ISLAMABAD, Feb 11: Justice Nazim Hussain Siddiqui, a judge of the Supreme Court whose seniority has been challenged by Justice Iftikhar Mohammad Chaudhry, has defended his position, arguing that the length of service as a judge of the high court is not considered a valid ground for seniority in the apex court.

In response to Justice Iftikhar’s representation to the Chief Justice for changing the seniority list, Justice Nazim stated: “Elder in age, senior in rank is the principle, which is followed by all the high courts and Supreme Court of Pakistan.”

The 16-page response by Justice Nazim was acquired by Dawn from the Supreme Court sources.

According to Justice Nazim, his date of birth is June 30, 1940, and that of Justice Iftikhar is Dec 12, 1948.

Justice Nazim stated that classical examples of the above principle was of Justice S.A. Nusrat (retd) and Justice Zafar Hussain Mirza (retd) as the former was senior to the latter in age but was junior as a judge of the Supreme Court.

Similarly, incumbent Chief Justice Shaikh Riaz had more experience as a judge of the high court than Justice Abdur Rehman Khan (retd) but he was later declared as junior to Justice Rehman.

Justice Nazim argued that Justice Iftikhar’s reliance on section 8 (4) of the Civil Servants Act 1973, was misplaced. “It is reiterated that High Court judges are not civil servants nor the Civil Servants Act and rules are applicable to them,” according to Justice Nazim’s response.

Justice Nazim stated that the inter-court combined seniority amongst the judges of high courts was never maintained. According to the Constitution, he pointed out, all the four high courts are independent. Besides, this principle of inter se seniority militates the concept of independence of high court and rights of the federating units. “If this principle is invoked (then) neither I nor the petitioner would have been the chief justice of Sindh and Balochistan High Court, respectively.”

He further stated that Syed Saeed Ashhad would have never been appointed chief justice of the high court as he was elevated to the office of chief justice only after having served about four years as judge of the SHC.

Justice Nazim stated that the appointment in high court/supreme court was always a fresh appointment and not a promotion. “There is no provision in the Constitution for promotion of a judge of High Court or Supreme Court at any stage.”

He stated that if the objective of seniority was to pick up a more experienced person, even then he was entitled to preference over the petitioner. “I am more qualified than him. He is LLB and I am LLM. He started practice in the year of 1974 and by that time I had the experience of about 13 years as an advocate and judge.”

Justice Nazim further stated that Justice Iftikhar had challenged his seniority after two years. “By this conduct from the very beginning he accepted my seniority and even he was a member of the bench which was headed by me.”

As an additional ground, Justice Nazim stated, he took the oath as the chief justice of the SHC on April 22, 1999 before noon, whereas Justice Iftikhar took the oath as chief justice of the BHC in the evening of April 22, 1999. “Be that as it may, forenoon and afternoon carry different meanings and cannot be equated. Afternoon for all practical purposes means next day.”