Repugnancy to Injunctions of Islam

Citation Name : 2019 PLD 37 SUPREME-COURT
Side Appellant : MAQBOOL AHMAD QURESHI
Side Opponent : GOVERNMENT OF PAKISTAN through Secretary Law and Justice
S. 17, Proviso II---Sindh Civil Servants Act (XIV of 1973), S. 18, Proviso II---Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973), S. 17, Proviso II---Punjab Civil Servants Act (VIII of 1974), S. 16, Proviso II---Balochistan Civil Servants Act (IX of 1974), S.17, Proviso II---Constitution of Pakistan, Art.203-F---Repugnancy to Injunctions of Islam---Order of dismissal, removal from service or reduction in rank set aside---Entitlement to back benefits/ arrears on reinstatement---Plea of appellant before the Federal Shariat Court was that civil servants who were dismissed and or removed from service did not render any service during the intervening period till their restoration and or reinstatement; that Proviso II to S.17 of Civil Servants Act, 1973, Proviso II to S.18 of Sindh Civil Servants Act, 1973), Proviso II to S.17 of Khyber Pakhtunkhwa Civil Servants Act, 1973), Proviso II to S.16 of Punjab Civil Servants Act, 1974), and Proviso II to S.17 of Balochistan Civil Servants Act, 1974, which provided the concerned authority with the discretion to grant back benefits on reinstatement, were misused and abused by the reinstated civil servants, therefore such provisions, were repugnant to the Injunctions of Islam and should not be allowed to remain on the statute book---Federal Shariat Court dismissed the petition by holding that the impugned provisions did not provide for automatic grant of arrears of the intervening period between dismissal/removal/reduction in rank and restoration to the original position; that the authority vested under the law to make such an order, depending upon law, facts and circumstances, may determine, inter alia, question relating to reinstatement, etc., including restoration to original position, in seniority , cadre, and post, treatment of intervening period as duty or on leave and its kind---Held, that appellant did not cite any Nass of the Holy Quran and Sunnah of Holy Prophet (PBUH), which was sine qua non to seek declaration of the kind sought by the appellant---No exception could be taken to the view formed by the Federal Shariat Court in the impugned judgment---Ayah 188 of Surah Baqrah [2-188: Holy Quran] relied upon by the appellant, was not relevant to the point in issue nor the appellant was able to explain the same---Shariat Appeal was dismissed in circumstances with costs of Rs.10,000.

Citation Name : 2019 PLD 509 SUPREME-COURT
Side Appellant : Justice MUHAMMAD FARRUKH IRFAN KHAN
Side Opponent : FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad
Art. 194---Administrating of oath to Judges of the High Courts---Procedure---Every effort had to be made to ensure that all the persons appointed (as Judges of the High Court) made their oath together subject to unforeseen circumstances---No discretion in such behalf, was vested with the Chief Justice to take oaths in batches so as to artificially grant seniority to some Judge over other Judges---Such a course of action would be devoid of bona fide and hence, of jurisdiction and therefore justiciable.

Citation Name : 2019 PLD 509 SUPREME-COURT
Side Appellant : Justice MUHAMMAD FARRUKH IRFAN KHAN
Side Opponent : FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad
Art. 194---Inter-se seniority of Judges of the (Lahore) High Court, determination of---Reckoned from date of oath---Re-fixing of inter-se seniority of the Judges of the (Lahore) High Court by its Chief Justice---Constitutionality---Petitioner and twenty one (21) other persons were appointed as Additional Judges of the (Lahore) High Court by the President and in such behalf a Notification was issued by the Secretary Ministry of Law, Justice and Parliamentary Affairs Division---On 19.02.2010, the then Chief Justice of the (Lahore) High Court administered the oath to 21 out of the 22 Additional Judges of the (Lahore) High Court---Petitioner at that point of time was not in the country and could not reach Pakistan for the oath scheduled for 19.02.2010 and as per his case the then Chief Justice of the (Lahore) High Court was informed accordingly---Petitioner admittedly was administered the oath of his office the next day on 20.02.2010---Subsequently certain senior Judges of the (Lahore) High Court ('the respondents') made a representation to the then Chief Justice of the (Lahore) High Court, claiming that they were senior to the petitioner as their inter-se seniority should be reckoned from the date when the petitioner and the said respondents made their respective oaths---Chief Justice vide impugned order accepted the representation of respondents and re-fixed their inter-se seniority by holding that respondents were senior to the petitioner---Primary basis of such an order was that the petitioner had entered his office by making his oath on 20.02.2010, while respondents had made their oath of office on 19.02.2010---Held, that plain reading of Art.194 of the Constitution suggested that a person could only enter the Office of a Judge when he made oath in the manner set out in the Constitution---In the absence of such an oath, the person had not entered the Office of a Judge and his appointment thereto did not stand completed and concluded---Person was not, in fact, or in law a Judge until and unless he made his oath in terms of Art.194 of the Constitution---Scheme of the Constitution suggested that where an Office for a fixed period envisaged a pre-condition of making an oath, such period would commence under the Constitutional dispensation from the date when the oath was made---Perusal of the notification whereby the Judges in question, including the petitioner, were appointed by the President as Additional Judges of the (Lahore) High Court revealed that the same did not have the tone and tenor of an appointment in praesenti; it did not state that the appointment was "with immediate effect" or that the President "hereby appoints" such persons as the Additional Judges of the (Lahore) High Court---Said appointments were to take effect when the said Additional Judges made their oaths, thus, it was the intention of the appointing authority that the appointment of the petitioner as well as the other Additional Judges would take effect from the date when they made their oaths before the Chief Justice of the (Lahore) High Court---Until such an oath was made, the person did not enter into the Office of an Additional Judge, which remained vacant---Admittedly the petitioner made his oath on the 20-2-2010 while the respondents made their oaths on 19.2.2010, hence, the respondents were senior to the petitioner having been appointed earlier---Constitutional petition filed by the petitioner was dismissed accordingly.