ISLAMABAD: The Supreme Court of Pakistan on Monday declined to issue an immediate restraining order against judges transferred to the Islamabad High Court (IHC), allowing them to continue performing their duties amid a heated legal battle over their seniority status.
The decision came during a hearing conducted by a five-member constitutional bench of the Supreme Court on petitions filed by five IHC judges challenging the seniority of judges transferred from other high courts. The petitioners sought a stay order ahead of the Judicial Commission’s meeting scheduled for April 18, expressing concern that the outcome of the meeting might be influenced by the unresolved seniority matter. However, the apex court refused the request and scheduled the next hearing for April 17.
Notices were issued to all involved parties, including Acting Chief Justice of the Islamabad High Court Justice Sardar Sarfraz Dogar, Justice Khadim Hussain, and Justice Muhammad Asif. The Supreme Court also served notices to the Judicial Commission of Pakistan, the Advocate Generals of the provinces, and the Advocate General for Islamabad.
Justice Muhammad Ali Mazhar, while hearing the case, noted that there are five distinct petitions before the court, all centered on common concerns: whether transferred judges retain their seniority from the original court or start anew at the IHC, and whether the principles of civil service seniority apply to the judiciary. Justice Mazhar clarified that such rules do not apply to the judicial framework.
Senior advocate Munir A. Malik, representing the petitioners, contested both the legitimacy of the transfers and the change in seniority. He argued that under Article 200 of the Constitution, transfers of high court judges should be temporary and must have the judge’s consent. Justice Mazhar, however, stated that Article 200 makes no distinction between temporary and permanent transfers; it only requires consent from the judge, the Chief Justices of both high courts involved, and the Chief Justice of Pakistan.
Justice Mazhar emphasized that a judge’s seniority is determined by the date of their initial oath, and taking a new oath after transfer should not nullify their previous service. He rejected the notion that transferred judges begin a new seniority timeline post-transfer.
The Supreme Court also denied a request to summon detailed records of the judges’ transfers, stating that the existing transfer notifications were already part of the official record. Justice Mazhar asked what new evidence was expected and whether the petition would be withdrawn if the current records proved the process was lawful.
Justice Naeem Akhtar Afghan added further scrutiny by questioning the rationale behind transferring judges instead of appointing new ones directly to the IHC from the relevant provinces. He asked whether the Act that established the Islamabad High Court permits such transfers. Advocate Malik replied that the Act only covers new appointments, not transfers.
When asked about the wording of the judicial oath, Malik confirmed that it specifically includes the name and territorial jurisdiction of the high court, such as “Islamabad Capital Territory” in the case of the IHC.
The case is scheduled for the next hearing on April 17, a day before the Judicial Commission meeting.
