NADEEM AHMED vs FEDERATION OF PAKISTAN
This petition was filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeking directions for the issuance of notifications confirming the appointment of two individuals as Judges of the Islamabad High Court. The Judicial Commission of Pakistan had recommended the appointments, and the Parliamentary Committee had confirmed them. However, the President of Pakistan delayed the issuance of appointment orders, citing an alleged procedural irregularity regarding the qualification of one participant in the Commission's meeting. The Supreme Court held that even if one member of the Judicial Commission was arguably unqualified to attend or vote, the proceedings were not vitiated because the nominations were made by a majority of the Commission's membership, in accordance with Article 175-A of the Constitution. Consequently, the Court accepted the petition and directed the concerned authorities to immediately issue the necessary notifications for the appointment of the recommended Judges, effective from the date of the expiry of their previous tenures.
- Does the presence of an allegedly unqualified member in a meeting of the Judicial Commission of Pakistan vitiate the entire proceedings of the Commission?
- Can the President of Pakistan refuse to issue appointment notifications for judges recommended by the Judicial Commission and confirmed by the Parliamentary Committee based on alleged procedural irregularities in the Commission's meeting?
- Does a nomination made by a majority of the Judicial Commission's membership remain valid under Article 175-A of the Constitution despite challenges to the qualification of individual participants?
- Article 184(3), Constitution of Islamic Republic of Pakistan 1973
- Article 175-A, Constitution of Islamic Republic of Pakistan 1973
- Article 175-A(13), Constitution of Islamic Republic of Pakistan 1973
- Clause 8 of Article 175-A, Constitution of Islamic Republic of Pakistan 1973
ORDER
' KHILJI ARIF HUSSAIN, J.---Through this petition, filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 thereinafter referred to as 'the Constitution'], 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 ofnotification(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 A 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 A 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 B 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.