ISLAMABAD, Jan 31: The Supreme Court issued on Thursday notice to the attorney-general for Feb 27 on a petition filed by the Supreme Court Bar Association, challenging the elevation of three judges of the Lahore High Court to the apex court in violation of the principle of seniority.

The two-judge bench comprised Chief Justice Bashir Jehangiri and Justice Syed Deedar Hussain Shah.

SCBA President Hamid Ali Khan, appearing on behalf of the association, contended that the appointments gave the impression of arbitrariness as the appointments from LHC were not consensus oriented.

“The process of appointments,” he maintained, prima facie, were non-transparent as it was difficult to understand why the method of pick-and-choose had been applied for elevation of judges from the LHC who were at number three, four and 13 on the seniority list.

The SCBA president argued that by not offering the elevation to the Chief Justice of LHC, an obvious case of discrimination was made out, as it had been consistent practice in other high courts that the chief justice of that court was elevated to the SC.

He argued that Judges Case required that when the seniority principal was violated, “the constitutional functionaries should give reasons in writing, which would be justiciable. In the present case this has not been done,” he said.

The judges, who have been superseded, did not know why they had been ignored, he further said, adding in 1999, a chief justice was offered elevation to the Supreme Court but when he did not accept it he was retired, making a reference to Justice Amirul Mulk Mengal who was retired when he preferred to stay in Balochistan.

“The situation is highly discriminatory and violative of equality clause of Article 25 of the Constitution.”

Without naming Justice Fakeer Khokhar, the SCBA president, said he was 13th in the seniority list of the LHC, as many as 10 judges had been superseded.

He further said Justice Khokhar did not qualify to be judge of the Supreme Court as he had not completed five years service as a high court judge which was a constitutional requirement. He only served three years as high court judge and remaining two years worked as federal law secretary. The period he worked as secretary law for two years could not be considered as “active practice,” he argued.

He further argued the chief justice should not be a consultee against the appointments available as a consequence of his retirement or for the vacancies becoming available after his retirement or on the retirement of a judge next senior to him.

Hamid Khan said Judges Case was a positive development and that was why SCBA welcomed it. In this case, the judiciary for the first time had reacted and defended itself from the appointees who were the favourites of the executives, barring a few exceptions, he added.

He maintained that the appointments to judiciary was a way to ensure its independence. “If appointments are arbitrary, we cannot have an independent judiciary,” he submitted.

The Chief Justice observed that the quota for judges’ appointments had been violated to save someone and bring someone else from other provinces. “In other countries there is no quota for the federal court, but as we are very sensitive about the rights of provinces, quota is there,” he observed.