NASEEB MASIH Versus PRESIDENT OF PAKISTAN

ORDER

AALIA NEELUM, CJ.--- Through the instant petition, the petitioner seeks direction to the respondents to consider appointing personnel from minority communities as judges of the High Courts to fill existing vacancies, in view of the provisions of the Constitution of the Islamic Republic of Pakistan, 1973.

2. At the very outset, the petitioner has pressed the instant petition only to the extent that 5% quota for minorities be fixed in the superior judiciary in view of the judgment of the Apex court reported as PLD 2014 SC 699 and Rule 6 of the Judicial Commission of Pakistan.

3. Heard.

4. Learned counsel for the petitioner submitted that 5% quota for minorities in the superior judiciary be fixed. It is relevant to mention here that the judicial service has been assigned a specific place within the constitutional framework; it would neither be appropriate to bring it under the purview of the establishment, nor to fix a 5% quota in it. As per the Constitution of the Islamic Republic of Pakistan, 1973, a procedure for the appointment of judges of the Superior judiciary has been prescribed, which is equal for all.

5. Chapter 1 of Part VII of the Constitution deals with the appointment of judges to the High Courts. Article 175-A provides that there shall be a Judicial Commission of Pakistan for the appointment of Judges of the Supreme Court, High Courts, and the Federal Shariat Court. Sub-clause (4) of Article 175-A of the Constitution mandates that the Commission may make Rules regulating its procedure, including the procedures and criteria for the assessment, evaluation, and fitness for appointment of Judges. The Judicial Commission of Pakistan framed Rules in exercise of the powers conferred by clause (4) of Article 175-A of the Constitution of the Islamic Republic of Pakistan. The power to appoint a Judge of the High Court vests with the Judicial Commission of Pakistan, wherein the merit of all candidates for appointment will be equal, and Rule 6 of the Judicial Commission of Pakistan provides that the members of the commission shall, subject to the prescribed criteria, ensure proper diversity in terms of gender, region, and religion in initiating and finalizing the nominations for the appointment of judges in the High Courts. The Judicial Commission of Pakistan considers merit and also looks into the diversity of nominations.

6. In fact, the petitioner mainly focused on the 5% quota for minorities. The judicial service is not a traditional form of employment and is separate from other services. Members of other services cannot be equated with members of the judiciary, either constitutionally or functionally. Therefore, the 5% quota cannot be considered to prioritize the judiciary or the High Court. It would, hence, not be appropriate to compromise on merit.

7. Given the above, the instant petition, being devoid of any merits, stands dismissed.

UN/N-35/L Petition dismissed.