ISLAMABAD             -         Khyber Pakhtunkhwa Bar Council (KPBC) on Monday filed a constitutional petition before the Supreme Court of Pakistan praying to fill vacancies in the apex court after setting aside notifications of the three judges of the Lahore High Court (LHC)

The KPBC requested the court to fill these vacancies through appointments made from inter-se seniority (the seniority based on the date of regular appointment to a service, cadre or post) of the Chief Justices of the High Courts, particularly of Justice Waqar Ahmed Seth, with retrospective effect.

Justice Qazi Muhammad Amin, Justice Amin-ud-Din Khan, Justice Syed Mazhar Ali Akbar Naqvi were elevated to the Supreme Court after the retirement of former Chief Justice Mian Saqib Nisar, ex-judge Sheikh Azmat Saeed and ex-CJP Asif Saeed Khan Khosa respectively. 

KP Bar Council filed the petition under Article 184(3) of the Constitution and made Judicial Commission of Pakistan, federation through Secretary Law and Justice, Parliamentary Committee for Appointment of Judges, and Justice Qazi Muhammad Amin, Justice Amin-ud-Din Khan, Justice Syed Mazhar Ali Akbar Naqvi through SC Registrar as respondents. 

The bar adopted that the elevation of three LHC judges to the apex court was made in utter violation of the principle of seniority and merits, thus violation of constitution and the law. The petitioner contended that in view of the relevant provisions of the Constitution and well established constitutional conventions/practice as well as the law laid down by the apex court in Al-Jihad Trust (1996) and Malik Asad (1998) case, CJ PHC Waqar Ahmed Seth had the legitimate expectancy to be appointed judge of Supreme Court on the basis of seniority, eligibility and merit. However, surprisingly and unfortunately he has been dropped, ignored and superseded thrice without any valid reason and affording him an opportunity of hearing. 

It added that Justice Waqar Ahmed Seth was elevated to Peshawar High Court as additional judge on August 2, 2011 and later took oath of Chief Justice PHC on 28th June, 2018. He was thrice superseded for no legal and valid reason. The ability and competence of the CJ PHC Waqar Seth is recognized not only in Pakistan, but also abroad.

The petitioner contended that the three judges from Lahore High Court elevated to the apex court by ignoring the inter-se seniority of the Chief Justices of High Courts as well as the importance given to the office of Chief Justice of High Courts under Articles 175-A and 209 of Constitution. 

The petition mentioned that the Sindh Bar Council in May 2020 through a letter to Chief Justice of Pakistan had also conveyed its displeasure, concerns and reservation of the legal community about the appointments of the three judges of LHC.

 The petitioner said that the authority should exercise its powers reasonably, fairly, justly and for the advancement of administration of justice. The independence of judiciary is linked and connected with the appointment of judges.

The bar argued that three judges from LHC before their elevation to the Supreme Court were performing their duties under the administrative control of Lahore High Court Chief Justice being junior to him. Therefore if the LHC CJ was appointed as judge of Supreme Court then he would be junior to those three judges in the apex court and same would be the position of other Chief Justices of other High Courts.