The Chief Justice Islamabad High Court (IHC) Aamer Farooq on Wednesday issued written order regarding rejection of representation of five judges against revised seniority list after the transfer of three new judges to IHC.
The CJ IHC issued the eight pages written decision and ordered the registrar office to send its copies to the concern judges.
The IHC’s justices including Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahagiri, Justice Babar Sattar, Justice Sardar Ijaz Ishaq and Justice Saman Rafat Imtiaz have filed reservations against the new seniority list of the IHC.
The written decision said, the bare perusal of the notification shows that Mr. Justice Sardar Muhammad Sarfraz Dogar prior to the transfer was serving as a judge of Lahore High Court (LHC, Mr. Justice Khadim Hussain Soomro was serving as judge of High Court of Sindh and Justice Muhammad Asif was serving as judge of Baluchistan High Court. In this regard the said judges took their oath as judges of the respective high courts.
It further said, “The said transfer of the above-mentioned judges has been made under Article 20 of the Constitution under which the President may transfer a judge of a high court from one high court to another but this can only be done with the consent of the judge concerned and after consultation with Chief Justice of Pakistan and the chief justices of the both the high courts.”Pakistani cuisine recipes
It said, “Article 200 of the constitution speaks of the transfer of a judge from one high court to another. The terms appointment and transfer cannot be given the same meaning and have to be treated differently. The decision said, “there was no requirement for the judges transferred to this court to take fresh oath and the same is evident from the bare reading of the notification.”
The decision stated, “In India though the governing Article (Article 222 of the Indian Constitution) is quite different from ours, but the transfer of judges is frequent.”
“It is to be noted that once a judge has taken oath as a judge of the high court he continues to be the judge until he attains the age of sixty two years or is removed or resign or dies or is elevated as a judge of Supreme Court of Pakistan. Thus when a judge is transferred he does not vacate the status and office as a judge of the high court but only to the extent of the office which he had been holding as a judge of the particular high court from which he is transferred.”
The written order said, “The fact that the oath prescribed in the third schedule refers to a particular high court does not mean that at the time of transfer fresh oath of transferee high court is mandated. The judge under transfer continues to be a judge and has the same status and office which he enjoyed prior to transfer.”
It said, unlike India we do not have a transfer policy but since constitution is the specifically provides so, the President of Pakistan can affect the transfer within the mandate of the constitution. No doubt that there is a concept of inter se seniority within the high court but there is also a concept of seniority amongst the judges in different high courts which a judge once appointed shall carry.”
The order read, “In light of the referred fact that after the transfer of judges the inter se seniority in this court changed the revised seniority list was issued based on the constitutional provisions of Articles 194, 196 & 20 of the constitution. The revised seniority list is appended herewith.”
It said, “Due to the reasons mentioned-above the representation in hand is turned down and the seniority list as issued stands. The registrar if directed to forward the copies of the instant decision on representation to the concerned judges.”
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