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• Plea seeks reversal of judges’ transfer, acting CJ Dogar’s appointment, reconstitution of administrative panels
• Points out that new judges cannot be considered part of IHC until they take oath; unified judicial cadre does not exist
• Petitioners claim transfer invokes Article 200 for ‘extraneous reasons’, usurps JCP powers
ISLAMABAD: Five sitting judges of the Islamabad High Court (IHC) on Thursday became litigants, petitioning the Supreme Court to resolve the controversy surrounding their seniority in the high court following the transfer of new judges from other provinces.
In the plea moved by senior counsel Muneer A. Malik, the petitioners asked the apex court to restrain judges transferred to the high court from performing judicial and administrative functions.
The petition, filed under Article 184(3) of the Constitution, also requested the Supreme Court to declare that Acting Chief Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro, and Justice Muhammad Asif cannot be considered judges of IHC until they have taken a fresh oath in accordance with Article 194, read in conjunction with the Third Schedule of the Constitution. The petition will be placed before the Constitutional Bench for adjudication once it is taken up for hearing.
According to the petition, in line with the settled law established by the Supreme Court in the cases of Aslam Awan and Farrukh Irfan, the inter se seniority of the transferred judges should be determined from the date they took oath as justices of the IHC. Consequently, they will be placed lower in the seniority list than the petitioner judges.
The petition also requested the apex court to declare illegal the Feb 8 decision on similar representation by then-IHC chief justice Aamer Farooq and contrary to the settled law established by the Supreme Court. Consequently, the Supreme Court should set aside the decision on representation and the seniority list of Feb 3.
According to the plea, the Judicial Commission of Pakistan (JCP) wrongfully considered a defective seniority list of the IHC
judges during its Feb 10 meeting, wherein the transferred judges were erroneously considered for elevation to the Supreme Court. It also asked to declare the Feb 12 notification by President Asif Ali Zardari appointing Justice Dogar as the acting CJ unlawful.
The petition also sought a direction that the IHC registrar should issue a revised seniority list in accordance with the declarations made by the Supreme Court. It said the reconstitution of the Administration Committee and the Departmental Promotion Committee was contrary to the law, established conventions, and judicial norms.
The petition pleaded that the transfer notification, the seniority list, and the decision on representation were issued in violation of Article 200(1) of the Constitution since the provision only provided for a temporary transfer for a limited time period without affecting the inter-se seniority of the judges in the high court to which the judges were transferred.
The petition claimed it was apparent that invocation of Article 200(1) was for “extraneous reasons” and the transfer notification was in contravention of Article 175A of the Constitution. It also mentioned that the president exercised his powers in a manner that usurped the power of the JCP, a collegiate body, that appoints judges to the IHC.
The seniority list and decision on representation are liable to be set aside for being in violation of Article 194 read with the Third Schedule of the Constitution.
As per the petition, the transferred judges took oath with respect to the respective high courts and the Constitution does not treat these oaths taken for the purposes of serving at a particular province or the Islamabad Capital Territory, interchangeably.
“Therefore, treating them as judges of IHC without taking oath and reflecting their seniority on the basis of the oath they took in their respective high courts is in violation of the Constitution and the law,” the petition argued.
Besides, the seniority list and decision on representation have been issued in contravention of the established law by the Supreme Court that seniority for a particular high court begins from the date the oath is made for the purposes of serving at the particular high court, the petition said.
The transfer notification, seniority list, decision on representation, and the acting CJ-IHC notification have been issued in derogation of IHC’s status as an autonomous, independent apex high court for the purposes of ICT, the petition pleaded.
Judges from other high courts, having sworn an oath to serve in the respective territorial jurisdictions, have been granted jurisdiction to exercise judicial functions with respect to ICT, the petition regretted, adding that a transferred judge, without even having served at IHC for more than two weeks, has been made acting CJ. In him has been vested the administrative control of the IHC as well, the petition regretted.
These notifications and the list have been issued under a mistaken conception that there is a unified federal judicial cadre in Pakistan, the petition highlighted, adding that no such unified judicial cadre existed. In fact, this whole idea of a unified judicial service at the high courts undermined the conception of federalism undergirding the Constitution, the petition said.
Published in Dawn, February 21st, 2025
