Islamabad:
The leader of a constitutional bench (CB), which heard petitions filed against the transfer of three judges to Islamabad High Court (IHC) and a subsequent change in the Judges’ Seniority List, has noticed that it is first of its kind.
During the hearing of the case, justice Muhammad Ali Mazhar agreed with a lawyer for one of the petitioners, lawyer Salahuddin, that there is no precedent in the past of a permanent transfer of one judge from one Supreme Court to another. “This is the first case of its kind involving such a transfer,” he said.
Earlier, lawyer Salahuddin claimed that a judge’s seat cannot be vacated through a transfer, and a permanent transfer would make Article 175-a of the Constitution ineffective.
Article 175a establishes the Legal Commission for Pakistan (JCP), which is responsible for appointing judges by the Supreme Court, high courts and the federal Shariat court.
He said that under Article 200, only temporary transfers are allowed and permanent agreements can only be made by JCP.
Justice Mazhar noticed that, under Article 175-A, new agreements can be made, adding that “appointment” and “transfer” have different meanings.
Salahuddin said that a meaningful consultation is important in any judicial transfer and without it the whole process is a pure formality. He claimed that information was hidden and inaccurate details were given during the transfer of three judges to IHC in February this year.
Justice Mazhar said the case involves the interpretation of constitutional and legal points. He noted that three managerial dishes were involved in the transfer process and not everything was in the hands of the exercise. The consent of the transferred judge is also obtained, he added.
Salahuddin referred to Civil Service rules in which they said that when two people are appointed on the same day, seniority is determined by date of birth – a principle that SC has maintained in a previous referral.
He also cited the Aslam Awan case, which called for clear rules for court. Attorney General for Pakistan (AGP) Mansoor Awan stated that when SC defines a principle, the rules will follow.
Salahuddin requested that the Supreme Court decided the case based on civil service rules, earlier precedent and the principle of gender equality.
Justice Mazhar asked what will be of a judge’s previous service if he takes a new oath after his transfer from one Supreme Court to the other. “In India, even if a judge takes five oaths upon transfer, their purposeful seniority remains unaffected,” but Pakistan does not have a “all Pakistani cadres”.
He said the court raises questions for the sake of clarity and informed judgment, and noted that when a Supreme Court’s judge is raised to SC, their final pay certificate reflects 11 or 12 years of service.
Salahuddin replied that although benefits and pension would be preserved, the judge’s seniority would be reset. He called on the right to consider the impact on the sitting judges of the court who received the transferred judge.
That would be unfair, he said, for a judge who was placed 16. IHC functioning Chief Justice Sardar Muhammad Sarfraz Dogar, one of the judges transferred to IHC in February, ranked 16 in the Lahore High Court.
Justice Mazhar reiterated that no such objections were raised by the Lahore High Court judges and instructed the lawyer to stick to questions related to IHC. He added that if arguments conclude before June 16, the court may issue a brief order after consultation with judges on the same day.
Barrister Salahuddin requested the case to be heard until the next day. Justice Naeem Akhtar Afghan noted that some judges on the bench would not be available. Justice Salahuddin Panhwar commented that counter -movement arguments may include questions. The consultation was postponed until 1 p.m. 9.30 am of June 16th.
