10 April 2004	Saturday	19 Safar 1425

PESHAWAR, April 9: A two-member bench of the Peshawar High Court on Friday accepted a writ petition challenging the appointment of four additional district and sessions judges (ADSJ) by the court's chief justice.

The bench comprising Justice Shahjehan Khan Yousafzai and Justice Qazi Ahsanullah Qureshi ordered that the petitioner, Kaleem Arshad Khan, be appointed as an ADSJ. The bench ordered: "The competent authority is directed to appoint/adjust the petitioner as additional district and sessions judge."

The bench had reserved its order last month after completion of arguments by both the sides. The petitioner had claimed that he had topped the merit list and interview conducted for the appointment of ADSJs by the high court, but the then chief justice Sardar Muhammad Raza Khan in September 2001 dropped his name and appointed four other candidates as judges.

The court dismissed another identical writ petition filed by advocate Muhammad Saeed, who claimed that he had also qualified for the opening, but was ignored at the time of appointments.

Hamid Ali Shah had appeared for Mr Kaleem Arshad Khan, whereas M Sardar Khan represented the four appointed ADSJs. The instant petitions were first heard by a bench headed by Justice Abdur Rauf Lughmani, which had reserved its judgment in November 2002.

However, the judgment could not be delivered for almost a year. Finally, re-hearing was ordered in the case and in the meantime Justice Lughmani stood retired with the enactment of the 17th constitutional amendment.

During the hearing, Mr Hamid Ali Shah produced certified copies of a Karachi court orders, contending that one of the four appointed judges was a proclaimed offender. He contended that the judge in question was required in a case registered against him there, but he did not turn up before the court.

He held that the appointed judge had even deceived the high court by submitting a forged court's order before it in the present writ petition. The counsel argued that merit was violated in these appointments as Mr Kaleem Arshad had topped the merit list. He added that Mr Arshad was ignored on the pretext that the reports submitted about him by the special branch of police were not favourable.

He pointed out that Mr Arshad had previously served as a civil judge on a contract basis, and there was no complaint against him at that time. The counsel had questioned as to how a candidate could be rejected on the basis of some "flimsy reports" of police's special branch.

He added that if they had to rely on the reports of special branch then the ACRs of judges should be prepared by the special branch police and not by the district and sessions judges concerned.

Sardar Khan contended that these petitions were not maintainable as an act of a chief justice could not be challenged through a writ petition. He added that these petitioners had not topped the merit list.

The respondents in the petition were the NWFP governor, secretary establishment and administration department, registrar of the high court, and the four appointed judges namely Tariq Yousafzai, Sardar Muhammad Irshad, Shaiber Khan and Ms Mah Tallat.

The NWFP governor, the petitioners stated, vide section 5 of the NWFP Civil Servants Act, 1973, was vested with the powers to make appointments of additional district and sessions judges. Through a notification on July 28, 2001, the governor delegated those powers to the chief justice of the high court.

After the delegation of those powers, the registrar of the high court, by the order of the chief justice, issued a notification on September 21, 2001, wherein the appointment of four additional district and sessions judges was made and the petitioner was ignored.