IN THE SUPREME COURT OF PAKISTAN 
  
 
(Original Jurisdiction) 
 
 
 
 
PRESENT: 
 
 
 
MR. JUSTICE SH. AZMAT SAEED 
 
 
MR. JUSTICE MUSHIR ALAM 
 
 
MR. JUSTICE MAQBOOL BAQAR 
 
 
MR. JUSTICE SARDAR TARIQ MASOOD 
 
 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 
 
 
CONSTITUTION PETITION NO.39 OF 2016  
(Under Article 184(3) of the Constitution of 
the Islamic Republic of Pakistan, 1973, for 
setting aside the order of the Chief Justice 
of the Lahore High Court, dated 26.11.2016, 
passed on the administrative side)  
 
 
Mr. Justice Muhammad Farrukh 
Irfan Khan, Judge, Lahore High 
Court, Lahore 
 
 
 
… Petitioner (s) 
     
Versus 
The Federation of Pakistan through 
Secretary, Ministry of Law, Justice & 
Parliamentary 
Affairs 
Division, 
Government 
of 
Pakistan, 
Civil 
Secretariat, Islamabad and 4 others 
 
 
 
 
 
… Respondent (s) 
 
 
For the Petitioner (s) 
: Mr. Hamid Khan, Sr. ASC 
Mr. Muhammad Waqar Rana, ASC 
Mr. Hassan Irfan Khan, ASC  
assisted by Barrister Khadija 
Yasmin Bokhari, Advocate 
Mr. M.S. Khattak, AOR 
 
  
For the Federation 
: Ch. Aamir Rehman, 
Additional AGP 
Danish Aftab, Associate Lawyer  
 
  
Respondents No.3 
and 5 
: N.R. 
 
  
For Respondent No.4 : Mr. Mansoor Usman Awan, ASC 
Ch. Akhtar Ali, AOR 
 
  
Const.P.39 of 2016 
2 
On behalf of Govt. of 
the Punjab 
: Mr. Ahmed Awais,  
Advocate General, Punjab 
Mr. Shah Gul,  
Additional A.G., Punjab 
Mr. Zahoor Ahmed, 
Assistant Registrar, 
Lahore High Court 
 
  
Date of Hearing 
: 18.10.2018 
 
 
JUDGMENT 
  
 
 
  
 
SH. AZMAT SAEED, J.- The instant Constitution 
Petition, under Article 184(3) of the Constitution of the 
Islamic Republic of Pakistan, 1973 (Constitution of 
1973), has been filed by a sitting Judge of the learned 
Lahore High Court, calling into question the Order dated 
26.11.2016, passed by the then Chief Justice of the 
Lahore High Court, re-fixing inter se seniority of the 
Petitioner and some of the other Judges of the learned 
Lahore High Court, including Respondents No.3 to 5. 
2. 
 
The brief facts necessary for adjudication of the 
lis at hand are that vide Notification dated 17.02.2010, 
22 Additional Judges were appointed by the President, 
Islamic Republic of Pakistan, to the learned Lahore High 
Court, Lahore, including the Petitioner and Respondents 
No.3 to 5. On 19.02.2010, the then Chief Justice of the 
Lahore High Court administered the Oath to 21 out of the 
22 of the aforesaid Additional Judges of the Lahore High 
Court. The Petitioner at that point of time was not in 
Const.P.39 of 2016 
3 
Pakistan and, in fact, was in United States of America. It 
is his case that he was contacted by the then Chief 
Justice of the Lahore High Court through his brother on 
18.02.2010, informing the date of the Oath. The 
Petitioner 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. The Petitioner arrived in Pakistan on the 
night between 19th and 20th of February, 2010, and 
admittedly, he was administered the Oath of his Office on 
20.02.2010. 
3. 
 
Thereafter, a Seniority List of the Judges of the 
Lahore High Court, Lahore, was issued showing their 
inter se seniority. In the said List, the Petitioner was 
shown senior, inter alia, to Respondents No.3 to 5. It is 
the case of the Petitioner that for the next several years 
periodically such Lists were issued both by way of routine 
weekly rosters and as and when new Additional Judges 
were inducted and the Petitioner was shown as senior to 
Respondents No.3 to 5 who never took any exception 
thereto. However, in March, 2015, Respondents No.3 to 
5, made a representation to the then Chief Justice of the 
Lahore High Court, claiming that they were senior to the 
Const.P.39 of 2016 
4 
Petitioner as their inter se seniority should be reckoned 
from the date when the Petitioner and the said 
Respondents No.3 to 5 made their respective Oaths. It 
was their case that since, Respondents No.3 to 5 had 
entered the Office upon taking Oath on 19th February, 
2010, their seniority should be reckoned from such date 
and that of the Petitioner from 20th February, 2010 when 
the Petitioner took his Oath of Office. Vide Order dated 
26.03.2015, the then Chief Justice of the Lahore High 
Court choose not to disturb the inter se seniority whilst 
simultaneously advising the parties to air their grievance, 
if they so desired, before an appropriate judicial forum. 
4. 
 
That on 25.10.2016, Respondents No.3 to 5 
once again made an application to the then Chief Justice 
of the Lahore High Court, regarding re-fixation of the 
seniority vis-à-vis the Petitioner by re-agitating their 
claim on the basis of the dates on which the Petitioner 
and the said Respondents had made their Oath of Office. 
In the meanwhile, the then Chief Justice, who had dealt 
with the earlier representation of Respondents No.3 to 5 
and passed the above-mentioned Order dated 26.03.2015 
referred to above, had since retired and the new 
incumbent had stepped into his shoes. 
Const.P.39 of 2016 
5 
5. 
 
That the then Chief Justice of the Lahore High 
Court vide Order dated 26.11.2016, accepted the 
representation of Respondents No.3 to 5 and re-fixed 
their inter se seniority by holding that Respondents No.3 
to 5 were senior to the Petitioner. The primary basis of 
such an order was that the Petitioner had entered his 
Office by making his Oath on 20.02.2010, while 
Respondents No.3 to 5 had made their Oath of Office on 
19.02.2010. It is the said Order dated 26.11.2016, which 
has been challenged through the instant Constitution 
Petition.  
6. 
 
It is contended by the learned counsel for the 
Petitioner that before passing the impugned Order 
neither a formal or proper hearing was conducted nor 
was the Petitioner afforded a full opportunity to present 
his case. Thus, for all intents and purposes, the 
Petitioner has been condemned unheard, hence, the 
impugned Order, is liable to be set aside.   
7. 
 
It is further contended that upon making of 
Oath 
by 
the 
21 
Additional 
Judges, 
including 
Respondents No.3 to 5 on 19.02.2010, it was agreed 
and understood by all that the seniority of the 
Petitioner, who, for reasons beyond his control, was not 
Const.P.39 of 2016 
6 
available to make the Oath on the above-said date, 
would not be effected and it was with their consent 
that the seniority of the Petitioner was fixed. In support 
of the aforesaid contentions, the learned counsel has 
drawn our attention to the Affidavits filed by two 
retired Judges of the learned Lahore High Court, who 
were part of the 22 Judges, notified vide Notification 
dated 17.02.2010, and had made Oath on 19.02.2010, 
hence, the said Respondents having waived off their 
right, if any, to seniority qua the Petitioner can no 
longer agitate the matter. It is added that this aspect of 
the matter has been totally ignored by the then Chief 
Justice of the Lahore High Court while passing the 
impugned Order dated 26.11.2016. 
8. 
 
It is further contended that since the initial 
appointment as Additional Judges in numerous weekly 
rosters were issued evidencing the inter se seniority of 
the Judges of the Lahore High Court, whereby the 
Petitioner was shown as senior to Respondents No.3 to 
5 who for years did not raise any issue, hence, had 
acquiesced to the seniority of the Petitioner and were 
estopped from agitating the matter before the then 
Const.P.39 of 2016 
7 
Chief Justice of the Lahore High Court, hence, the 
impugned Order, is liable to be set aside. 
9. 
 
Without 
prejudice, 
it 
is 
added 
that 
Respondents No.3 to 5 raised an issue regarding their 
alleged claim of seniority by way of the representation 
dated 26.03.2015 before the then Chief Justice of the 
Lahore High Court who declined to disturb the inter se 
seniority of the Petitioner vis-à-vis Respondents No.3 to 
5, leaving the said Respondents to seek their remedy in 
accordance with the law i.e. through an appropriate 
judicial forum. In the circumstances, the subsequent 
Chief Justice could not review the earlier Order of his 
predecessor that to without any legal or factual basis. 
Furthermore, even otherwise no right or review stood 
vested with the Chief Justice, hence, the impugned 
Order is illegal and is liable to be set aside. 
10.  
Without prejudice to the above, it was further 
contended that the Petitioner on attaining the requisite 
seniority became a Member of the Administrative 
Committee of the Lahore High Court and during the 
proceedings whereof the Petitioner did not see eye to 
eye with the mode and manner of the decisions taken 
by the then Chief Justice of the Lahore High Court and 
Const.P.39 of 2016 
8 
it is only to remove him from the Administrative 
Committee that the representation on behalf of 
Respondents No.3 to 5 was engineered and the 
impugned Order passed, which on the face of it, suffers 
from malice and bias, hence, is without jurisdiction 
and is liable to be set aside.  
11.  
The learned counsel further contended that it 
has now been conclusively settled by this Court in the 
case reported as Muhammad Aslam Awan, Advocate 
Supreme Court v. Federation of Pakistan and others 
(2014 SCMR 1289) that inter se seniority of the Judges 
of the learned Lahore High Court would be reckoned 
from the date of their appointment as Additional 
Judges. Thus, both the Petitioner and Respondents 
No.3 to 5 having been appointed on the same day 
through the Notification dated 17.02.2010, and the 
seniority of the Petitioner and Respondents No.3 to 5 
could not be determined on the basis of the date when 
they made their Oaths of Office. In this behalf, the 
learned counsel further contended that the provision 
for appointment of Additional Judges to the High Court 
is Article 193 of the Constitution of 1973, and the 
provisions for making of Oath is Article 194 of the 
Const.P.39 of 2016 
9 
Constitution of 1973. Each of said Articles is separate 
and distinct; the latter cannot be read so as to override 
the former, which aspect of the matter has also been 
ignored while passing the impugned Order. 
12.  
The learned counsel next contended that not 
only in the Constitutional dispensation of Pakistan and 
the 
jurisprudence 
emanating 
therefrom 
the 
appointment to an office is distinct from making Oath 
thereof but the same is also true from the other 
jurisdictions. It is his case that at best where making 
an Oath is prescribed by the Constitution of a country, 
the failure or absence of such Oath could only have the 
effect as is mentioned in the Legislative Instruments 
e.g. Constitution, requiring such Oath. In pith and 
substance, it was the case of the learned counsel for 
the Petitioner that after appointment in the absence of 
an Oath the Additional Judge may not have entered 
upon his Office but does not imply that he was not a 
Judge for all other intents and purposes. In support of 
his contentions, the learned counsel for the Petitioner 
referred to the judgment of the Supreme Court of India, 
in the case titled Ram Pal Singh v. State of U.P. and 
Ors passed in Petition for Special Leave to Appeal 
Const.P.39 of 2016 
10
(Civil) No.31990 of 2017. Whereby as per the learned 
counsel, this aspect of the matter has been identified, 
highlighted and implemented. In the circumstances, 
there was no occasion for determining the seniority of 
the Petitioner from the date of Oath rather than the 
date of appointment, hence, the impugned Order, is 
liable to be set aside.  
13.  
The learned counsel, in the above context, 
drew the attention of this Court to Article 194 of the 
Constitution of 1973, which reads as follows: 
  
“194. 
Before entering upon office, 
the Chief Justice of a High Court shall 
make before the Governor, and any 
other Judge of the Court shall make 
before the Chief Justice, oath in the 
form set out in the Third Schedule” 
 
In the above context, the learned counsel further 
contended that it is a “Judge” who makes an Oath and 
the said individual upon his appointment under Article 
193 of the Constitution of 1973, is a Judge for all 
intents and purposes other than for exercising the 
powers conferred upon a Judge. The learned counsel 
further 
contended 
that 
similar 
terminology 
was 
employed by Article 93 of the Constitution of Pakistan, 
Const.P.39 of 2016 
11
1962. The aforesaid, it is contended, is a departure 
from the previous Constitutional dispensation as 
provided under Section 220(4) of the Government of 
India Act, 1935, wherein it is stated as follows: 
  
“220 (4) 
Every person appointed to be a 
judge of a High Court shall, before he 
enters 
upon 
his 
office, 
make 
and 
subscribe before the Governor or some 
person 
appointed 
by 
him 
an 
oath 
according to the form set out in that 
behalf in the Fourth Schedule to this Act.” 
  
  
 
 
 
(emphasis supplied) 
 
Similarly, under Article 215 of the Constitution of 
Pakistan, 1956, again it is scribed as follows: 
  
“215. A person elected or appointed to 
any office mentioned in the Second 
Schedule shall before entering upon the 
office make and subscribe an oath or 
affirmation 
in 
accordance 
with 
that 
Schedule.” 
  
 
 
 
(emphasis supplied) 
 
By relying upon the aforesaid provisions, it was 
contended that previously an individual remained a 
“person” and did not become a Judge until he took his 
Oath. However, since in the Constitution of Pakistan, 
1962, followed by the interim Constitution of Pakistan, 
1972 and the Constitution of the Islamic Republic of 
Const.P.39 of 2016 
12
Pakistan, 1973, a distinction has been drawn that a 
person who becomes a Judge on appointment and as 
Judge makes his oath to assume his office.  
14.  
In the above backdrop, it is contended that it 
was now clear and obvious that the relevant provisions 
of the Constitution of 1973, there is no manner of 
doubt that a Judge is appointed by the President in 
terms of Article 193 of the Constitution of 1973, and 
therefore, he becomes a Judge or an Additional Judge, 
as the case may be, he is entitled to all privileges of a 
Judge, including his seniority.  
15.  
In short, it was contended by the learned 
counsel that the existing Constitution deliberately 
made a departure from the prior procedure of 
appointment and entering into Office and the two were 
separated and as is obvious that upon appointment by 
the President in terms of Article 193 of the Constitution 
of 1973, an individual becomes a Judge and as a 
Judge, he makes an Oath in terms of Article 194 of the 
Constitution of 1973, hence, the Petitioner was a Judge 
with effect from the date of his appointment i.e. 
17.02.2010, as were Respondents No.3 to 5 and in view 
of his age he was always senior to Respondents No.3 to 
Const.P.39 of 2016 
13
5, hence, the impugned Order is contrary to the 
Constitution of 1973 and is liable to be set aside.   
16.  
Mr. Shan Gul, learned Additional Advocate, 
Punjab, appearing on behalf of Respondent No.2, 
controverted the contentions of the learned counsel for 
the Petitioner by contending that an accumulative 
reading of Articles 193 and 194 of the Constitution of 
1973, lead to an irresistible conclusion that an 
appointment of a person as a Judge of the learned High 
Court is completed only upon his making an Oath before 
the Chief Justice of the said High Court. Till such an 
Oath is made the person is not, in law, a Judge and as he 
or she has not yet entered his or her Office, is not entitled 
to any benefit or advantage, including renunciation or 
seniority on any date prior to having made his or her 
Oath in terms of Article 194 of the Constitution of 1973. 
17.  
The learned 
Additional 
Advocate 
General, 
Punjab, further contended that there is no order of the 
then Chief Justice of the learned Lahore High Court 
contemporaneous with the appointment of the Petitioner 
and Respondents No.3 to 5, consciously fixing their inter 
se seniority either by operation of law or by consent, as 
claimed by the Petitioner. It is his case that neither such 
Const.P.39 of 2016 
14
an order has been placed on the file nor is any such 
order available on the record of the learned Lahore High 
Court, as is also mentioned in the impugned Order. 
18.  
It is further contended that the power to 
appoint a Judge is vested with the President subsequent 
to due compliance of the procedure as laid down in the 
Constitution of 1973, including Articles 175 and 175A 
thereof. It is his case that the period as to when such an 
appointment has to take effect is not specified leaving the 
option open to the President i.e. the appointing authority 
to fix any future date. In the instant case as is also the 
common practice, the date when such an appointment 
will take effect set forth in the Notification of appointment 
i.e. when the person so appointed makes an Oath. Thus, 
the appointment takes effect from the date of the Oath 
and not the date of the Notification, as is obvious from 
the contents of the Notification itself. Such a process and 
procedure is in consonance with Article 194 of the 
Constitution of 1973. Therefore, in law, the Petitioner 
became a Judge with effect from 20.02.2010 when he 
took Oath of his Office and his seniority is to be reckoned 
from such date, as has been correctly construed by way 
of the impugned Order. 
Const.P.39 of 2016 
15
19.  
The learned 
Additional 
Advocate 
General, 
Punjab, 
next 
contended 
that 
the 
Petitioner 
has 
misconstrued the judgment of this Court in the case 
reported as Muhammad Aslam Awan, Advocate Supreme 
Court (supra). It is his case that nowhere in the said 
judgment it has been held that an appointment of a 
Judge is completed from the date of the order of 
appointment or the Notification thereof. The term 
“appointment” used therein when read in its proper 
context refers to the date when such an appointment is 
completed by making an Oath in accordance with Article 
194 of the Constitution of 1973. It is added that the 
matter has been laid to rest in the concurring additional 
note by Asif Saeed Khan Khosa, J., wherein in no 
uncertain terms it was unequivocally stated that the 
seniority of an Additional Judge is to be reckoned from 
the date when he makes an Oath in accordance with the 
Constitution of 1973. 
20.  
The learned 
Additional 
Advocate 
General, 
Punjab, further contended that his contentions also find 
support from the judgments reported as Supreme Court 
Bar Association through President and others v. 
Federation of Pakistan and others (PLD 2002 SC 939) 
Const.P.39 of 2016 
16
and Sabir Ali Sajid v. Muhammad Maqsood (PLD 2006 
Lahore 607). He also relied upon the judgment of the 
Supreme Court of Minnesota in Winters v. Kiffmeyer 
(No.C8-02-1180) decided on August 30, 2002) as well as 
an article titled The Appointment and Removal of William 
J. Marbury and When an Office Vests (89 Notre Dame L. 
Rev. 199).  
21.  
The learned counsel appearing on behalf of 
private Respondents No.3 to 5, supported the contentions 
of the learned Additional Advocate General, Punjab, and 
reiterated that the seniority of the Petitioner and 
Respondents No.3 to 5 was not consciously fixed by the 
Chief Justice of the Lahore High Court upon their 
appointments. It was also categorically denied that the 
said Respondents No.3 to 5 had consented to the fixation 
of the seniority of the Petitioner as claimed. 
22.  
The learned counsel further contended that the 
question of acquiescence and waiver does not arise. He 
further added that acquiescence and waiver are sub-
species of estoppel and it is settled law that there can be 
no estoppel against the law much less the Constitution.  
23.  
The learned counsel further contended that the 
then Chief Justice, Khawaja Imtiaz Ahmed, did not 
Const.P.39 of 2016 
17
decide the representation of Respondents No.3 to 5, and 
left the matter open, hence, in the absence of  the earlier 
decision, the question of review does not arise. It is 
further added that the issue of inter se seniority of the 
Additional Judges of the Lahore High Court as well as 
with reference to the permanent Judges was perhaps not 
clear and the matter firstly crystallized upon the 
pronouncement of the judgment of this Court in the case 
reported as Muhammad Aslam Awan, Advocate Supreme 
Court 
(supra), 
more 
particularly, 
the 
concurring 
additional note by Asif Saeed Khan Khosa, J. whereby it 
was categorically held that the seniority of the Additional 
Judges of the High Court would be determined from the 
day they make an Oath under Article 194 of the 
Constitution 
of 
1973. 
Subsequently, 
after 
much 
hesitation, Respondents No.3 to 5, made an application 
for re-fixation of their seniority in terms of the said 
judgment. In the circumstances, it is contended, that the 
said Respondents cannot be said to have waived their 
right to seniority or acquiesced to the display of the name 
of the Petitioner in the roster, as purportedly senior to 
them. 
Const.P.39 of 2016 
18
24.  
The learned counsel further contended that the 
reference by the learned counsel for the Petitioner to the 
historical background in the context of the Legislative 
and Constitutional Instruments for appointment of the 
Judges so as to highlight that in the Government of India 
Act, 1935, and the late Constitution of Pakistan, 1956, 
the word “person” was used in the context of making an 
Oath by a Judge, while in the subsequent Constitutional 
Instruments, including the Constitution of Pakistan, 
1962, interim Constitution of Pakistan, 1972 and the 
present Constitution of 1973, the word “Judge” is used in 
the context of making an Oath (Article 194) is 
misconceived, as in the earlier two Legislative and 
Constitutional Instruments, i.e. the Government of India 
Act, 1935, and the late Constitution of Pakistan, 1956, 
the term “Judge” has not been defined therein, while in 
the 
subsequent 
Constitutional 
Instruments 
i.e. 
Constitution of Pakistan, 1962, interim Constitution of 
Pakistan, 1972 and the present Constitution of 1973, the 
term “Judge” has been defined to include a person acting 
as a Judge. Thus, the very premise of the contentions of 
the learned counsel for the Petitioner is misconceived and 
amounts to reading something into the Constitution, 
Const.P.39 of 2016 
19
which is not there. The learned counsel rounded up his 
contentions by contending that the order of the President 
and the Notifications of appointment of the Judges and 
the Chief Justices perceived their making Oath of Office 
even by several weeks. If the argument of the learned 
counsel for the Petitioner is accepted and said Judges are 
deemed to have been appointed on the dates of their 
Notification, the total number of Judges would increase 
beyond the prescribed limit and there would also be a 
possibility of two Chief Justices holding the Office at the 
same point of time i.e. one who is appointed and notified 
in anticipation of a vacancy and the other Chief Justice 
already occupying his Office having not yet retired or 
having not been elevated yet to the Supreme Court. Thus, 
the entire premise of the contentions raised on behalf of 
the Petitioner are an over simplistic interpretation, which 
may result in absurdity which can never be the intention 
of the framers of the Constitution.  
25.  
Having heard the learned counsel for the 
parties and the learned Law Officers, it has come to the 
forefront that the heart of the controversy requiring 
adjudication is as to when, under our Constitutional 
dispensation, a person, in fact and in law, stands 
Const.P.39 of 2016 
20
appointed as an Additional Judge or a Judge for the 
purposes of determining his inter se seniority with 
respect to his colleagues. The instant matter must 
necessarily be settled not only generally but, more 
particularly, 
in 
the 
context 
of 
the 
facts 
and 
circumstances of the case at hand.  
The Chief Justice and the Judges of the Supreme 
Court and the High Courts are appointed by the 
President of Pakistan. Reference, in this behalf, may be 
made to Articles 175A to 182 of the Constitution of 1973 
with regard to the Supreme Court of Pakistan; and 
Articles 192 to 197 of the Constitution of 1973 with 
regard to the appointment of Chief Justices and Judges 
of the High Courts. The Additional Judges are appointed 
by the President of Pakistan to the High Courts in terms 
of Article 197 of the Constitution of 1973. Such an order 
of appointment is notified through a Notification issued 
by 
the 
Secretary, 
Ministry 
of 
Law, 
Justice 
and 
Parliamentary Affairs Division, Government of Pakistan. 
In the instant case, the Appellant and the private 
Respondents were admittedly appointed as Additional 
Judges of the Lahore High Court by the President of 
Pakistan and in this behalf, the Notification dated 
Const.P.39 of 2016 
21
17.02.2010, was issued by the aforesaid Secretary. The 
operative part of the aforesaid Notification is reproduced 
hereunder for ease of reference: 
 
“GOVERNMENT OF PAKISTAN 
LAW, JUSTICE AND PARLIAMENTARY AFFAIRS DIVISION 
….. 
Islamabad, the 17th February, 2010 
 
NOTIFICATION 
 
 
 
No.F.5(1)/2010-A.II.- In exercise of the powers 
conferred by Article 197 of the Constitution of the 
Islamic Republic of Pakistan, the President is pleased 
to appoint the following persons as Additional Judges 
of the Lahore High Court for a period of one year with 
effect from the date they make oath of their office:- …” 
 
 
 
 
 
  (emphasis supplied) 
 
It is nobody’s case that the aforesaid Notification does not 
accurately and faithfully reflect the Order of the President 
of Pakistan, appointing the Additional Judges as 
mentioned in the aforesaid Notification.  
26.  
A perusal of the said Notification reveals that 
the same does not have the tone and tenor of an 
appointment in presenti. It does not state that the 
appointment is “with immediate effect” or that the 
President “hereby appoints” such persons as the 
Additional Judges of the Lahore High Court. On 
examination it becomes clear and obvious that the said 
appointments are to take effect when the said Additional 
Const.P.39 of 2016 
22
Judges make their Oaths. Thus, it is the intention of the 
appointing authority that the appointment of the 
Petitioner as well as the private Respondents would take 
effect from the date when they make their Oaths before 
the Chief Justice of the Lahore High Court. Thus, for all 
intents and purposes, the Petitioner as well as the private 
Respondents became the Additional Judges on the said 
date when they, in fact, made their Oaths. Such an 
interpretation is not only logical but also in accordance 
with the plain meaning of the words employed in the said 
Notification dated 17.02.2010 reproduced above. A 
contrary conclusion is not possible without doing extreme 
violence to the words of the Notification and the 
provisions whereunder it was issued.  
27.  
A Notification in advance for appointment of 
Judges of the Superior Courts was not made for the first 
time vide Notification dated 17.02.2010. An overview of 
such Notifications, in advance, have been recorded to in 
paragraph 30 of the judgment of this Court reported as 
Supreme Court Bar Association through President and 
others (supra). The said Notifications were held to be 
valid. Numerous other similar Notifications are also 
available. In fact, it has been found very difficult to locate 
Const.P.39 of 2016 
23
a Notification to the contrary i.e. of appointment of a 
Judge of a Superior Court in presenti. No such 
Notification was produced by either side in Court.  
28.  
Be that as it may, many of the questions which 
have floated to the surface in the instant lis stand 
answered directly or by necessary implication in 
paragraph 31 of the aforesaid judgment i.e. Supreme 
Court Bar Association through President and others 
(supra), which is reproduced hereunder for ease of 
reference: 
“31. 
Last 
but 
not 
the 
least 
the 
appointments 
in 
question 
had 
the 
blessings of the succeeding Chief Justice 
and 
judicial 
consultee 
Mr. 
Justice 
Muhammad Bashir Jehangiri who was 
consulted by the then Chief Justice of 
Pakistan at the initial stage and before 
whom all the four Judges made oath at 
the final stage i.e. on 10th January, 2002. 
The impugned notification was issued on 
26th December, 2001 with an explicit 
recital that the appointments will take 
effect from 10th January, 2002, namely. 
the 
day 
when 
four 
vacancies 
were 
available Mr. Justice Muhammad Bashir 
Jehangiri had taken oath as Chief Justice 
of Pakistan on 7th January, 2002 but he 
did not make any move for withdrawal of 
Const.P.39 of 2016 
24
the impugned notification. Had he not 
endorsed the recommendations and the 
appointments he would have certainly 
asked for a back reference or sent his own 
recommendations or refused to administer 
the oath of office to the appointees. 
Another noteworthy circumstance which 
points to ratification by Mr. Justice 
Muhammad 
Bashir 
Jehangiri 
of 
the 
appointments made in advance is that on 
31st January, 2002 he had presided over 
the Bench which had heard one of the 
above-mentioned Constitution petitions 
but had not suspended the impugned 
notification.” 
 
 
(emphasis supplied) 
29.  
It is not only the obvious intention as is 
apparent from the Notification itself that the appointment 
as Additional Judges was to take effect from the date 
when the Oath is made but the interpretation of the 
provisions of the Constitution of 1973 when examined in 
the light of the afore-quoted judgment of this Court 
reported as Supreme Court Bar Association through 
President and others (supra) lead to a similar conclusion. 
A plain reading of Article 194 of the Constitution of 1973 
referred to above would suggests that a person can only 
enter the Office of a Judge when he makes Oath in the 
manner set out in the Constitution of 1973. In the 
Const.P.39 of 2016 
25
absence of such an Oath, the person has not entered the 
Office of a Judge and his appointment thereto does not 
stand completed and concluded. In the afore-quoted 
judgment i.e. Supreme Court Bar Association through 
President and others (supra) making of an Oath has been 
referred to as the “final stage” of an appointment. The 
aforesaid comes into a sharper focus when examined in 
the context of the contentions raised by the learned 
counsel reproduced at page 970 of the judgment in the 
case reported as Supreme Court Bar Association through 
President and others (supra), where it was canvassed that 
the appointment of a Judge consists of five stages 
commencing with the recommendation with final stage 
the making by the Oath of Office.  
30.  
There is also another aspect of the matter, 
which is highlighted by the choice of words used in 
Article 194 of the Constitution of 1973 that a person 
enters the Office of a Judge or an Additional Judge upon 
making the prescribed Oath. The said provision would 
imply that till such Oath is made the person has not 
entered the Office of a Judge, which Office, thus, remains 
vacant. 
Const.P.39 of 2016 
26
31.  
The aforesaid becomes even more obvious when 
Article 194 of the Constitution of 1973 is examined in the 
context of the observations made in paragraph 31 of the 
judgment in the case reported as Supreme Court Bar 
Association 
through 
President 
and 
others 
(supra) 
reproduced herein above. It is apparent from the 
observations highlighted that there was a legal possibility 
of withdrawal of a Notification for appointing a Judge 
prior to his taking the Oath. Article 209 of the 
Constitution of 1973 protects the tenure of Office of a 
Judge, including an Additional Judge who could only be 
removed through the Supreme Judicial Council or by 
lapse of time. If after issuance of a Notification the person 
mentioned therein was in law a Judge, there could be no 
possibility of withdrawal of the said Notification in view of 
Article 209 of the Constitution of 1973, which leaves no 
manner of doubt that a person is not, in fact, or in law a 
Judge until and unless he makes his Oath in terms of 
Article 194 of the Constitution of 1973 i.e. the “final 
stage” of his appointment. 
 
In view of the above, the attempt of the learned 
counsel for the Petitioner to assert that by employing the 
word “Judge” in Article 194 of the Constitution of 1973 a 
Const.P.39 of 2016 
27
person becomes a Judge prior to making an Oath looses 
its steam and stands bereft of any force. 
32.   
The aforesaid judgment i.e. Supreme Court Bar 
Association through President and others (supra) was 
passed prior to the 18th Constitutional Amendment and 
incorporation of Article 175A in the Constitution of 1973 
but such subsequent amendments do not detract from 
the essential interpretation that the appointment of 
Judges to a Superior Court is only completed and takes 
effect when such Judge makes his Oath in the manner 
prescribed in the Constitution of 1973. 
33.  
At this juncture, it would be appropriate to 
advert the contentions of the learned counsel for the 
Petitioner that failure to take Oath may deprive a person 
of certain rights but not the Office itself. Incidentally, the 
judgment, in this behalf, to the Indian Supreme Court 
pertains to an elected Office i.e. of a punchiat. In our 
Constitution, similar jurisprudential concept is catered 
for in Article 65 of the Constitution of 1973, which is 
reproduced hereunder: 
 
“65. A person elected to a House shall not 
sit or vote until he has made before the 
House oath in the form set out in the 
Third Schedule.” 
 
 
 
 
  (emphasis supplied) 
Const.P.39 of 2016 
28
 
The intention of the framers of the Constitution of 1973 
is rather obvious, a person elected to the House of the 
Parliament, in the absence of an Oath cannot sit or vote 
but it does not suggest that such an Oath is a sine qua 
non for being considered as an elected Member. 
34.  
The choice of words employed and the context 
in which they occur are different and distinct from those 
of Article 194 of the Constitution of 1973 and cannot be 
transposed into the chapter pertaining to the judicator. 
35.  
Various other Offices catered for in our 
Constitution of 1973 are for a fixed tenor and also require 
the making of an Oath. Thus, in addition to the Office of 
an Additional Judge of the High Court, other Offices are 
also held for a fixed period under the Constitution of 
1973. In each and everyone of such situation, the period 
commences from the date when the Oath is made. 
Reference, in this behalf, may be made to the tenure of 
Office of the Auditor General of Pakistan (Article 168(2) 
and (3) and the Office of the Chief Election Commissioner 
and the Members of the Election Commission (See Article 
215 of the Constitution).  
  
Thus, it is also the scheme of the Constitution of 
1973 that where an Office for a fixed period envisages a 
Const.P.39 of 2016 
29
pre-condition of making an Oath, such period would 
commence under our Constitutional dispensation from 
the date when the Oath is made. 
36.  
An overview of the aforesaid leaves no manner 
of doubt that in terms of appointment by the President of 
Pakistan as admittedly reflected faithfully in the 
Notification dated 17.02.2010, the persons mentioned 
therein stood appointed as the Additional Judges of the 
Lahore High Court with effect from the date when they 
make their Oaths in accordance with the Oath 
prescribed. Such an interpretation not only flows from a 
plain reading of the Notification but also is in consonance 
with the provisions of the Constitution of 1973 and the 
judgment of this Court designating the making of Oath as 
the final stage of appointment. Furthermore, until such 
an Oath is made, the person does not enter into the 
Office of an Additional Judge, which remains vacant. 
Furthermore, an interpretation that the appointment of 
an Additional Judge commences from the date when he 
makes an Oath is also in accordance with the scheme of 
the Constitution of 1973, as is apparent from the various 
Articles of the Constitution of 1973 pertaining thereto, 
referred to above. 
Const.P.39 of 2016 
30
37.  
In the case reported as Muhammad Aslam 
Awan and others (supra), it has been conclusively held by 
this 
Court 
that 
the 
commencement 
date 
for 
determination of the seniority of the Judges of the High 
Courts is the date on which he was appointed as 
Additional Judges of such High Court. In the concurring 
additional note my learned brother, Asif Saeed Khan 
Khosa, J., has also observed that inter se seniority of the 
Judges would be determined from the date on which they 
make Oath as the Additional Judges of the High Court.  
 
It is an admitted fact that the Petitioner made his 
Oath on the 20th of February, 2010, while the private 
contesting Respondents made their Oaths on 19th of 
February, 2010, hence, by Applying the aforesaid 
principles to the case at hand, the said Respondents are 
senior to the Petitioner having been appointed earlier as 
has been correctly held by way of the impugned 
judgment. 
38.  
The learned counsel for the Petitioner also 
objected to the impugned judgment on the ground that 
the Chief Justice of the Lahore High Court had become 
functus officio and the private Respondents, even 
Const.P.39 of 2016 
31
otherwise, lost their rights to agitate the matter on the 
ground of waiver and acquiescence.  
39.  
The forum of final adjudication of disputes 
pertaining to inter se seniority the Judges of the Superior 
Courts has not been set forth in the Constitution of 1973 
or any law promulgated thereunder. Such a forum was 
identified with clarity by this Court in the judgment 
reported as Reference by the President of Pakistan under 
Article 186 of the Constitution of Islamic Republic of 
Pakistan, 1973 (PLD 2013 SC 279) wherein it was held 
that such inter se seniority would first be decided by the 
Chief Justice concerned and thereafter by a competent 
judicial forum. In this context, the contentions raised on 
behalf of the learned counsel for the Respondents that 
upon such final crystallization they re-agitated the matter 
of their seniority before the Chief Justice of the Lahore 
High Court is not without force. 
40.  
No doubt, the matter was earlier raised before 
the Chief Justice of the Lahore High Court. However, the 
then Chief Justice Khawaja Imtiaz Ahmed, (as he then 
was) declined to decide the matter. Thus, it cannot be 
said that the impugned judgment is a review of the said 
Order. Even otherwise, final adjudication of such 
Const.P.39 of 2016 
32
disputes is through a judicial adjudication as is being 
finally decided by this Court through the instant 
proceedings.  
It is also a matter of record that the time of making 
of the Oath in February, 2010, no order was passed by 
the then Chief Justice fixing the inter se seniority with 
the consent of the parties. No such document has been 
placed before us or otherwise identified so as to bar or 
preclude the private Respondents from asserting their 
claim of seniority. Furthermore, it is settled law that 
acquiescence is a specie of estoppel. It is equally settled 
law that there can be no estoppel against law much less 
or the Constitution as is apparent from the judgments of 
this Court reported as Mr. Fazlul Quader Chowdhry and 
others v. Mr. Muhammad Abdul Haque (PLD 1963 SC 
486), Pir Sabir Shah v. Shad Muhammad Khan, Member 
Provincial Assembly, N.W.F.P. and another (PLD 1995 SC 
66), Malik Asad Ali and others v. Federation of Pakistan 
through Secretary, Law, Justice and Parliamentary 
Affairs, Islamabad and others (PLD 1998 SC 161), 
Muhammad Mubeen-us-Salam and others v. Federation 
of Pakistan through Secretary, Ministry of Defence and 
others (PLD 2006 SC 602) and Zarai Taraqiati Bank 
Const.P.39 of 2016 
33
Limited and others v. Said Rehman and others (2013 
SCMR 642).  
41.  
The Petitioner is relying upon the Rosters and 
the Seniority Lists periodically issued in violation of the 
law as laid down by this Court. He is thus attempting to 
claim permanent rights on the basis of an illegality or 
illegal orders which too is not permissible in view of the 
law laid down by this Court in the judgments reported as 
The Engineer-in-Chief Branch through Ministry of 
Defence, Rawalpindi and another v. Jalaluddin (PLD 
1992 SC 207), Abdul Haque Indhar and others v. 
Province of Sindh through Secretary Forest, Fisheries 
and Livestock Department, Karachi and 3 others (2000 
SCMR 907), Bashir Ahmed and others v. Deputy District 
Education Officer (M) and others (2005 SCMR 1040), 
Nazir Ahmad Panhwar v. Government of Sindh through 
Chief Secretary, Sindh and others (2005 SCMR 1814), 
and Muhammad Nadeem Arif and others v. Inspector-
General of Police, Punjab, Lahore and others (2011 SCMR 
408). 
In view of the foregoing, there was no legal bar 
prohibiting the Respondents from agitating the matter 
before the Chief Justice of the High Court, which 
Const.P.39 of 2016 
34
culminated in the judgment in their favour which is 
impugned before us. 
At this juncture, reference to Article 255 sub-article 
(2) of the Constitution of 1973 may be appropriate. The 
said provision caters for a situation where it is 
impracticable to make an Oath before a person specified, 
in this behalf, in the Constitution of 1973. In an 
eventuality the Oath can be made before another person 
duly authorized under the said sub-article. This course of 
action was not adopted in the instant case. However, we 
may add, in the past, Article 255(2) of the Constitution of 
1973 has been pressed into service for making of Oaths 
by the Superior Court Judges. However, such occasions 
were not our finest hours. 
42.  
Before parting, we may also add that every 
effort has to be made to ensure that all the persons 
appointed 
make 
their 
Oath 
together 
subject 
to 
unforeseen circumstances. However, no discussion, in 
this behalf, is vested with the Chief Justice to take Oaths 
in batches so as to artificial 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 justiceable.  
Const.P.39 of 2016 
35
43.  
The aforesaid are the reasons of our short 
Order of even date, which is reproduced herein below: 
 
“For the reasons to be recorded later, this 
petition is dismissed.” 
    
 
 
 
 
 
 
      Judge 
 
 
 
 
 
 
 
      Judge 
 
 
 
 
 
 
 
 
      Judge 
 
 
 
 
 
 
Islamabad, the  
 
      Judge 
 
 
 
18th October, 2018 
 
      Judge  
‘APPROVED FOR REPORTING’ 
Mahtab & Safdar/* 
 
 
  
