ISLAMABAD, Dec 11: Tariq Mahmood, a former judge and ex-president of the Supreme Court Bar Association (SCBA), has petitioned the Supreme Court that Accountant General of Balochistan (AGB) and Controller General Accounts (CGA) be made to treat his case in accordance with a judgment of the apex court that had allowed pension to all permanent judges who had to resign without completing mandatory period of five years.
A bench of the Supreme Court headed by Justice Faqir Mohammad Khokhar has already issued notices to the respondents – AGB and CGA – on contempt of the court petition by Justice Tariq Mahmood, though next hearing date has not yet been fixed.
Justice Mahmood, who was appointed an additional judge of the Balochistan High Court (BHC) in September, 2000, and later took oath as permanent judge under Article 193 of the Constitution next year, told Dawn that a large number of permanent judges like him from the Punjab, NWFP and Sindh were granted pension and other benefits in compliance with the judgment of the Supreme Court, though they had not completed the five years of mandatory service.
“I am the only example from the Balochistan who is not allowed to practice in the province and who is not been granted the pension in defiance of the apex court order.”
Justice Mahmood was made to resign in 2002 as judge of the BHC as he had declined to be part of the Election Commission of Pakistan to supervise the 2002 referendum conducted by former president Pervez Musharraf.
He is also among those three noted lawyers who remained under house arrest soon after the proclamation of emergency rule by the former president on November 3 last year.
In his petition, he contended that he was entitled to pension and other benefits but the high court refused to finalise pension papers on the grounds that pension was payable only to those judges who had completed not less than five years of service under the President’s Order 3 of 1997.
Being aggrieved, Mr Mahmood moved a constitution petition in 2003 which was heard and decided by the Supreme Court with number of other petitions this year by holding that permanent judges of the high court were entitled to pension and other benefits under Article 205, as their constitution right to pension as retired judges could not be denied on the basis of condition of service mentioned in the president’s order.
There is no legal or constitutional backing to differentiate between a permanent judge who has put less than five years of service and those who held the office of the judge for a larger period of time, the petition said, adding the concept of independence of judiciary was not confined to the discharge of judicial functions rather meant complete separation from the executive authorities of the state in all matter, including pay and pension.
This relief was not only granted to those permanent judges who filed petition or become party in the case, but even to those who were not party to the proceedings, including the judges of the Federal Shariat Court.
As a consequence of the decision of the apex court, all the permanent judges belonging to the Punjab, NWFP and Sindh have received the pension.
But in Justice Mahmood’s case, he was not only allowed to practice in the BHC of which he was a judge, but also not given pension.
By declining his case of pension, the petition deplored, the AGB has referred the matter through a letter in November 2008 to the CGA with a recommendation to suitably amend the president’s order 3 to enable the release of pension to the petitioner despite the fact that the judgment of the apex court was very clear and could be understood even by a layman.
“Thus this is a sheer case of discrimination as the judgment did not involve any complication,” Justice Mahmood noted.