ISLAMABAD: The proper mechanism for determining the seniority of judges remained under discussion before the Constitutional Bench of the Supreme Court on Thursday, as it heard an inter-se seniority dispute between judges of the Islamabad High Court.
Heading the five-judge CB, Justice Muhammad Ali Mazhar questioned whether the authority to determine the seniority of superior court judges should lie with the President or the Chief Justice of Pakistan (CJP).
He also recalled how, under civil service procedures, when officers were transferred from the surplus pool to a different department, their seniority started from the bottom in the new department. He wondered whether there was any rule or convention for finalising the seniority of judges or whether it should be compared with civil service rules.
The bench was hearing a joint petition filed by five IHC judges — Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz — pleading that three transferred judges should not be treated as IHC judges until they take a fresh oath under Article 194, read in conjunction with Schedule III of the Constitution.
Justice Mazhar questions who should determine seniority — president or CJP?
Senior counsel Muneer A. Malik, representing the petitioners, argued that the consultation process for transfer of the three judges to the IHC was neither purposive, meaningful, nor consensus-oriented on all relevant aspects. Consequently, he said, the transfers should be struck down.
During the hearing, Justice Shahid Bilal Hassan recalled earlier transfers to the IHC, noting that one such transferred judge was even appointed as chief justice of the IHC. He also asked the counsel whether the judges in those instances had taken a fresh oath upon transfer.
The counsel replied that these transfers occurred after the IHC was re-established under the 18th Amendment, following its abolition by the 2009 SC judgement and subsequent re-establishment through the Islamabad High Court Act, 2010.
The counsel contended that, during the consultation process, the consultees — namely the CJP and the chief justices of the high courts concerned — were not presented with any information or data explaining why Justice Sardar Muhammad Sarfraz Dogar was selected or shortlisted for transfer to the IHC out of a pool of 33 Lahore High Court judges, particularly when he was ranked 16th in seniority.
“You are suggesting as if there was no evidence that any option was afforded to other judges of the LHC to opt for transfer to the IHC,” remarked Justice Salahuddin Panhwar.
The counsel said Justice Dogar’s appointment was not random but premeditated, intended to place him ahead of the senior puisne judge of the IHC in seniority.
“You seem more aggrieved by the transfer of Justice Sarfraz Dogar,” Justice Panhwar observed.
When Justice Mazhar noted that one of the summaries had mentioned that the transferred judges would retain their seniority in the high court to which they were transferred, the counsel clarified that this communication was directed to the prime minister, not the CJP.
The counsel argued that following recent developments in the rules governing the appointment of judges by the Judicial Commission of Pakistan (JCP), the top five judges of a high court now have a legitimate expectancy to become the chief justice. If a seventh-ranked judge is elevated over them, a writ of quo warranto may be filed in the Supreme Court to challenge the appointment.
He contended that the consultees never discussed critical issues such as emoluments or the selection procedure. He cited the example of Justice Muhammad Asif of the Balochistan High Court, who was serving as an additional judge at the time of his transfer. In his case, consent for the transfer was taken from the acting chief justice (ACJ).
When the counsel cited the Al-Jihad Trust case — in which it was held that an ACJ can only perform routine tasks for a limited period and cannot recommend a judge for elevation — Justice Mazhar noted that it made sense, as, at the time, consultations were carried out between the CJP and the President in the absence of the JCP. Now, however, the JCP exists, and every member has an equal vote.
The issue of seniority is critical, the counsel emphasised, because it is not merely about personal satisfaction. He pointed out that there is no law currently in place to fix the seniority of judges.
The hearing was adjourned to Wednesday (May 14).
Published in Dawn, May 9th, 2025
