KARACHI, July 14: Justice Sabihuddin Ahmed of the Sindh High Court has not agreed with the contentions of Justice Sajjad Ali Shah, former chief justice of Pakistan, on the question whether a person is entitled to pension on the basis of the highest office that he held during his judicial career or the office from which he finally retired.

Pronouncing the judgment Justice Ahmed, nevertheless, observed that the fact that the petitioner held the exalted office, it demanded that grace be shown instead of litigating the matter.

The case was referred to Justice Ahmed after a difference of opinion arose between the Chief Justice of the Sindh High Court, Justice Saiyed Saeed Ashhad, and Justice Zahid Kurban Alvi.

The admitted facts in brief are that the petitioner after having served as a judge and chief justice of the SHC was elevated as a judge of the Supreme Court in November 1990. On May 5, 1994 he was elevated to the exalted office of the Chief Justice of Pakistan in preference over three senior judges, Justice Saad Saood Jan, Justice Abdul Qadeer Chowdhri and Justice Ajmal Mian. Justice Chowdhri retired in July 1995 and Justice Jan in July 1996.

On Nov 26, 1997 a bench of the Supreme Court sitting at Quetta, upon a petition in the nature of quo-warranto questioning the appointment of the petitioner as Chief Justice, passed an interim order restraining the petitioner from performing any administrative or judicial functions as Chief Justice of Pakistan. A similar order was passed by a bench sitting at Peshawar the following day.

Eventually the case was heard by a 10-member bench of the Supreme Court, and through an elaborate judgment reported as Malik Asad Ali and others vs Federation of Pakistan (PLD 1998 SC 151), the appointment of the petitioner as Chief Justice of Pakistan was held invalid and unconstitutional being in violation of the constitutional convention that the senior-most judge of the Supreme Court was to be appointed Chief Justice, excepting some solid reason.

Accordingly, it was held that the petitioner ceased to hold the office of the Chief Justice and reverted to the position of a judge of a court in accordance with his seniority. Justice Ahmed mentioned in the judgment that after the aforesaid pronouncement the petitioner did not resume duties as a judge of the apex court and proceeded on leave and eventually stood retired after a few months on attaining the age of superannuation.

Through this petition the petitioner had claimed a number of reliefs but only one of them, ie, his entitlement to pension as Chief Justice of Pakistan, instead of a puisne judge, was pressed and pronounced upon.

Justice Alvi had concluded that after it had been acknowledged that Justice Jan was receiving pension payable to retired Chief Justice of Pakistan, so the petitioner had been discriminated against and was also entitled to the pension of Chief Justice.

Justice Ashhad however came to a different conclusion, and upon this difference of opinion the matter was placed before Justice Ahmed as a referee judge.

Ikram Ahmed Ansari, counsel for the petitioner, supported the view taken by Justice Alavi and emphatically argued that when the benefit of pension as Chief Justice was granted to Justice Jan, who never occupied that office on a substantive basis, so there could be no conceivable reason for denying the same to his client, who had actually performed such functions for more than three years.

He had argued that in Asad Ali’s case itself it had been laid down that all actions taken and orders passed by the petitioner as Chief Justice up to 26. 11. 1997 stood validated. Incidentally eight of the 10 judges deciding the case were appointed after consultation with the petitioner and administered oath by him. In the circumstances denial of pensionary benefits, according to the counsel, was nothing but hostile discrimination liable to be struck down under article 25 of the constitution.

Syed Zaki Muhammad, Deputy Attorney-General, had contended that the case of Justice Jan was distinguishable from that of the petitioner inasmuch as he was given pensionary benefits of the office of the Chief Justice upon the hypothesis that had the constitutional convention been duly followed he would have been appointed Chief Justice of Pakistan in 1994 after the retirement of Dr Justice Nasim Hassan Shah instead of the petitioner and he would have retired as such in accordance with the seniority list.

Mr Ansari attempted to meet this argument by contending that the seniority convention highlighted in Asad Ali’s case was not acted upon either in practice or in the subsequent judgment of the Supreme Court in a recent case where the appointment of certain judges in the Supreme Court was called in question.

Justice Ahmed was however, unable to accept the reasoning of the counsel for the petitioner. “Be that as it may judgment in Asad Ali’s case was delivered by a bench of 10 honourable judges and this court is bound to follow the law declared therein unless it has subsequently been overruled by the Honourable Supreme Court itself,” he observed.

The detailed reasons in the subsequent judgment have not been placed before the Court. In any event the same had been decided by a bench of five judges, and it could not be presumed that the earlier precedent was overruled.

He was of the view that there could be no dispute as to the fact that the petitioner actually held the office of the Chief Justice of Pakistan for about 3« years on a substantive basis. Nevertheless, it was equally true that he was reverted to the position of a judge of that court in terms of the order of the Court passed in Asad Ali’s case.

Justice Ahmed agreed with Justice Alavi on the issue that the petitioner had held the office dejure till he was needed to vacate the same by the pronouncement of the Supreme Court. However, he said that aforesaid pronouncement could only take effect prospectively.

Justice Ahmed emphasized that the question for consideration was whether a person was entitled to pension on the basis of the highest office that he had held during his judicial career or the office from which he finally retired. In other words, whether the petitioner acquired the right to be paid pension due to a Chief Justice from the moment he assumed that exalted office on a substantive basis or whether the right to receive the same accrued only upon his reaching the age of superannuation.

“Indeed in the former case it could possibly be urged that while the petitioner was directed to lay down the office of the Chief Justice upon issuance of a writ of quo-warranto against him, he could not be deprived of the vested rights accrued to him earlier,” Justice Ahmed held.

In the above context, he reproduced para 15 of the Supreme Court Judges (Leave, Pension and Privileges) Order 1997, which reads as under:

“15. Entitlement. A judge shall on his retirement or removal, he paid a pension in accordance with the provisions of this Order if he has a) attained the retiring age; and b) completed not less than 10 years’ service as judge or not less than seven years’ service for pension and before attaining the retiring age resigned; or c) completed not less than five years’ service as judge or not less than three years’ service for pension and before attaining the retiring age, resigned and his resignation having been medically certified to be necessitated by ill health or been removed for physical or mental incapacity.”

Admittedly in the instant case neither condition (b) or (c) was attracted. It was therefore evident from a plain reading of the above rule that the petitioner’s right to receive pension accrued only upon his attaining the age of superannuation and not at times prior thereto, ie, while he was holding the office of the Chief Justice, Justice Ahmed observed.

Mr Ansari was unable to cite any principle of law or precedent suggesting a contrary view he held. He was therefore of the opinion that the pensionary benefits of the petitioner could only be premised on the basis of the office that he was holding on the date of retirement, notwithstanding the fact that he had earlier held the office of the Chief Justice.

“For these reasons, I am in agreement with the view taken by the Honourable Chief Justice. This however will not prevent the respondent from displaying some grace towards the person who has occupied the exalted office of the Chief Justice of Pakistan during an extremely stressful period,” Justice Ahmed held.