UMAR ATA BANDIAL, J.---Through this common judgment, we intend to dispose of Const Ps.
Nos.13-14 of 2018 and C.R.P. No.421 of 2018. All the petitioners are aggrieved by their non- confirmation as Permanent Judges of the Lahore High Court. The facts in the case of each petitioner are different, therefore, it will be useful to briefly set out the same to put matters into perspective.
FACTS A. Const. P. No.13 of 2018
2. The petitioner joined the District Judiciary in 1984 and served in various capacities till his elevation to the Lahore High Court as an Additional Judge on 25.11.2016. He performed his duties for about eight months and decided 1919 cases. Thereafter, respondent No.1, the Judicial Commission of Pakistan ("the Commission"), convened its meeting to determine the suitability of fourteen Additional Judges in the petitioner's batch as Permanent Judges of the Lahore High Court. The said meeting was held on 12.10.2017 during which the Commission recommended some learned Additional Judges for extension but declined that treatment to the petitioner. However, respondent No.2, the Parliamentary Committee on Judges ("the Committee"), in its meeting on 24.10.2017 disagreed with the recommendations made by the Commission and requested the latter to review the cases of those Additional Judges whose names had been dropped. But no action was taken on this request by the Commission and on 21.11.2017 the Ministry of Law and Justice issued a Notification which excluded the petitioner's name for extension of one year.
B. Const. P. No.14 of 2018
3. The petitioner was a practicing advocate from 1987 and he was inducted as an Additional District and Sessions Judge in the year 2000. He held different posts in the District Judiciary till his elevation to the Lahore High Court as an Additional Judge on 25.11.2016. During his period of appointment, he disposed of around 2400/2450 cases. In its abovementioned meeting of 12.10.2017, the Commission abstained from recommending the petitioner for an extension. As in the case of the previous petitioner, the Commission did not take any action on the request of the Committee to reconsider the petitioner's name. As a result, the petitioner's name was excluded from the said Notification issued on 21.11.2017 by the Ministry of Law and Justice.
C. Civil Review Petition No.421 of 2018
4. The petitioner was appointed as an Additional Judge of Lahore High Court on 08.06.2015. She initially served in this capacity for a period of one year after which the Commission granted her an extension for another year on 19.04.2016. However, once the petitioner had completed her second year, the Commission on 04.05.2017 declined to confirm her as a Permanent Judge of the High Court. During her two year service the petitioner decided approximately 10,000 cases. She was also the only female to be appointed as a Judge in her batch. A former lady Judge of the Lahore High Court filed Const. P. No. 55 of 2017 before this Court to challenge the refusal by the Commission to confirm the petitioner as a Permanent Judge. That petition was dismissed as not maintainable vide order dated 26.04.2018. The present petition seeks review of that order.
MAINTAINABILITY
5. The first two petitioners invoke the original jurisdiction of this Court under Article 184(3) of the Constitution to challenge their release as Judges of the Lahore High Court whereas on behalf of the erstwhile lady Judge a third person petitioner has in her review petition challenged the dismissal of her Constitution Petition for its non-maintainability. The first matter that needs to be examined is whether the first two petitions are maintainable. Article 184(3) ibid lays down the test that a Constitution Petition must satisfy in order to be entertained and adjudicated. The conditions of this test have been succinctly stated in the case of Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan (PLD 2013 SC 413): "11. ... A perusal of above noted sub-Article (3) of Article 184 manifests that there are two conditions, on the availability of which, original jurisdiction of this Court is to be exercised i.e. question of public importance and enforcement of any of the Fundamental Rights, subject to discretion of the Court as the words "if it considers" have been prefaced."
(emphasis supplied)
The foregoing exposition confirms that to invoke the original jurisdiction of this Court, a petitioner must established the violation of his Fundamental Right(s), the enforcement of which is a matter of importance to the public at large. In the absence of either element, the Constitution Petition cannot be entertained. This aspect of the constitutional jurisdiction of the Court was explained in the case of Al-Jehad Trust and another v. Lahore High Court (2011 SCMR 1688): "11. ...The mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, will not attract the jurisdiction of this Court under Article 184(3) of the Constitution."
6. In the present matters, the petitioners have failed to establish the primary condition for the maintainability of their petition, namely, that any Fundamental Right of theirs has been infringed.
In fact, during oral submissions learned counsel mainly focused on the public right to an independent judiciary and right to access justice as a ground for urging the need to confirm the petitioners as Permanent Judges of the Lahore High Court. While there is no cavil with the proposition that independence of judiciary and access to justice fall within the ambit of c Fundamental Rights [ref: Chief Justice of Pakistan lftikhar Muhammad Chuudhary v. President of Pakistan (PLD 2010 SC 61) at para 60], we are not convinced that the petitioners can raise the violation of the same as a reason for ensuring their appointment to the Superior Judiciary. Here a distinction must be made between the decision in the Chief Justice of Pakistan case (supra) and the present matter. In the former, a petition tiled by the then Chief Justice was allowed on the ground that his removal was violative of the independence of judiciary and the right of the people to access justice. A crucial factor which influenced the Court in entertaining the petition was the blatant transgression of the then Chief Justice's security of tenure (considered an integral feature of an independent judiciary) as guaranteed under the Constitution. However. in the instant case we are concerned with the grievances of Additional Judges and not of Permanent Judges. Whilst the latter are promised security of tenure the former are not. This is evident from Article 197 of the Constitution which reads: "197. Additional Judges At any time when?
(a) the office of a Judge of a High Court is vacant; or
(b) a Judge of a High Court is absent or is unable to perform the functions of his office due to any other cause; or
(c) for any reason it is necessary to increase the number of Judges of a High Court, the President may, in the manner provided in clause (1) of Article 193, appoint a person qualified for appointment as a Judge of the High Court to be Additional Judge of the Court for such period as the President may determine, being a period not exceeding such period, if any as may be prescribed by law."
(emphasis supplied)
7. It may be noticed from this provision that Additional Judges are only appointed for such duration as the President determines subject to any period prescribed by law. Currently no such law exists therefore it is the President who decides the period for which a person performs the functions of an Additional Judge. As a matter of convention this period is one year at the end of which the Commission may either confirm an Additional Judge or grant him/her an extension or allow his/her term of appointment to expire. Since the confirmation of Additional Judges is contingent upon the approval of the Commission, it cannot be said that Additional Judges possess a constitutional tenure. Therefore, the petitioners being Additional Judges cannot on the strength of the doctrine of independence of judiciary and/or access to justice claim a right to be confirmed as Permanent Judges of the Lahore High Court. Any decision to the contrary will render Article 197 of the Constitution redundant. Similarly, Additional Judges cannot also claim an extension of their term because no Fundamental Right under the Constitution confers such entitlement upon them.
Consequently, in light of what has been discussed, these petitions are liable to be dismissed for failing to satisfy the two-fold test of maintainability of a petition laid down by Article 184(3) of the Constitution.
LEGITIMATE EXPECTATION
8. Before parting with this judgment, it would be useful to dwell briefly on two Other points raised by learned counsel during their arguments in order to demonstrate a breach of the petitioners Fundamental Rights. The first of these contentions is concerned with the doctrine of legitimate expectation which infused the petitioners with a positive expectation that, in the absence of any compelling reasons, they would be confirmed as Permanent Judges of the Lahore High Court.
However, in making this argument the petitioners have failed to recognise that an expectation (no matter how legitimate) is not a Fundamental Right on the basis of which the original jurisdiction of this Court can be invoked. If and only if any of the rights noted in Part II, Chapter 1 of the Constitution are violated can this Court assume jurisdiction (subject to the requirement of public importance being satisfied). But even if this weakness in the petitioners' case is ignored, legitimate expectation would still be of no help because its true import has been misunderstood by them.
Reference is made to the judgment in Al-Jebad Trust v. Federation of Pakistan (PLD 1996 SC 324) which elucidates the conditions in which the said expectation may apply to Additional Judges: "...in case he is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, he is to be appointed as such..."
(emphasis supplied)
9. It may be seen from the above extract that under the erstwhile constitutional dispensation.
Additional Judges could entertain a legitimate expectation that on completing their initial period of appointment they would be confirmed as Permanent Judges after they had received the approval of the Chief Justice of the relevant High Court and the Chief Justice of Pakistan. As explained below, under the current constitutional process such an expectation may be nurtured after the approval of the Commission. However, if such approval is not granted then the expectation cannot arise. This view also finds support in the decision of the Larger Bench in Sindh High Court Bar Association v.
Federation of Pakistan (PLD 2009 Sindh 408): "41. ...there is well established practice/convention of an Additional Judge being appointed against a permanent vacancy[.] [He/she] has a reasonable expectancy to be considered for appointment as a permanent Judge but such expectancy has been made subject to the satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. If the Chief Justice of the High Court concerned does not recommend the appointment of an Additional Judge as a Permanent Judge, the qualification of reasonable expectancy will not stand, for that in order to take contrary view from the one taken by the Chief Justice of the High Court concerned either strong reasons have to be assigned or his consensus through consultative process [has to be] obtained".
(emphasis supplied)
10. To understand the current constitutional process, it is important to note that the procedure for appointment of Judges to the Superior Courts was radically changed by the 18th Amendment to the Constitution which became effective on 19.04.2010. Prior to this Constitutional Amendment, the power to appoint Judges to the High Courts was shared between the President, the Chief Justice of Pakistan and the Chief Justice of a High Court. However, the 18th Amendment did away with this process and instead created the Commission to discharge the duty of recommending appointment of Judges, inter alia, to the Provincial High Courts. For this purpose, Article 175A of the Constitution mandates the Commission to be comprised of thirteen members: the Chief Justice of Pakistan (who is also Chairman of the Commission), the four senior most Judges of this Court, a former Judge of this Court, the Law Minister, the Attorney General, the Chief Justice and Senior Puisne Judge of the High Court, the Provincial Law Minister, and nominee Advocates of the Pakistan Bar Council and the concerned Provincial Bar Council.
11. As a result, thirteen members of the Commission, who are experts and stakeholders' in the legal and judicial system, recommend the said appointments under a consultative process. Decisions of the Commission are therefore arrived by majority with every member having an equal say in the matter. This change in the manner and mode of appointing Judges was explained in the case of Munir Hussain Bhatti, Advocate v. Federation of Pakistan (PLD 2011 SC 407) as follows: "22. ...It [JCP] 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.
23. Another issue which is relevant to note is that Article 175A itself has not provided for the Chief Justice of a High Court to have any special role in the appointment process. He is just another member of the Judicial Commission and by the above said rules he has merely been provided the role to initiate the nominations. His duty is to initiate and send the nominations to the Chairman of the Judicial Commission. This act, of initiating and sending nominations, cannot be taken to be the "recommendation" itself, but is rather to be considered as an act of mere procedure. This is so because the whole object of the new legislation is to take away, the powers of one person and make the process a collective effort... Therefore, even if a Chief Justice of the High Court is of the view that certain persons are not fit to be judge's of the High Court, it is possible that the Judicial Commission, by a majority, may come to the conclusion that they are and thus make such recommendation to the Committee. These recommendations would be valid and in accordance with the letter and spirit of Article 175A.
(emphasis supplied)
12. Viewed in this light, it is evident from the record [ref: minutes of the Committee's meeting, pages 19-20 of Const. P. Nos. 13-14 of 2018, read with the Notification dated 25.11.2016 which records the initial appointment of a total of fourteen Additional Judges from the petitioners' batch] that the Chief Justice of the Lahore High Court was not satisfied with the performance of seven learned Additional Judges, including the two petitioners before us, and did not recommend their names either for confirmation or extension. In these circumstances, no legitimate expectation in the petitioners of being confirmed as Permanent E Judges could arise.
13. After the change in the appointment process of Judges by the 18th Amendment, the doctrine of legitimate expectation referred to in paras 8-9 above could, in the present situation, be applicable differently. The causative event, the recommendation by the Chief Justice of a High Court has now been substituted with the recommendation of the Commission. Additional Judges of the High Court may now harbour a legitimate expectation to be confirmed as Permanent Judges after endorsement by the majority of the Commission. However, the petitioners case cannot succeed even on this altered test of collective decision making because the dissatisfaction of the Chief Justice of Lahore High Court with seven learned Additional Judges, including the petitioners, was accepted by the other members of the Commission without dissent. This is apparent from the minutes of the Committee's meeting convened on 24 and 25.10.2017 (ref: pages 19-20 of Const. Ps.
Nos.13-14 of 2018). Clearly when the Commission as a whole was not in favour of recommending the petitioners for an extension of their term, the latter could have no reasonable ground to entertain a legitimate expectation to be granted the relief.
OBLIGATION TO GIVE REASONS
11. Learned counsel also argued that non-disclosure of reasons for denying the petitioners an extension is contrary to the principles of law and justice, specifically Articles 4 (right of individuals to be dealt with in accordance with law) and 19A (right to information) of the Constitution. Since a violation of Fundamental. Rights has been alleged, we shall deal with this point presently. Learned counsel has made the said submission without filing the minutes of the Commission's meeting held on 12.10.2017 although these were. attached as an Annex to the minutes of the Committee's meeting convened on 24 and 25.10,7017 which have been placed on our record by him. With such selective disclosure, the contention of the petitioners lacks force and credibility.
15. In any event, the petitioners demand for reasons of the Commission's decision on 12.10.2017 fails to take into account that stakeholders from four sectors of the judicial system and the Executive: National and Provincial Judiciary; Federal and Provincial Governments; nominees of premier Bar Councils of the Federation and the Provinces; and highest Law Officer of the country participate in open deliberations and discussions of the Commission to arrive at their assessment. their decisions take into account all the relevant - considerations for confirmation, extension or release of Additional Judges. These decisions are the outcome of collective efforts and so merit respect and trust. Such recognition is necessary both for institutional prestige and integrity and the repute and standing of the persons affected. In this regard. a judgment by a five member Bench in Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 SC 939) justifies why reasons should not be shared in the first place with either the affected persons or the public: "36. ... An any case, we are of the view that apart from the element of confidentiality making the record of the impugned appointments public would net be in the interest of the institution, the judicial consultee and the concerned Judges for reasons which are too obvious to need elucidation. In the Judges' case also the relevant record was made available pursuant to the order of the Court but was not perused even by the members of the Bench... The learned Attorney- General and the learned counsel for the Federation have advanced sound and convincing reasons in support of the proposition that making the record of appointments public would not be in the interest of the judiciary. Disclosure of such record if adverse to a Judge would indeed block his way or elevation in future[.] Furthermore such course of action would not only put a Judge under the vestige of a stigma but also militate against the public interest and shake public confidence in the judiciary."
(emphasis supplied)
Although the above view was pronounced prior to the incorporation of Article 175A in the Constitution via the 18th Amendment, we consider that the opinion expressed carries weight.
16. Lastly, we would like to advert to the remarks made by the Committee regarding the proceedings of the Commission. In its meeting on 24.10.2017, the Committee was of the view that the Commission had prima facie employed a 'pick and choose method' for selecting the names of the persons who would be granted an extension. In its opinion that was discriminatory. However, since we do not have the minutes of the meeting held by the Commission on 12.10.2017, we cannot comment on the veracity of the claim made by the Committee. Nevertheless, we would like to record our displeasure with' the manner in which the Committee summarily levelled an allegation against the Commission. This course of action was adopted by the Committee despite the fact that the first proviso to Article 175A(12) of the Constitution explicitly limits the Committee's jurisdiction to simply recording its reservations about a nomination sent by the Commission if the mandated three-fourth majority of the total membership of the Committee disagrees with such nomination. However, in the instant case the Committee overstepped its jurisdiction by challenging the omission of the Commission in forwarding the names of the seven Additional Judges, who were released. These included the two petitioners before us. In such circumstances, when the Committee had no jurisdiction under the Constitution to depart from the decision taken by the Commission, its observations on the proceedings of the Commission were invalid. More so when these ignored the collective decision arrived at by the Commission in its meeting of 12.10.2017.
CONCLUSION
17. In light of the above discussion, Const. Ps. Nos.13-14 of 2018 are dismissed because the petitioners have not been able to persuade us that their non-confirmation to the Lahore High Court has infringed any of their Fundamental Rights.
CIVIL REVIEW PETITION NO.421 OF 2018 IN CONSTITUTION PETITION NO.55 OF 2017
18. This petition is filed to seek review of the order dated 24.06.2018 which dismissed Const Ps. No.55 of 2017 for being incompetent under Article 134(3) of the Constitution. Learned counsel for the petitioner did not press the review petition as the erstwhile lady Judge who is the subject in this matter has been appointed as Chairman of Labour Appellate Tribunal, Punjab. However, a passing adverse remark made in the order dated 26.04.2018 about the petitioner does not bear relevance to the ground of dismissal of the petition. It is therefore superfluous and is erased from the impugned order. It shall not stand in the way of the erstwhile lady Judge, if and, when she is considered for appointment to a judicial or public post. C.R.P. No.421 of 2018 is partly allowed to that extent.