ISLAMABAD: The Islamabad High Court dismissed on Thursday an intra-court appeal against service extension given to Chief of the Army Staff General Ashfaq Parvez Kayani.

Petitioner Col (retd) Inamur Rahim later said he would take the matter to the Supreme Court.

IHC Chief Justice Iqbal Hameedur Rehman had on Sept 24 last year dismissed the same petition on the grounds that Article 199 (3) of the Constitution barred the high court from hearing the case against persons subject to the Pakistan Army Act (PAA). Gen Parvez Kayani was given three years’ extension in November 2010.

Col Rahim had challenged the extension in September last year. On Thursday, a division bench comprising Justice Mohammad Anwar Khan Kasi and Justice Shaukat Aziz Siddiqui asked the petitioner why he had not challenged the extension in November 2010.

Advocate Col Rahim said that when Gen Kayani had been given the extension in November 2010 he was subject to the PAA, but after attaining the age of 60 in March last year, he was no more subject to the PAA as he became an alien to the army. He said Article 262-A of the PAA stated that no person shall remain in uniform after attaining the age of 60.

He cited an order issued by the Supreme Court in the Haj corruption case in 2011 discouraging re-employment after the age of superannuation.

The counsel argued that the extension in service of a holder of public office violated the rights of eligible candidates for promotion to the next grade and hindered the smooth functioning of an organisation. There should be a limit and no person should be allowed to remain in service for an indefinite period.

Justice Siddiqui observed that being an aggrieved party the petitioner might ask under which authority Gen Kayani was holding a public office and could file a writ of quo warranto. “You did not file quo warranto writ to challenge the legitimacy of the COAS, but sought a court decree against the army chief which is not possible,” he said.

The counsel sought permission to amend his appeal, but the court rejected the request and said the appeal against the order of the single bench could not be altered at this stage.

Col Rahim told Dawn that he had called a meeting of the legal forum of ex-servicemen to discuss a future course of action. “We have two options – challenging the decision in the Supreme Court or filing a new writ of quo warranto in the IHC,” he said, adding that a final decision would be taken at the meeting to be held next week.

Senior lawyer Col (retd) Sardar Aziz Khan Chandio said Col Rahim had filed a ‘certiorari’ petition in the IHC in which he had sought an order against the extension. The authority of a holder of public office could only be challenged through the quo warranto writ, and not through the certiorari petition, he added.

He was of the opinion that the petitioner could still file the quo warranto petition despite the dismissal of his appeal.

Justice (retd) Wajidhuddin Ahmed said that because of the constitutional bar the high court could not interfere in matters relating to personnel of the armed forces. However, he said, the Supreme Court could take up such matter because it had vast jurisdiction. He said the apex court could take up any matter under Article 184/3 of the Constitution “without prejudice to the provisions of Article 199” and issue an appropriate order if it considered that it was a question of public importance with reference to the enforcement of any of the fundamental rights.

Justice Wajidhuddin said the apex court could take up the army chief’s extension issue under sections 184 and 187. According to him, the apex court would declare the extension illegal if it was proved that it had been done in violation of prescribed rules and constitutional provisions.