principle mentioned above. It is, then, the Judicial Commission nominating the most Senior Judge for appointment as Chief Justice, which determines inter se seniority of the Judges so elevated. The President in this scheme does not figure anywhere. It is, however, a 0 fact well worth remarking that seniority in this case has been determined by the Chief Justice of the Islamabad High Court and that Mr. Justice Riaz Ahmed Khan being senior in age has already been declared the most senior Judge of the High Court. Needless to say that settling the principle underlying the determination of a question can never become person specific.

20. Then comes the question as to whether the well establishes principle underlying the determination of inter se seniority amongst the Judges has been departed from by the Commission on correct premises. Reference has been made to a paragraph from the judgment rendered in the case of "Federation of Pakistan v. Sindh High Court Bar Association through its President" (CPLA No, 1390 of 2012) (supra) which runs as under:- ' It is for this reason that in number of judgments of the apex Court, out of which two have been referred to above, in service matters, concept of reinstatement into service with original seniority and back benefits has been developed and followed on case to case basis to give complete relief to an aggrieved party. Following the same equitable principle, while passing our short order, we have specifically mentioned that the issuance of notification for permanent appointment of the two Judges shall .Have its effect from 17-9-2011 when four other recommendees of the Commission in the same batch were notified after clearance by the Committee, so that they shall have their respective seniority and all other benefits as permanent judges of the High Court".

' But a careful reading of the above quoted paragraph would reveal that it has not judicially laid down any criterion for determining, inter se seniority among the Judges appointed on the same day. Nor has it justified a deviation from the recognized course. It when read with reference to the context, deals with a situation different altogether. No such question was involved in that case, nor has it been decided as such. It would thus be ominous to draw a parallel between this case and that case or to treat them alike. I, therefore, have no hesitation to hold that the premises recorded by the Commission for departing from the well established principle of determining seniority are not correct.

21. The next question emerging for the consideration of this Court on its advisory as well as adjudicatory side is whether the Judicial Commission in this case was properly constituted in the absence of a persona designata and whether the presence or participation of a person, who was a non-entity in the Commission, could vitiate the nomination for the appointment of Mr. Justice Shaukat Aziz Siddiqui and extension of Mr. Justice Noor-ul-Haq Qureshi? Answers to these questions are simple and straightforward. Accepting that Mr. Justice Riaz Ahmed Khan being the most Senior Judge was required to attend the meeting of the Commission but his failure to do so for any reason, would not vitiate the proceedings of the Commission. For clause 14 of Article 175-A of the Constitution clearly provides that no action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof. Accepting that Mr. Justice Muhammad Anwar Khan Kasi being a non-entity sat, voted and took part in the proceedings culminating in the nomination of the Judges mentioned above, yet it would not vitiate the proceedings when the Judicial Commission, in view of Clause 8 of Article 175-A of the Constitution, has nominated the Judges by majority of its total membership. It would have vitiated or materially affected the proceedings of the Commission if it had nominated the Judges for appointment and extension with a margin of one. But where the Commission nominated the Judges by majority of 7 against 2, the presence or participation of Mr. Justice Muhammad Anwar Khan Kasi in the meeting would not be of any consequence. The case of "Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others" (supra) may well be referred to in this behalf wherein it was held as under:-- "Perusal of subsection (1) of section 3-A of the Act, 1973 reveals that "minimum strength of a Bench to exercise or perform functions of the Tribunal is two Members, including the Chairman, meaning thereby that while conducting hearing the status of a Chairman is also of a Member. Whereas under clause (a) of section 3-A(2), decisions are to be pronounced by the majority of the MembeRs, Clause (b) of section 3-A(2) further provides that in case of division between Members of the Bench or in case of equal division of the Members, the case shall be referred to the Chairman and whatever opinion is expressed by him, would have supremacy and constitute the decision of the Tribunal. In this case impugned judgment has been authored by the Chairman and all the Members have concurred with him, therefore, presuming that Mr. Aftab Ahmed joined proceedings without lawful authority but nevertheless impugned judgment can sustain, as it has been rendered by the Bench comprising of more than two Members of the Service Tribunal and apprehension of influencing the judgment by Mr. Aftab Ahmed (Retired Member) stands excluded as it was authored by a former Judge of High Court being the Chairman of the Service Tribunal."

22. The principle enunciated in the aforesaid judgment is not alien or extraneous, on any account, to our jurisprudence. It has also been recognized by Article 67 of the Constitution, which does not allow a proceedings of the House to become invalid simply because a person who was not entitled to sit, vote or otherwise take part in the proceedings, sat, voted or took part therein. The case of "Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte (No,2), therefore, has no relevance to the case in hand.

23. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court also referred to Establishment Manual but could not cite any clear and definite provision of law, rule or convention as could justify a deviation tom the course which has been consistently followed till date. He failed to refer to any precedent much less relevant to support his stance. He also failed to bring anything exceptional, extraordinary or outstanding in our notice as could dilute, diminish or discount the binding force of the said principle. Even otherwise, I would not approve substitution or replacement of a principle which has unquestionably been accepted and acted upon throughout.

24. The argument addressed by the learned Attorney-General on the strength of "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others" (supra) that if this Court annulled the appointment of many Judges for want of recommendation of the consultee, the nomination originating from the Judicial Commission which was not properly constituted has to be given alike treatment is wholly misconceived inasmuch as the status of the Chief Justice of Pakistan before the amendments has been brought at par with the status of a member after the amendments without appreciating that the Chief Justice of Pakistan before such amendments was the chief consultee. Even after the amendments he being the Chairman of the Commission is not only the chief consultee but no meeting of the Commission can be held in his absence. Whereas absence of any other member or vacancy in view of clause 14 of Article 175-A of the Constitution is of no consequence whatever.

25. The argument of the learned counsel for the President that such nomination would be all the more without any legal or constitutional sanctity when the proceedings before the Commission were not conducted in the manner prescribed by the Constitution is also devoid of force as this provision for want of envisaging the consequence of failure or neglect to comply therewith cannot be treated as mandatory.

26. The argument that the proceedings in the Judicial Commission could not be held in camera when the legislature purposely provided otherwise so as to ensure complete transparency and open scrutiny appears to be ornamental as its members not only represent all the essential segments of the Bar and Bench but also those of the Federation and the Province through Attorney-General for Pakistan, Minister for Law and Justice of the Federation and Minister for Law of the Province. The scrutiny is open in the truest sense of the word when each member is at liberty to present his point of view one way or the other. Transparency in the proceedings cannot be affected by holding it in camera if every member consciously and conscientiously gives his input in the nomination, keeping in view its overall impact on the Institution on the one hand and society at large on the other. I do not understand what does the learned counsel for the President want to project by using the expressions "complete transparency and open scrutiny". If he by using these expressions wants the inclusion and intrusion of all and sundry, I am afraid, he is far off the lines drawn by the Constitution. It was in view of this backdrop, that the Judicial Commission while framing the rules in exercise of the powers conferred on it under clause 4 of Article 175-A of the Constitution provided for holding the proceedings in camera.

27. Question relating to criterion for elevating a Judge or Chief Justice of a High Court to the Supreme Court has been fully answered by Article 177 of the Constitution reproduced above. I, therefore, would not like to add anything thereto. The more so when the convention followed thus far is also in conformity with the letter and spirit of the Article mentioned above.

28. Having thus considered, I answer the questions raised in the reference accordingly. The detailed reasons for the Short Order dated 21-12-2012 in, the Constitution Petition No,126 of 2012 are also included in the Judgment.

29. While parting of the judgment, we would appreciate the enlightened assistance rendered by Mr. Makhdoom Ali Khan and Khawaja Haris Ahmed, learned Senior Advocates Supreme Court.