ISLAMABAD - The Supreme Court Tuesday ruled that seniority of judges of high court shall be reckoned from the order and date of their appointment as additional judges of that court.
Whereas the seniority of additional judges of a high court appointed vide the same order and date shall be reckoned from their seniority in age. The court made it clear if appointment of two or more service candidates (sessions judges) is simultaneously made with that of the candidates from the bar (lawyers), the service judges shall retain their existing seniority in the department regardless of their age, but that would be the determining factor in respect of candidates from the bar.
“This principle has consistently been followed without exception ever since the establishment of the high courts in Pakistan and is even otherwise in accord with the equitable dispensation of justice,” short order further said, and the reasons for it will be recorded later in the detailed judgement.
A five-member bench headed by Chief Justice Tassaduq Hussain Jillani dismissed the petition of Aslam Awan after hearing all the parties. Aslam’s point was that the judges’ seniority should start from the date when they are made permanent.
During the proceeding, Attorney General for Pakistan Salman Aslam Butt argued that twice or thrice oath does not affect seniority of a judge of high court. “If a candidate takes first oath as additional judge and another on becoming permanent then it would not affect his seniority because the oath is irrelevant.”
Justice Asif Saeed Khan Khosa remarked that oath of a judge is mentioned in his appointment notification, adding in other words a judge is asked to take oath therefore it can not be deemed irrelevant.
The chief justice said when a person takes oath as additional judge then there is no need for another oath at the time of becoming permanent.
Justice Asif Saeed Khosa remarked that the purpose of new oath could be the entrance to the new office.
Upon that the chief justice inquired from the attorney general that it was his opinion that there is no need of new oath if an additional judge is made permanent. The AG replied he thinks the new oath does not affect the seniority.
Justice Khosa questioned if 10 candidates are appointed additional judges and five are made permanent this year and other five become permanent next year then their seniority would be the same at the time of their appointment as additional judges or it would change with making them permanent. “There should be some legal process (due process) for the seniority of high court judges,” he said and added the judges talk about legal process for others but there is no lawful criterion for them.
Justice Khosa further said that in the Supreme Court there are three types of judges - permanent, acting and ad hoc judges - but the nature of function are the same for each. Every judge passes judgements, signs the orders and interprets the constitution, but the acting or ad hoc judges are not counted on the strength of the Supreme Court and their status is also different from the permanent judges. In the light of that it can be said that in the high court a judge is on the strength of that high court when he was made permanent, therefore there are different oaths.
Before the conclusion, the court inquired from the attorney general whether it was his personal opinion or the government’s instruction.
Butt responded that he did not receive any written instructions but he has discussed the issue with the competent authority therefore it can be regarded as the government’s opinion too.
The bench further inquired from the AG as to whether the ministry of law and justice has received complaint from any judge of the Lahore High Court. He replied in negative.
When the AG concluded his arguments the judge took a break and after the interval announced the short order.