Alleged illegal appointment: SC dismisses plea against former CJ’s decision

Five-year-old petition challenged appointment of the law secretary.

ISLAMABAD:

On the grounds of being time-barred, the Supreme Court has dismissed a five-year-old plea against former chief justice Iftikhar Muhammad Chaudhry’s decision to give the additional charge of the Law and Justice Commission of Pakistan’s (LJCP) secretary to the top court’s former registrar, Dr Faqir Hussain.

Similarly, in this case, the court has decided not to pass any order related to the alleged illegal appointment of LJCP’s incumbent secretary, Raja Ikhlaq Hussain, by the former chief justice last year.

On October 28, 2009, the then LJCP joint secretary, Malik Iqbal Ahmad, had filed a petition in the apex court against the rejection of his appeal by the Federal Service Tribunal (FST) and contended that he was not considered for the LJCP post even though he had been working as the LJCP’s senior-most joint secretary. This matter had remained undecided during the tenure of Iftikhar Chaudhry.

The present case had been fixed before three different benches during the last five months. Firstly, a two-judge bench of the apex court took up this case in December last year and also decided to examine whether any official – except for a federal government officer not below the rank of joint secretary – can be appointed as LJCP’s secretary.

This matter was again fixed before another three-judge bench – headed by Justice Jawwad S Khawaja – in the second week of April this year. The bench had asked Deputy Attorney General (DAG) Sohail Mahmood to assist in this legal matter and adjourned the hearing for two weeks.

The case was listed for the third time on Tuesday before a two-judge bench, comprising Justice Nasir ul Mulk and Justice Amir Hani Muslim. During the hearing, DAG Sohail Mahmood contended that the petition against Dr Faqir Hussain was time-barred as his departmental appeal was also rejected on March 22, 2003 and he was bound to challenge its department decision within 30 days. But he had moved the petition on May 5, 2009.

Regarding the matter about the alleged illegal appointment of LJCP’s incumbent secretary Raja Ikhlaq Hussain by the former top judge last year, the DAG submitted that this matter could be decided through a constitutional petition as this is a services case, wherein the court could not examine the constitutional issue.

After hearing DAG’s arguments, the court dismissed the five-year-old petition against the former CJ’s decision to give the additional charge of LJCP secretary to the top court’s former registrar, Dr Faqir Hussain, and also decided not to examine the appointment of the incumbent LJCP secretary in this case.

Raja Ikhlaq Hussain was a district and sessions judge in Punjab but he was appointed as the LJCP secretary on a two-year deputation in May 2013 by former CJ Iftikhar Chaudhry.

It is alleged that the appointment is a violation of Section 5 (1) of the Law & Justice Commission Ordinance 1979. Section 5 (1) reads: “The commission shall have a separate secretariat to be headed by a secretary, who shall be an officer of the federal government not inferior in rank to a joint secretary to the federal government.”

The Express Tribune has learnt that the LJCP’s rules have been amended in the past and the chief justice was authorised to appoint anyone, including members of the bar, judicial officers, teachers etc, against the LJCP secretary post.

Speaking on the issue, Supreme Court Bar Association (SCBA) President Kamran Murtaza said that whenever a rule contravenes any basic law (ordinance) then the law prevails as it is the basic principle.

Published in The Express Tribune, May 1^st, 2014.