The appellant considering Rule 3(2) of the Judicial Commission of Pakistan Rules, 2010 as ultra vires to the provisions of the Constitution of the Islamic Republic of Pakistan, 1973, filed constitutional petition (Writ Petition No.5366 of 2019), with the following prayer:- "It is, therefore, respectfully prayed that Rule 3(2) of the Judicial Commission Rules, 2010 which provides for nomination to the posts of judges of the High Courts is violative of Article 25, 2-A, 193(2)(a) and all appointments made without calling for applications, without written examination and interview is wholly arbitrary and nepotistic based on personal likes and dislikes of the Chief Justice are void in view of Article 8 of the Constitution being inconsistent with Fundamental Right enshrined in Article 25 of the Constitution.
It is further prayed that all appointments to be made in future be not made without inviting applications, written examination and interview and as they do in Central Superior Services examinations."
2. The constitutional petition was placed before the learned Single Judge in Chamber , who proceeded to dismiss the same through order dated 18.02.2021, which is now assailed in the instant appeal under Section 3 of the Law Reforms Ordinance, 1972.
3. It is contended that Rule 3(2) of the Judicial Commission of Pakistan Rules, 2010 is violative of Articles 2-A, 25 and 193(2)(a) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred as "Constitution").
Added that in terms of Article 193 of the "Constitution", every Advocate of a High Court is eligible to become Judge of the High Court, if he has practiced for a period not less than ten years. It is contended that all appointments made without calling for applications, written examination and interview are wholly arbitrary and void in terms of Article 8 of the "Constitution". It is submitted that the Rules ought to provide a mechanism for inviting applications from the contesting candidates and the appointments should be made on the basis of written examination and interview .
4. After having heard the appellant, we have perused the record.
5. Article 175A of the "Constitution" provides a mechanism for appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court. This provision was inserted in the "Constitution" through Eighteenth Amendment Act (X of 2010). Prior to the insertion of Article 175A in the "Constit ution", the appointment of High Court Judges was to be made in terms of Article 193 of the "Constitution", which reads as under:- "193. Appointment of High Court Judges. (1) A Judge of a High Court shall be appointed by the President after consultation-
(a) with the Chief Justice of Pakistan;
(b) with the Governor concerned; and
(c) except where the appointment is that of Chief Justice, with Chief Justice of the High Court.
6. In order to streamline and to make the process of appointments of Judges in the superior judiciary more transparent, the Legislature through Eighteenth Amendment brought Article 175A in the "Constitution", whereby Judicial Commission of Pakistan and Parliamentary Committee has been created. Article 175A of the "Constitution" is reproduced below for ready reference and convenience:- "(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; Chairman
(ii) [four] most senior Judges of the Supreme Court;Members
(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;Member
(iv) Federal Minister for Law and Justice; Member
(v) Attorney-General for Pakistan; and Member
(vi) a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years.Member
(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;Member
(ii) the most senior Judge of that High Court; Member
(iii) Provincial Minister for Law; and Member
(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:]Member [Provided that for appointment of the Chief Justice of a High Court, the most senio r Judge mentioned in paragraph
(ii) shall not be member of the Commission: Provided further that if for any reason the Chief Justice of a 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: Member 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 members: 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 of 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 With the insertion of Article 175A ibid, a corresponding amendment to this effect was also made in Article 193 of the "Constitution", which now reads as under:- "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.]
7. In order to regulate its procedure, the Judicial Commission made the Judicial Commission of Pakistan Rules, 2010 (hereinafter referred as "Rules 2010") in exercise of powers conferred by Clause (4) of Article 175A of the "Constitution". Rule 3 of the "Rules 2010" provides the procedure for nominations for appointments in the following manner:- "3. Nominations for Appointments.-- (1) For each anticipated or actual vacancy of a Judge in the Supreme Court or the Chief Justice of Federal Shariat Court or the Chief Justice of a High Court, the Chief Justice of Pakistan shall initiate nominations in the Commission for appointment against such vacancy .
(2) For each anticipated or actual vacancy of a Judge in the Federal Shariat Court or Judge in the High Court, the Chief Justice of the respective Court shall initiate and send nomination for appointment against such vacancy to the Chairman for convening meeting of the Commission."
In addition to the above, Rule 5 of the "Rules 2010" provides the manner of proceedings of the Commission, which reads as under:- "5. Proceedings of the Commission.--- (1) Whenever a nomination is received under Rule 3, the Chairman shall call a meeting of the Commission on a date, time and place determined by him and notified by the Secretary to each member .
(2). The Commission may call for any information or record required by it from any person or authority for the purposes of carrying out its functions.
(3) The Secretary shall forward the nominations made by the Commission to the Secretary of the Parliamentary Committee constituted under clause (9) of Article 175A of the Constitution.
(4) The proceedings of the Commission shall be held in camera. A record of the proceedings shall be prepared and maintained by the Secretary duly certified by the Chairman under his hand".
8. It is though one of the contentions of the appellant that Rule 3(2) is ultra vires to the "Constitution", but despite all his earnest efforts, he has failed to substantiate his argument to this effect. Sub- clause (8) of Article 175A of the "Constitution" prescribes that the Commission by majority of its total memb ership shall nominate to the Parliamentary Committee one person for each vacancy of a Judge in the superior judiciary; whereafter the Parliamentary Committee shall also delve and ponder upon the issue in terms of sub-clauses (12) and (13) of Article 175A of the "Constitution".
9. The process or mode suggested by the appellant for filling up the vacancy of a Judge in the superior judiciary is clearly alien to Article 175A of the "Constitution". Any procedure, which is not recognized by Article 175A of the "Constitution", cannot be pressed into service for the said purpose, as it will amount to intrude the constitutional mandate.
10. We thus see no justifiable reason to interfere with the order passed by the learned Single Judge in Chamber resulting into dismissal of the constitutional petition. Resultantly , this appeal fails and is dismissed in limine .