• Seniority concerns cannot override constitutional transfers, holds Justice Mazhar
• Justice Panhwar suggests creating unified seniority list of all high court judges

ISLAMABAD: Justice Muhammad Ali Mazhar on Thursday ruled that the transfer of a judge from one high court to another under Article 200(1) of the Constitution cannot be declared “against the public interest” merely because it affects the seniority of a few existing judges.

“The best interest of public at large is always with the expeditious disposal of their cases and not in forum shopping,” emphasised Justice Muhammad Ali Mazhar in a detailed judgement.

Justice Mazhar had presided over the Supreme Court’s five-judge Constitutional Bench that heard a joint petition by five Islamabad High Court (IHC) judges — Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz — who had argued that three transferred judges, including IHC Chief Justice Sardar Muhammad Sarfraz Dogar, should not be treated as IHC judges until they took a fresh oath under Article 194, read with Schedule III of the Constitution.

Justice Mazhar observed that the Islamabad High Court Bar Association (IHCBA) had also filed a petition, initially fixed along with these petitions, but later withdrew it on April 17. This, he said, clearly showed that the parent bar association accepted the transfer of judges and did not consider it contrary to public interest or judicial independence.

Article 200 of the Constitution makes it clear that “public interest” is not a precedent or a hard and fast rule and the pros and cons are left to the consultees to decide, being the sole arbiters in terms of the relevant constitutional article.

Had the consultees felt that a proposed transfer was politically motivated, mala fide, or against public interest, they could have withheld consent during the consultation process. However, in this case, Chief Justice of Pakistan (CJP) Yahya Afridi and other chief justices of the high courts gave their unanimous assent.

“All the transfers were by consensus, and no transferee judge approached this court to claim that his transfer was made without consent, under duress, or for punitive or political reasons,” Justice Mazhar observed, adding that the CJP’s concurring note even applauded the transfer.

Nothing was articulated, Justice Mazhar noted, to explain how the transfers adversely affected public interest. “Has the IHC’s working come to a halt? Have the transferee judges failed led to perform their duties? Has the court stopped functioning?” he wondered.

On the issue of seniority, Justice Mazhar clarified that such disputes fall within the administrative authority of the high court’s chief justice. Whether the transfer was permanent or temporary, this should be specifically mentioned in the notification of transfer.

In a separate note, Justice Salahuddin Panhwar proposed the creation of a unified national seniority list of all high court judges. This list, he suggested, should be maintained and annually notified by the president’s office in consultation with the CJP, to apply specifically to IHC transfers, subject to the principle of diversity. Such a reform, he argued, would ensure transparency, equality and consistency in judicial administration and matters of elevation.

Published in Dawn, September 26th, 2025