• Petitions on seniority to be heard on 17th, a day before JCP meets to appoint acting CJs across various high courts
• Bench, counsel debate whether Constitution allows for temporary transfer or permanent appointment of judges from other jurisdictions
• Even after such transfers, seniority of already serving judges should remain unaffected, petitioners argue

ISLAMABAD: The Sup­reme Court’s Constitu­tional Bench, on Monday, dismissed a plea seeking an interim order against the appointment of Justice Sardar Muhammad Sar­fraz Dogar as acting Chief Justice of the Islamabad High Court (IHC).

However, the court scheduled the next hearing on a set of petitions challenging the inter-se seniority of five IHC judges for April 17 — just a day before a Judicial Commission of Pakistan (JCP) meeting is expected to confirm the appointments of acting CJs across various high courts.

Senior counsel Muneer A. Malik, representing five IHC judges, had requested the constitutional bench to issue an interim order against the notification appointing Justice Sarfraz Dogar as acting IHC CJ, arguing that it would impact the upcoming JCP meeting scheduled for April 18.

However, the five-member CB, headed by Justice Muhammad Ali Mazhar, declined the request and instead issued notices to the respondents, including the three judges transfe­rred to the IHC — Justices Sarfraz Dogar, Khadim Hussain Soomro and Muh­ammad Asif — as well as the JCP, registrars of the Supreme Court and four high courts and Attorney General for Pakistan (AGP) Mansoor Usman Awan, under Section 27A of the Civil Procedure Code (CPC). Notices were also issued to the advocates general for different provinces.

The CB fixed April 17 as the next hearing date, just a day ahead of the JCP meeting, with an observation that points raised in the petitions require consideration and the bench is more interested in deciding constitutional questions. The CB also decided to take up during the next hearing the court office’s objections to the maintainability of these petitions.

Although the CB was dealing with seven different petitions, it exercised its discretion to treat the appeal filed by the five sitting IHC judges as the lead petition. The bench noted that this appeal was filed in person, directly challenging the disruption of the judges’ original seniority prior to their transfer. The remaining petitions will proceed concurrently.

Muneer A. Malik and Salahuddin Ahmed had jointly moved the petition on behalf of the IHC judges — Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz — with a plea not to treat the three transferred judges as IHC judges until they take a fresh oath in accordance with Article 194, read in conjunction with the Third Schedule of the Constitution.

The counsel argued that the transfer of judges to the IHC from other high courts under Article 200(1) of the Constitution undermines the appointment procedure of the judges in the superior judiciary under Article 175, as well as the concept of federalism, independence of judiciary, role of the JCP in elevating judges, Schedule III of the Constitution dealing with the oath of judges, and the autonomy of high courts.

They emphasised that Article 200(1) cannot be treated as a standalone provision which could be read in isolation.

At this point, Justice Mazhar reminded the counsel that, prior to a judge’s transfer, the consent of the judge concerned is obtained, followed by the approval of the chief justices of both the high court from which the judge is being transferred and the high court to which the judge is being assigned, along with the consent of the Chief Justice of Pakistan (CJP).

The counsel argued that Article 200(1) allows for the temporary transfer of judges, not permanent appointments, asserting that any other interpretation would be inconsistent with Article 175.

But Justice Mazhar observed that Article 200 does not mention anything regarding temporary or permanent.

The counsel contended that Article 200(1) does not confer unbridled or absolute power to the president to transfer judges without any rhyme or reason. Besides, as held in the Al-Jihad and Sharaf Faridi cases, the exercise of such powers should be guided with public interest for ensuring administration of complete justice.

“We cannot shut our eyes to ground realities and the backdrop against which these transfers were made,” the counsel contended. They also reminded that one of the judges transferred to the IHC was appointed first as additional judge of the Balochistan High Court a few days before his transfer to the IHC without telling what expertise that judge possessed.

Obviously, that judge must be at the bottom of IHC seniority, observed Justice Mazhar.

The counsel argued that, in the case of a transfer, the judges being transferred are required to take a fresh oath before assuming office at the IHC, citing Article 194 of the Constitution. They emphasised that this crucial requirement of administering a fresh oath has not been fulfilled in the present case.

The counsel requested the court to resolve the issue of seniority, stating that five IHC judges had submitted a representation to the then IHC chief justice, which was dismissed on Feb 8 without due consideration. As a result, the seniority list compiled following the rejection of that representation is flawed and should be set aside. The counsel argued that the original seniority must be restored.

Justice Naeem Akhtar Afghan questioned whether judges of high courts are required to take a specific oath of office upon their appointment to a different high court. He also inquired about the sanctioned strength of the IHC, expressing concern over how many judicial positions were vacant prior to the issuance of the transfer notification, and why the JCP did not fill those vacancies beforehand.

Senior counsel Faisal Siddiqi, representing the Lahore High Court Bar Association, argued that judicial transfers should not be indefinite and that the transfer notification must clearly specify the duration for which it remains valid.

It was further contended that even after such transfers, the seniority of judges already serving in the IHC should remain unaffected. Judges who have recently joined the IHC on the basis of transfer should be placed at the bottom of the seniority list, and upon resuming their duties in their original high court, their seniority should be restored accordingly.

Published in Dawn, April 15th, 2025