P L D 2025 Supreme Court 516 (PLP)

Arts. 175A, 184(3), 200(1) & 200(2)

Islamabad High Court Act (XVII of 2010), S. 3

Judges from Lahore High Court, Sindh High Court and Balochistan High Court transferred to Islamabad High Court by the President of Pakistan under Article 200(1) of the Constitution

Dispute over seniority between the transferred judges and judges that already existed prior to the transfer

Whether transfer of a Judge of the High Court to another High Court by the President amounted to a fresh appointment?

Held: Powers of the President of Pakistan under Sub-article (1) of Article 200 of the Constitution for the transfer of a Judge of the High Court from one High Court to another High Court and the provisions contained under Article 175A of the Constitution for appointment of Judges to the Supreme Court, High Courts, and the Federal Shariat Court by the Judicial Commission of Pakistan ("JCP") are two distinct provisions dealing with different situations and niceties

Neither do they overlap nor override each other

Article 200 of the Constitution is absolutely not dependent, concomitant, or at the mercy of Article 175A of the Constitution, but is an independent and stand alone provision dealing with the transfer of judges of a High Court (permanently or temporarily) and not the appointment of judges, which assignment has been incontrovertibly conferred to the JCP autonomously in terms of Article 175A of the Constitution

Transfer of a judge by the President of Pakistan by means of Article 200 of the Constitution (permanently or temporarily) cannot be construed as a fresh appointment

Furthermore, the powers of transfer conferred to the President by none other than the framers of the Constitution cannot be questioned on the anvil or ground that if the posts were vacant in the Islamabad High Court, then why they were not filled up by JCP through fresh appointments

Transfer from one High Court to another High Court can only be made within the sanctioned strength, which can only be regarded as a mere transfer and does not amount to raising the sanctioned strength of a particular High Court

Section 3 of the Islamabad High Court Act, 2010 is only germane to the appointment of judges and does not, in any way, mean that a judge can only join the Islamabad High Court through a fresh appointment and not by way of a transfer or, in other words, that Article 200 does not apply to the Islamabad High Court, which interpretation would be against the exactitudes of the Constitution

Neither can Section 3 of the said Act supersede/override a constitutional mandate, nor can it control, nullify, or rescind the powers of transfer that are vested in the President of Pakistan under Article 200 of the Constitution

Thus, for all intents and purposes the transfer of judges by the President of Pakistan, by means of the impugned Notification No. F.10 (2)/2024-A.II, dated 1st February 2025 ("Notification") was within the framework of the Constitution and cannot be declared ultra vires

There was no All Pakistan Cadre/unified or combined seniority list of High Court judges for determining their seniority at the time of transfer, therefore, the terms and conditions of transfer (permanently or temporary) including seniority should have been taken up and mentioned by the President of Pakistan at the time of issuing the Notification of transfer in terms of Article 200 of the Constitution

Supreme Court partially remanded the matter to the President of Pakistan, without upsetting the Notification of transfer, to determine the seniority after examining/vetting the service record of the transferee judges as soon as possible, including the question of whether the transfer was on a permanent or temporary basis

Supreme Court directed that till such time that the seniority and nature of transfer (permanent or temporary) of the transferee judges was determined by the President of Pakistan by means of notification/ order, the Judge already holding the office of Acting Chief Justice of the Islamabad High Court, would continue to perform as the Acting Chief Justice of the Islamabad High Court

Constitutional petitions were disposed of accordingly along with the applications. [Majority view]

Art. 200

Transfer of High Court judges from one High Court to another

Powers of the President of Pakistan

Scope

Exercise of the powers of transfer by the President of Pakistan under Article 200 of the Constitution is not unregulated or unfettered

It is structured on a four tier formula which expounds that no judge shall be transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts

It means that if at the very initial stage, a judge intended to be transferred from one High Court to another High Court refuses the offer/proposal, then obviously the matter ends forthwith

Even in the case of consent, the transfer shall be subject to consultation with two Chief Justices of the High Courts and the Chief Justice of Pakistan, as the paterfamilias of judiciary, who may, during the consultation process, pragmatically ruminate the pros and cons germane to the transfer proposal, including the aspect of public interest, if any

Hence, for all intents and purposes, it is reverberated beyond any shadow of doubt that before exercising the power of transfer, certain inbuilt procedures and mechanisms have to be followed in letter and spirit and the decision, or the right of refusal or primacy, is within the sphere and realm of judiciary and not within the domain of executives

Therefore, it does not in any case compromise the independence of the judiciary for the discernable reason that the decision to accept or reject is exclusively within the hands of the judiciary.

Arts. 2A, 4, 25, 175A, 184(3), 200(1) & 200(2)

Islamabad High Court Act (XVII of 2010), S. 3

Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024, R. 6

Judges from Lahore High Court, Sindh High Court and Balochistan High Court transferred to Islamabad High Court by the President of Pakistan under Article 200(1) of the Constitution

Dispute over seniority between the transferred judges and judges that already existed prior to the transfer

Whether transfer of a Judge of the High Court to another High Court by the President of Pakistan was a temporary appointment?

Held: Three Judges in question who had been transferred to Islamabad High Court (IHC) had been transferred by the President vide impugned notification on permanent basis

Clause (1) and Clause (2) of Article 200, read in conjunction with each other, do not provide for permanent transfer of a Judge of a High Court from one High Court to another High Court, but provide for transfer of a Judge of a High Court from one High Court to another High Court for a period i.e. on temporary basis

Permanent transfer of three Judges to IHC had been made by the President in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution

It had offended Article 175A of the Constitution and had made the same redundant

Process for permanent transfer of three Judges to IHC suffered from concealment of relevant and material facts from the transferee Judges, from the Chief Justices of the Islamabad High Court (IHC), Lahore High Court (LHC), Sindh High Court (SHC), Balochistan High Court (BHC) and from the Chief Justice of Pakistan (CJP)

Process for permanent transfer of three Judges to IHC was also lacking meaningful, purposive and consensus oriented consultation with the Chief Justices of IHC, LHC, SHC, BHC and CJP on all the relevant issues

Process for permanent transfer of three Judges to IHC had been completed in an unnecessary haste, and suffered from mala fide in facts as well as mala fide in law

Transfer had not been made by the President in the public interest

While transferring the three Judges to IHC on permanent basis, the President had failed to apply his independent mind with an objective opinion

Object of proportionate representation of all the Provinces in IHC could have conveniently been achieved by making fresh appointment of Judges from the Provinces by the Judicial Commission of Pakistan (JCP) under Article 175A of the Constitution as Rule 6 of the Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024 binds/mandates the Members of the JCP to ensure proper diversity in terms of region as well as gender and religion, subject to the prescribed criteria

Transfer of Judges in the present case was violative of Articles 2A, 4 and 25 of the Constitution and it had undermined the independence of judiciary, due process and principle of equality

Impugned Notification No.F.10(2)/2024-A.II dated 1st February 2025 issued by the Secretary, Ministry of Law and Justice, Government of Pakistan, whereby in exercise of powers conferred by Clause (1) of Article 200 of the Constitution, the President of Pakistan had transferred one Judge each from the Lahore High Court, High Court of Sindh and High Court of Balochistan to Islamabad High Court, was declared null and void and of no legal effect

Constitutional petitions were allowed. [Minority view]

Art. 200

Transfer of High Court judges from one High Court to another

Powers of the President of Pakistan

Scope

Clause (2) of Article 200 of the Constitution is subservient to Clause (1) of Article 200 of the Constitution and both are interconnected

According to the doctrine of harmonious construction, while interpreting Clause (1) and Clause (2) of Article 200 of the Constitution, both the clauses have to be harmonized and, being consistent with each other, have to be read in conjunction with each other for giving effect to both without creating conflict or absurdity.

If a case can be decided on other or narrower grounds, the court will abstain from deciding a larger constitutional question than what is necessary for the determination of the case.