LAL JAN KHA TTAK. J.--Petitioner's prayer in the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is as under:-- "It is, therefore, most humbly prayed that on acceptance of this petition may the High Court be pleased to:-- a) Declare that the decision of the Parliam entary Committee whereby recommenda tions of the Judicial Commission of Pakistan in respect of petitioner were rejected are not in accordance with the provision of Constitution, therefore, void. b) Declare that Parliamentary Committee constituted under clause (9) of Article 175-A of the Constitution cannot sit in appeal, revision or review over the recommendations of the Judicial Commission in respect of competency , caliber and integrity , of an Advocate of the Supreme Court of Pakistan. c) Declare that for determining the competence, caliber and integrity of recommendee for appointment as Additional Judge of the High Court Chief Justice of the concerned High Court and that of Judicial Commission of Pakistan have the exclusive jurisdiction and powers which cannot be shared by any Parliamentary Committee by whatsoever name. d) Declare that the decision of the Parliamentary Committee dated 08.07.2019 sent to the Secretary Judicial Commission of Pakistan by Secretary to the Prime Minister on 16.07.2019 is illegal, improper in excess of lawful authority and jurisdiction and therefore of no legarconsequence, the same be set aside. e) Appropriate directions be issued to the Federal Government that by accepting recommendations of the Judicial Commission of Pakistan dated 02.07.2019, the name of petitioner be recommend ed to the President of Pakistan for appointment as Additional Judge of Peshawar High Court for one year as recommended by Judicial Commission with such other relief as may be deemed proper ."
2. Brief facts of the case are that the Judicial Commission of Pakistan (hereinafter to be referred as the Commission), constituted under Article 175-A of the Constitution, in its meeting held on 02.07.2019 recommended the petitioner and four others for their appointments as Additional Judges of this court and sent its recommendations to the Parliamentary Committee for confirmation. On receipt of the nominations, the Parliamentary Committee (hereinafter to be referred as the Committee) in its meeting held on 08.07.2019 only confirmed the nominations of the four nominees and sent their names to the Prime Minister for further necessary action whereas nomination of the petitioner was rejected and as a result his case Was forwarded to the Commission through the office of Prime Minister in terms of 2nd proviso to clause (12) of Article 175-A of the Constitution. Being aggrieved of the decision of the Committee, petitioner has impugned the same through the instant petition with prayer reproduced hereinabove.
3. Learned counsel for the petitioner argued that once the petitioner was nominated by the Commission for his appointment as an Additional Judge of the High Court, then, on no count, the Com mittee could set to re-examine and review the nomination of the Commission or to disagree with it. The learned counsel further argued that before nominating the petitioner as an Additional Judge, the Commission had examined his legal and professional skill, legal acumen, intelligence and capability in depth and that after such thorough and comprehensive discussion and consideration, the Committee could not take a view different than the one taken by the Commission. In support of their arguments, learned counsel for the petitioner relied upon PLD 2012 SC 1067 , PLD 2011 SC 407 and PLD 2010 SC 1 165.
4. As against the above, learned counsel for the respondents supported the decision of the Committee. They submitted at the bar that the petitioner was not an aggrieved person in terms of Article 199 of the Constitution as none of his fundamental rights enshrine d in the Constitution had been infringed and that no person can claim issuance of a writ under the Constitution for direction to the Federal Government to appoint him as a Judge of High Court. Learned counsel for the responden ts relied upon PLD 2007 SC 52, PLD 2010 SC 1165 and PLD 2011 SC 407.
5. We have heard arguments of learned counsel for the parties and gone through the available record.
6. Undisputedly , the petitioner , along with four others, was recommended for his appointment as an Additional Judge of Peshawar High Court by the Commission whereafter his nomination was sent to the Committee for confirmation, however , the Committee confirmed the four nominations but did not. do so qua the petitioner on the ground that his financial status was not above board, had compromising attitude, professionally incompetent and for his violation of rules and regulations. After reaching at its decision unanimously , the Committee then forwarded its such decision to the Commission through the office of Prime Minister in terms of 2nd proviso to clause (12) of Article 175-A of the Constitution.
7. Core point for discussion and decision in the instant case is whether the Commission's nomination can be rejected by the Committee? Answer to the above lies in the 1st proviso to clause (12) of Article 175-A of the Constitution which for ready reference is reproduced hereinbelow:-- "Provided that the Committee may not confirm the nomination by three-fourth majority of its total membership within the said period."
8. So in view of the afore-cited proviso, the Committee is empowered not to confirm the nomination so sent to it by the Commission. However , discretion of the Committee not to confirm the Commission's nomination is subject to the condition that for non-confirmation it has to give reasons. Once the Commission's nomination is not confirmed by the Committee with reasons, then its job is over whereafter the matter will come back to the Commission in terms of the 2nd proviso to clause (12) of Article 175-A of the Constitution, which too is reproduced hereinbelow for ready reference,- "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"
9. After acting under the 1st and the 2nd provisos, the Committee becomes functus officio whereafter the Commission again will take up its nomination in terms of the 3rd proviso to clause (12) of Article 175-A and if this time the Commission confirms its earlier nomination, which was not confirmed by the Committee, then such confirmation will be sent straight to the President for issuance of formal notification of appointment of the recommended. For the purpose of conve nience and reference, 3rd proviso to clause (12) of Article 175-A is also reproduced, which is as under:- "Provided further that if a nomination is not confirmed, the Commission shall send another nomination"
10. The 3rd proviso, mentioned above, has increased the Commission's powers more than what are given to it under clause (8) to Article 175-A, whereunder it is empowered only to nominate a person to the Committee for his appointment as a Judge but when its nomination comes back to it from the Committee through the Prime Minister after its having not been confirmed, then in such like scenario, the Commission acts not only as a recommendatory body but as a confirmatory body too and in case it confirms its earlier nomination, then it will send its confirmation directly to the President for issuance of the appointment order . It is further provid ed in the 3rd proviso that if the Commission does not confirm its nomination, then in that eventuality , it will send another nomination to the Committee.
11. For the above discussion, we are of the humble view that while rejecting the petitioner's nomination and sending its decision to the Commission, the Committee has acted within its constitutional mandate to which no exception could be taken by this court but so far its findings on the petitioners professional competence and compromising attitude, as mentioned in its decision, are concerned, suffice it to say that same are far beyond its mandate. It is worth to mention that in the case of Munir Hussain Bhatti, Advocate v. Federation of Pakistan and another (PLD 201 1 SC 407 ), it was held by their lordships as under:- "22. The constitution of the Judicial Commission itself and the members comprising five sitting judges of the Supreme Court, one former judge of Supreme Court, the Chief Justice and the most senior Judge of the High Court, Federal Minister for Law. and Attorney General of Pakistan, Law Minister of the concerned province and two senior advocates/members of the Bar, gives us a clear insight into the reasons for the creation of the Commission.
It comprises of people having an immense background and stature in the field of law and the judicial system. The purpose then was that the discretion in making judicial appointments should not be the forte of one man, as in the old system, but should rather .be devolved to a body comprised of people who could be trusted, to make a just evaluation on the professional caliber , legal acumen, judicial skill and all other related criteria relevant for the appointment of a person as a judge of the High Court. We are thus unable to see how the technical expertise, judged by a Commission comprising of people having spent decades in the legal field, could be better judged, or worse, reversed by the Parliamentary Committee. If this was intended by the legislature then there was simply no need to even constitute a Judicial Commission."
12. In light of the above referred judgment, findings of the Committee regarding the petitioner's professional skill and competence are beyond its constitut ional mandate, therefore, same cannot be countenanced, hence we are constrained to expunge such findings of the Committee from its decision.
13. Upshot of the above discussion is that findings of the Committee regarding the petitioners incompetency and lack of professionalism Are hereby expunged from its decision whereas its decision qua sending the petitioners case to the Commission for its confirmation or otherwise in terms of the 2nd proviso to clause (12) of Article 175-A of the Constitution is maintained. Secretary of the Commission shall place the petitioner's case before the Commission in terms of the 3rd provision cited above.