The Islamabad High Court (IHC) on Monday dismissed a plea against the extension in service of the Chief of Army Staff (COAS) General Ashfaq Pervez Kayani by declaring it non-maintainable, while observing that no order can be passed by the High Court against a serving member of the Armed Forces of Pakistan under Article 199(3) of the Constitution.
A single member bench comprising of Chief Justice (CJ) Iqbal Hameed-ur-Rehman, in its order quoted Article 199(3) of the Constitution: “An order shall not be made under clause (1) on application made by or in relation to a person who is member of the Armed Forces of Pakistan, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed forces or as a person subject to such law”.
The IHC CJ also cited a judgment of the Supreme Court related to an instant matter in the case of Ex-Lt Col Anwar Aziz versus the Federation of Pakistan.
The verdict said, “This court can interfere only in extraordinary cases involving question of jurisdictional defect when proceedings before that forum become non-judicial or mala fide. The matters relating to the members of the Armed Forces or who for the time being are subject to any law relating to any of these Forces in respect of terms and conditions of service or in respect of any action taken in relation to him as member of Armed Forces or as a person subject to such law, is barred by Article 199(3) of the Constitution.”
The CJ resumed the hearing of the plea filed by Inam-ul-Raheem which termed the extension of General Kayani as unconstitutional and illegal.
Earlier during the course of proceedings, petitioner Raheem argued that the extension granted to the COAS was illegal because under the Pakistan Army Act 1952, there was no provision of extension in service; that respondent had crossed the age of 60 years, as such, he was not a member of the Pakistan Army.
He contended that under Article-243 of the Constitution, the President of Pakistan could not change the tenure of service of the COAS and as per the Army Act. The COAS retired on attaining the age of superannuation. He had prayed to the court to declare the extension of the COAS as illegal and unconstitutional.
