Peshawar High Court (PHC) Chief Justice Waqar Ahmad Seth has moved the Supreme Court seeking an order to restrain Judicial Commission of Pakistan (JCP) to make any recommendation for the elevation of a high court judge to the apex court on the one vacant seat after the retirement of Justice Faisal Arab.
PHC CJ, who had challenged the elevation of three Lahore High Court (LHC) judges to the top court in alleged violation of principle of seniority, filed an application for the fixation of his constitutional petition at the earliest.
In his application, the PHC CJ maintained that he was the senior most chief justice amongst all the high courts’ chief justices.
He stated that a post was vacant after the retirement of Justice Ejaz Afzal Khan in May 2018, who belonged to the province of Khyber Pakhtunkhwa.
The PHC CJ observed that it was the convention of the Supreme Court that an appointment to it was made against a vacancy, which belonged to a particular province.
The judge regretted that against the said vacancy, an appointment was made from Karachi and that too of a much junior judge.
Later on, despite the occurrence of two vacancies in the Supreme Court, appointments were made from Punjab thus illegally ignoring the petitioner, he said.
PHC CJ noted that it was imperative in the interest of justice and to avoid prejudice to his seniority, this time, no recommendation be made by the chief justice of Pakistan, who is also chairman JCP, until a final decision on his petition was made.
He also urged the commission not to consider any nomination for SC judge until a final verdict on his petition was given.
In June, Justice Seth had filed a constitutional petition in the apex court under Article 184 (3) through renowned lawyer Hamid Khan, who heads one of the two major lawyers group, the independent group. Later SC registrar office returned his petition with objections.
Now the PHC CJ through his counsel Khan has filed an appeal against the registrar office order.
Justice Seth had challenged the elevation of Justice Qazi Muhammad Amin Ahmed, Justice Aminuddin Khan and Justice Mazahar Ali Akbar Naqvi – all belonging to the LHC.
Justice Ahmed was appointed as an SC judge during the tenure of former chief justice of Pakistan Asif Saeed Khosa a month after his retirement from the LHC. He ranked 26th on the LHC seniority list.
Justice Khan was also elevated to the apex court even though he was fifth in terms of seniority in the LHC. Justice Naqvi was the third senior most judge in the LHC.
The petitioner also questioned the 2002 judgment which did not endorse the principle of seniority for elevation.
The petition also criticised former CJPs – Irshad Hassan Khan and Sheikh Riaz saying that both the judges “destroyed” the independence of judiciary.
The petitioner requested the Supreme Court to set aside appointment notification of the three SC judges and consider senior high court chief justices for elevation to the apex court on vacant posts.
The Sindh Bar Council (SBC) and KP Bar Council have also raised serious questions over “out-of-turn elevation” of judges to the Supreme Court in the last five years. However, several judges were elevated to the top court against violation of seniority principle. Likewise, senior lawyers said that Sindh High Court Chief Justice Ahmed Ali M Shaikh was more senior than Justice Seth.
SHC CJ was appointed on March 15, 2017 while Justice Waqar Seth was elevated as PHC CJ in June 2018.