SC refuses to restrain judges transferred to IHC from working

ISALAMABAD: The Supreme Court (SC) on Monday declined to restrain the judges transferred to Islamabad High Court (IHC) from discharging their duties.

A five-member constitutional bench of the apex court headed by Justice Muhammad Ali Mazhar heard the petitions, filed by six judges of Islamabad High Court (IHC), challenging the transfer of judges from various high courts to the federal high court.

Other members of the bench included Justice Naeem Akhtar Afghan, Justice Shahid Bilal, Justice Salahuddin Panhwar and Justice Shakeel Ahmed.

IHC five judges including Justice Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Riffat Imtiaz had filed a petition in the Supreme Court under Article 184(3) of the Constitution against the transfer of judges to the IHC.

Three judges from Sindh, Balochistan, and Lahore High Courts were transferred to the Islamabad High Court (IHC), drawing severe criticism from the legal fraternity, including five IHC judges who were contesting the seniority criteria. The IHC five judges, who opposed Justice Dogar’s appointment, were of the view the judges transferred from other high courts should take oath anew to reset their seniority.

The five judges had prayed the apex court restrain Justice Sarfaraz Dogar from performing functions as IHC acting chief justice, adding that respondents Justice Sarfaraz Dogar, Justice Khadim Hussain Soomro and Justice Muhammad Asif be restrained from performing any of the judicial and administrative functions as the judges of the IHC.

They had also prayed the apex court declare the acting CJ notification dated 12.02.2025 issued by the President of Pakistan appointing respondent No. 9 (Justice Sarfaraz Dogar) as the acting Chief Justice of IHC contrary to the law as the said respondent could not have been considered a judge of the IHC and consequently set aside the said acting CJ notification.

The petitioners had also requested the apex court to issue a stay order ahead of Judicial Commission of Pakistan (JCP) meeting being held on April 18.

They had made President of Pakistan, Judicial Commission of Pakistan, Registrars Supreme Court, IHC, Lahore High Court, Sindh High Court, Balochistan High Court as well as Justice Sarfaraz Dogar as respondents.

On Monday, the constitutional bench refused to restrain the judges transferred to Islamabad High Court (IHC) from discharging their duties. The court however, issued notices in terms of Order XXVII-A, RULE 1 of the Code of Civil Procedure, 1980 Attorney General for Pakistan and all Advocate Generals of the provinces and advocate general Islamabad for April 17.

The court in its order noted that office has raised objections towards maintainability of the petitions, which will be taken up on the next date of hearing after serving all respondents and law officers.

The court further noted down in its order that subject to all just exception, notice be issued in all stay applications in the titled connected cases for April 17, 2025 at 11:30 am.

The court further noted down in its order that Faisal Siddiqui, learned ASC for the petitioners in CPs 23 & 28/2025, argued that the transfer should not be for an unlimited period of time but the notification of transfer must specify the period of transfer to remain in field.

The order further stated that it was further averred that even after the transfer, the seniority of the judges already performing their duties in the Islamabad High Court should not be affected and the judges who recently joined on the basis of transfer should be at the bottom of the seniority list, and as and when they resume office in their original High Court, their original seniority will be restored in their own High Court.

Earlier during the course of hearing, Munir A. Malik representing the five judges of the Islamabad High Court (petitioners) appeared before the bench.

Justice Muhammad Ali Mazhar, head of the bench observed that they had seven different petitions before them adding that all five judges in the seniority case had also submitted petitions.

Justice Mazhar observed that this case revolves around two key points — one that judges were transferred, two - what will be seniority status of judges adding that one thing is clear that civil service seniority rules will not apply here.

“We need to see if the seniority will follow the old High Court or will the seniority begin afresh from the new High Court after transfer,” Justice Mazhar remarked and asked counsel for the petitioners as to whether his objection was on the transfer or on the change in seniority.

Munir A Malik, counsel for the petitioners, however, replied that they object to both. Justice Mazhar then observed that the judge’s transfer was under Article 200 and asked the counsel to read it out which the counsel read.

Justice Mazhar pointed out that according to the constitution, the judge’s consent is necessary for transfer adding that consent for both High Courts’ Chief Justices concerned is also mandatory while consent of the Chief Justice of Pakistan is also required.

Munir A Malik replied that their objection is that the transfer of the judge can only be temporary. At this Justice Mazhar said that if it were so, the Constitution would have stated it and there’s no mention of temporary or permanent as well.

“The Constitution only says the President of Pakistan may transfer a judge”, Justice Mazhar remarked however, Munir A Malik contended that the President doesn’t have unlimited authority in transferring judges.

The learned counsel for the petitioners further contended that Article 200 on judges’ transfer must be read together with Article 175A on judicial appointments adding that according to the Constitution, all judges should be treated equally.

Justice Muahmmad Ali Mazhar however, observed that the President does have authority to transfer judges adding that if additional benefits were granted during transfer, it would be objectionable.

Justice Mazhar further observed that if the President independently transfers judges, it would raise questions adding that transfers upon the recommendation of the Chief Justice of Pakistan are constitutional.

Justice Naeem Akhtar Afghan while raising questions on the transfer of judges observed that Islamabad High Court was established through an Act. Justice Afghan questioned as to whether the Act provides for judges to be transferred adding that there is no scope for such transfers in the Act.

Justice Afghan asked as to why new judges were not appointed from the respective provinces instead of transferring the existing ones.

Munir A Mlaik replied that the Act only mentions appointment of new judges to Islamabad High Court but does not mention transfers.

Justice Afghan then further inquired as to whether the oath specifies which High Court the judge is swearing in. Munir A Malik replied in affirmative stating that the oath mentions the province. The learned counsel submitted that for Islamabad High Court, the oath mentions Islamabad Capital Territory (ICT).

Justice Muhammad Ali Mazhar observed that they take an oath when appointed as temporary judges, and again when confirmed adding that their seniority is counted from the oath they took as temporary judges. Justice Mazhar explained that the question is, if a new oath is taken, if seniority continues from the previous one.

“If seniority is counted from the new oath, all prior service before transfer would be considered null,” Justice Mazhar remarked.

Hamid Khan, counsel for Lahore High Court Bar Association and Lahore Bar Association, told the court that there is a background behind the transfer of judges to Islamabad High Court as six judges of the Islamabad High Court had written a letter to Chief Justice of Pakistan upon which the CJP took a suo motu notice.

He submitted that transfer was made in this background with mala fide intention. Later, the court adjourned the hearing until April 17.