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Fitness has edge over seniority: SC rules

July 06, 2002

LAHORE, July 5: The rule of fitness and suitability has an edge over the principles of seniority and legitimate expectancy insofar as appointments to the Supreme Court are concerned, the court observed in its judgment on five constitutional petitions challenging the elevation of three relatively junior judges of the Lahore High Court.

The Pakistan Bar Council and the Supreme Court Bar Association were among the petitioners and a five-member SC bench, comprising Chief Justice Sheikh Riaz Ahmed and Justices Qazi Mohammad Farooq, Mian Mohammad Ajmal, Syed Deedar Hussain Shah and Abdul Hameed Dogar, dismissed the petitions on April 10 for reasons to be recorded later.

In its 72-page judgment written by the Chief Justice, released by the SC’s Lahore registry on Friday, the court said the petitioners’ contention is misconceived and travels beyond the parameters indicated in the Judges Case and Asad Ali’s Case.

“In our considered view, the scope of the principles of seniority and legitimate expectancy enunciated in those cases is restricted to the appointment of the Chief Justice of a High Court and the Chief Justice of Pakistan and these principles neither apply nor can be extended to the appointment of judges of the Supreme Court. It is nowhere mentioned in those judgments that the principles of seniority and legitimate expectancy shall also apply in the matter of appointment of judges of the Supreme Court. The omission appears to be international and not accidental in view of the line of reasoning in the said judgments.

“There exists no constitutional convention or past practice to appoint the most senior Judge of a High Court as a Judge of the Supreme Court,” the judgment said.