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| April 29, 2003 | Tuesday | Safar 26, 1424 |
Judgment reserved in judges’ pension case
ISLAMABAD, April 28: The Supreme Court on Monday reserved its judgment on the petition of seven retired high court judges who were not given pension and other benefits because they reached the age of superannuation before completing five years on the post.
The retired judges of Lahore High Court had approached the Supreme Court seeking direction to the government for amending the relevant rules to allow them pension benefits. The petition was filed by Aqil Mirza, Abdul Hafeez Cheema, Syed Sharif Hussain Bukhari, Ghulam Sarwar, Rao Iqbal Ahmad Khan, Muneer Mughal and Ghulam Sarwar Kiani.
Justice Azam Khan of Peshawar High Court, who was not administered oath under the Provisional Constitutional Order in 2000, filed an application stating that he should be treated as a petitioner.
The petition of Tariq Mehmud, who resigned from Balochistan High Court after developing differences with the military government on the holding of referendum, was not taken up for hearing.
Sharif Bukhari, a petitioner-counsel, argued that irrespective of the length of service, he and his colleagues were entitled to pension and other benefits as they were permanent judges of the high court. He stated that the retired judges were barred under Article 207 of the Constitution from practising law before the high court which they had served and the subordinate courts or before any authority within its jurisdiction.
He pointed out that when Presidential Order 9/1970 was issued, a retired judge could practise before the high court which he had served and before any other authority within its jurisdiction. Under the 1962 Constitution, he argued, there was no such restriction.
He said the bar on law practice was shared by the judges who retired before or after five years’ service, whereas the pension benefits were only for the latter. “This has created discrimination which is not countenanced by Article 25 of the Constitution,” he contended.
The petitioners sought a declaration that they were entitled to pension and other benefits under Article 205 of the Constitution and direction to the federation to pay them pension and other related benefits from the dates of their retirement.
Hafeez Cheema argued that he had been elevated to Lahore High Court in 1995 after serving the lower judiciary for 31 years. He said that when he retired from the high court after two years, he was relegated to the post of additional sessions judge in terms of pension and other benefits. He said his appointment as a high court judge was new and he had severed his relationship with the subordinate judiciary.
He said if he was not entitled to high court pension, at least he should be allowed to practise law in the high court.
Azam Khan stated that he had served as permanent judge for 18 months, but he was not given any pension. He asked the court to direct the government to give him pension and other benefits.
Deputy Attorney-General Hafiz S.A. Rehman argued that there were two categories of high court judges — those coming from the judicial service and those from the bar.
He argued that the Presidential Order 3, 1997, determined the eligibility for pension and those who did not complete five years as permanent judges of high court were not entitled to it.
He said the judges who were elevated to high court after serving in the judicial service would be entitled to draw pension paid for the previous post if they served for less than five years in the high court.
He said the matter was governed by Article 205 of the Constitution and the 5th Schedule. He said the schedule was a part of the Constitution and it could not be read in isolation.
He argued that the president had the power to fix the minimum and maximum pension of the judges.
He said restriction of minimum period of service to qualify for pension was always there, starting from the Government of India Act, 1935. Under the 1962 constitution, at least seven years service in high court was required to get pension, he said.
He opposed the Sindh High Court judgment on the petition of late Justice I.A.U. Qureshi on the same lines and asked the court to set it aside.
The bench, consisting of Chief Justice Sheikh Riaz Ahmad, Justice Mian Mohammad Ajmal and Justice Mohammad Nawaz Abbasi, reserved the judgment.
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