ISLAMABAD: The Supreme Court on Friday suspended the operation of the Lahore High Court chief justice’s administrative order of re-fixing seniority of judges, relegating Justice Farrukh Irfan Khan below three fellow judges who were previously junior to him.

A two-judge SC bench comprising Chief Justice Anwar Zaheer Jamali and Justice Amir Hani Muslim, while admitting Justice Farrukh Khan’s petition for regular hearing, issued notices to respondents for the first week of January.

The federation through the Ministry of Law and Justice, the LHC through its registrar and high court’s judges Justices Muhammad Qasim Khan, Syed Mazhar Ali Akbar Naqvi and Mazhar Iqbal Sidhu have been made respondents by Justice Khan in his petition filed through Supreme Court Bar Association president Advocate Rasheed A. Rizvi.

The petition said Justice Khan, along with 21 other additional judges of the LHC, had been appointed through a notification issued by the law and justice ministry on Feb 17, 2010.

The petitioner, who was in the United States at that time, was informed through his brother by then LHC chief justice Khawaja Sharif about the notification as well as oath taking on Feb 19. Since it was not humanly possible for the petitioner to reach Lahore at such a short notice, the then chief justice had agreed to administer oath to him on Feb 20, 2010. Justice Sharif administered the oath to 21 additional judges on Feb 19 and to Justice Farrukh Khan on Feb 20.

The petitioner has cited the example of delaying the oath taking of retired Justice Rustam Ali Malik till his return from abroad.

In order to ensure that no prejudice was caused to Justice Farrukh Khan, the then LHC chief justice through senior puisne judge Justice Ijaz Ahmad Chaudhry had sought consent from other 21 judges that they would not object to the fixing of seniority according to the notification. All the judges had assured the chief justice that they would not object to determination of seniority in accordance with age.

Accordingly, a seniority list was prepared in which Justice Farrukh Khan was senior to Justices Qasim Khan, Mazhar Naqvi and Mazhar Sidhu.

But the three judges later filed a representation before then chief justice Khawaja Imtiaz Ahmad seeking fixing of seniority in accordance with the date of oath taking.

Justice Khawaja Imtiaz observed that the question that the seniority was to be reckoned from the date of appointment or date of taking oath required constitutional interpretation and advised the three judges to seek legal remedy.

They neither sought the legal remedy during the tenure of Justice Khawaja Imtiaz nor filed any representation before Justice Manzoor Ahmad Malik and Justice Ijazul Hasan who served as chief justices of the LHC.

“This clearly shows that they had acquiesced in the decision of then chief justice Khawaja Imtiaz Ahmad,” the petition argued.

The petitioner pointed out that he had been shown senior to the three respondent judges not only during the tenure of Justice Khawaja Sharif but also during the tenure of six other chief justices of the high court — Justices Ijaz Ahmad Chaudhry, Sheikh Azmat Saeed, Umar Ata Bandial, Khawaja Imtiaz Ahmad, Manzoor Ahmad Malik and Ijazul Hasan.

He said the respondents had filed a representation before incumbent LHC Chief Justice Syed Mansoor Ali Shah, adding that he had been given a copy of the representation but was never asked to file a formal reply.

Justice Farrukh Khan said that on Nov 22 the chief justice had summoned him to his chamber where the three respondent judges were present and asked all to settle the issue amicably.

The petitioner said he was surprised to know that Chief Justice Mansoor Shah had recorded a formal finding in a formal order purportedly passed on Nov 26 consequent to which his seniority was re-fixed and placed below that of the three judges.

The petition argued that it had been a consistent view of the apex court as well as the Supreme Court of India that the seniority of a judge had to be reckoned from the date of his appointment and, in case the date of appointment of two or more judges is the same, then it would be in accordance with the respective ages of the judges.

“The date of making oath after appointment of judges has never been taken as a factor for determination of inter se seniority,” it said.

Justice Farrukh Khan requested the Supreme Court to set aside the LHC chief justice’s Nov 26 order and restore his seniority to the place it stood in the seniority list prior to the impugned order.

Published in Dawn, December 10th, 2016