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KARACHI
A law ministry notification issued earlier on Dec 12 'reappointed' Justice Agha Rafiq instead of 'appointing' him a permanent judge of the high court like Justice Bin Yamin.
The notification of Dec 15 says that 'on his reappointment under Article 193 of the Constitution (meant for appointment of permanent high court judges), the competent authority (the president) has been pleased to allow seniority of Mr Justice Agha Rafiq Ahmed Khan as a judge of the High Court of Sindh along with pensionary benefits on the basis of his original appointment as a judge of the High Court of Sindh in accordance with the Constitution and law.'
Justice Agha Rafiq was first appointed an additional judge in 1995 but the appointment was challenged along with the elevation of a number of lawyers and judicial officers as having been made without meaningful consultation with the 'judicial consultees', the permanent chief justices of the high courts and the Supreme Court. Justice Agha Rafiq then ranked below a number of his colleagues in the judicial service.
He was laid off in pursuance of the Supreme Court verdict in the so-called Judges Case in 1996 and subsequently reverted as a district judge along with a number of other high court judges who ceased to hold office as a result of the judgment.
The Dec 15 notification assigns Justice Agha Rafiq seniority with effect from the date of his original appointment without saying what the date of such appointment is. The subordinate judicial service tribunal consisting of two high court judges recently accepted his appeal for seniority against two judicial officers, including Justice M. Sadiq Leghari, who was elevated in 2002 and retired in 2006 on attaining the age of 62.
The tribunal decision implied that he was eligible for elevation in 2002 prior to Justice Leghari if the principle of seniority was strictly followed. But it did not and could not declare his competence for elevation, much less determine the date of his first appointment.
The obvious inference is that the Dec 15 notification refers to Justice Agha Rafiq's appointment as an additional judge in 1995 or to his oath as a permanent judge administered by (the late) Justice Abdul Hafeez Memon, a Supreme Court judge appointed acting SHC chief justice by the second Benazir Bhutto government early in 1996.
If that be the case, Justice Agha Rafiq is senior to SHC Chief Justice Anwar Zaheer Jamali, who became a high court judge in 1998. Supreme Court Chief Justice Abdul Hameed Dogar was among the judicial officers elevated as high court judges in 1995 but his appointment was upheld by the Supreme Court.
The Dec 15 notification allows Justice Rafiq seniority along with 'pensionary benefits', which he is already entitled to by virtue of appointment or reappointment on Dec 12 under a recent Supreme Court judgment. It does not, however, allow him other benefits, including remunerations, with retrospective effect.
The Sindh High Court reissued a seniority list of its judges soon after the induction of new permanent judges on Dec 15 and it placed Justice Rafiq at number 14. The latest notification seems to supersede the list.
