ISLAMABAD: The Supreme Court settled a seniority controversy among the high court judges when it dismissed a petition moved by Justice Farrukh Irfan Khan of the Lahore High Court (LHC).
Consequently, Justice Khan, who is also facing a reference before the Supreme Judicial Council (SJC), will remain junior to two judges senior to him.
“For reasons to be recorded later, the petition is dismissed,” observed Justice Sheikh Azmat Saeed while dictating the order after a long hearing.
Justice Saeed headed the five-judge bench that had taken up a 2016 petition by Justice Khan who had urged the court to set aside a Nov 26, 2016 administrative order of then LHC chief justice Mansoor Ali Shah which, according to the petitioner, had disturbed the inter-se-seniority of the judges of the batch appointed on Feb 17, 2010, relegating Justice Khan’s seniority.
The rejection of the petition means that Justice Shah’s order was upheld by the apex court on Thursday, which had relegated Justice Khan though previously he was shown senior to Justice Muhammad Qasim Khan, Justice Syed Mazahar Akbar Ali Naqvi and Justice Mazhar Iqbal Sidhu.
Justice Sidhu had resigned against the backdrop of a reference before the SJC.
Justice Khan through his counsel Hamid Khan had pleaded that he was being shown junior to these judges on the basis of an administrative order which is illegal.
Justice Khan was appointed an additional judge of the high court through a notification on Feb 17, 2010 and was confirmed as the permanent judge.
It’s Feb 20, not Feb 17
Opposing the petition, Additional Advocate General Punjab Muhammad Shan Gul argued that Feb 17 was not the date of appointment of Justice Khan but the date of presidential notification. The date of appointment in the case of Justice Khan was Feb 20 and that of other judges were Feb 19.
Citing Article 193 of the constitution, Mr Gul argued that the provision specifies that before entering the office a judge had to take the oath before the chief justice. A collective reading reveals that the president appoints a judge in accord with the criteria provided under Article 175A and the appointment was only complete when the judge takes the oath.
The words before entering the office are of essence and cannot be rendered redundant, the AAG contended, adding the judge’s appointment process culminates with and was conditioned upon the taking of an oath.
If the judge does not take oath, his appointment does not mature and therefore he is not the judge and thus cannot function as a judge or adjudicate or decide a case, he contended.
Published in Dawn, October 19th, 2018