RAWALPINDI: The federal government has started considering the summary by President Pervez Musharraf about declaring deposed SC judge Falak Sher as senior to all deposed and present judges of the Supreme Court including deposed Chief Justice Iftikhar Mohammad Chaudhry.
In July 2007 the president, after accepting Justice Falak Sher’s application for declaring him as the senior most SC judge, offered to appoint him as chief justice. However, Justice Falak Sher rejected the president’s offer at that time because of the judicial crisis.
Justice Falak Sher told The News that before and after the restoration of Justice Iftikhar as chief justice, he was offered twice to take charge of chief justice of Pakistan as his application about seniority had been accepted.
However, he said, at that time circumstances were different and he rejected the offer. Justice Falak Sher refused to answer questions about contacts by the present government in this regard.
Justice Falak Sher was appointed as High Court judge in 1987. According to judicial seniority, deposed Chief Justice Iftikhar Mohammad Chaudhry, deposed Justice Rana Bhagwandas, deposed Justice Javed Iqbal and serving Chief Justice Abdul Hamid Dogar are 7 years junior to Justice Falak Sher, while serving Justice Faqir Mohammad Khokhar is 9 years junior to him.
If the president’s summary is implemented and Justice Falak Sher takes charge as the SC CJ, then after him Justice Ramday would be the senior most judge. All the deposed and serving judges including Chief Justice Iftikhar Mohammad Chaudhry would become junior judges.
Justice Falak Sher is to retire in September 2008. He can continue as chief justice till Sept 19, 2008. After that Justice Ramday would take over as CJ and he would be retired in 2010. After him Justice Iftikhar Mohammad Chaudhry can become chief justice.
A senior judge of the Supreme Court, when contacted by The News, said Justice Falak Sher’s seniority is correct and it was his right to become chief justice. But, he said, in view of the judges restoration issue now if the president’s summary was implemented it would create new crisis.
Sources said in the past the judges seniority was counted from the date of their appointment as the Supreme Court judges. Because of this fact many otherwise senior judges became junior.
The sources also said that the judges taken in the Supreme Court from Balochistan, Sindh and NWFP become more senior than the judges taken from Punjab. For example, they said, Justice Iftikhar Mohammad Chaudhry was appointed as Balochistan High Court judge in 1996, but because of his early elevation to the Supreme Court, the judges who were appointed in the Lahore High Court in 1987, 1988 became junior to him in the Supreme Court.
In his application to the president Justice Falak Sher had taken the stand that seniority of a judge should be counted from the date of his joining the judicial service, and at the time of his appointment in the Supreme Court, his seniority as the High Court judge should not be ignored.
The sources said the law is silent on this issue. However, the tradition is that a supreme court judge’s seniority is counted from the date he joins the apex court. They said in Falak Sher’s case the seniority would be counted from High Court appointment and this would tantamount to breaking the tradition.
Courtesy: The News, 16/4/2008