AGP clarifies position on IHC seniority

Endorses IHC chief justice's authority to decide seniority

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Chief Justice of Pakistan (CJ) Yahya Afridi might agree with four of his brother judges on the question of the seniority of the Islamabad High Court (IHC) judges after transfer of three new judges to the court from high courts of Punjab, Sindh and Balochistan earlier this month.

However, the attorney-general for Pakistan (AGP), Mansoor Awan, does not agree with them as earlier reported. He endorses the seniority list issued by IHC Chief Justice Aamer Farooq according to which Justice Sarfaraz Dogar, transferred from the Lahore High Court (LHC), is now the senior puisne judge.

Sources revealed that in his written stance submitted to the Judicial Commission of Pakistan (JCP), the AGP has stated that he does not agree with the concerns raised by Justice Yahya Afridi.

AGP Awan, however, clarified he differed with the CJ.

He said the transfer of a high court judge is not temporary; rather, it is carried out in the public interest, following consultations with the president and the respective chief justices of the high courts. He said Justice Dogar was asked to express his consent in the public interest, and he agreed to the transfer not for personal reasons but in consideration of the greater good.

He said Justice Dogar's seniority cannot be placed at the lowest level, nor is a judge considered a civil servant. The rules governing civil servants' seniority do not apply to judges of the superior judiciary, as the Constitution of Pakistan has set separate terms and conditions for their service.

The AGP argued that the issue of a judge's seniority cannot be raised before the JCP. Instead, it can only be decided on the judicial side through a petition filed under Article 184(3).

The determination of high court judges' seniority falls under the authority of their respective chief justices, and the JCP cannot question it. Any objections regarding this matter can only be raised before the Supreme Court under Article 184(3), as referenced in the Justice Farrukh Irfan Khan case.

He noted that when a judge is transferred from one high court to another, there is no requirement for them to take a new oath, as the Constitution does not mandate it. There is a clear distinction between a new appointment and a transfer, and under Article 202, a judge does not need to take a fresh oath upon transfer.

The AGP stated that seniority is determined by the respective chief justice of the high court. Since IHC Chief Justice Farooq has finalized Justice Dogar's seniority, it is now conclusive.

He noted that the five IHC judges who have challenged this matter had their representation dismissed by Justice Farooq under Article 184(3).