ISLAMABAD: A writ petition filed in the Islamabad High Court has challenged the Judicial Commission of Pakistan’s (JCP) April 28 decision that vacancies arising from the transfer of a judge “shall be filled through transfer only”, arguing that the three vacant judges’ seats in the IHC should be filled through fresh appointments under the Constitution rather than further transfers.

The petition, filed by Advocate Supreme Court Syed Nayyab Hassan Gardezi against the Federation of Pakistan, JCP, president and prime minister, contends that the impugned decision has no constitutional foundation and conflicts with Article 175A(8), which requires the commission to nominate one person “for each vacancy” of a high court judge. It argues that the Constitution recognises no category of high court vacancy exempt from this requirement and that the commission cannot create one through a resolution.

The petition contends that the JCP decision was taken in disregard of the procedure prescribed by the Judicial Commission of Pakistan (Appointment of Judges) Rules 2024. It points out that Rule 11(2) requires the secretary to notify all members at least 14 days before a scheduled meeting, providing the agenda and supporting materials. According to the petition, the impugned decision was reportedly introduced during the proceedings rather than being included in the circulated agenda.

It further states that the JCP Rules, as notified, contain no provision for their amendment, while the only provision allowing the commission to remove difficulties — Rule 15 — requires the votes of at least two-thirds of its total membership. The impugned decision, however, records only a “majority of its total membership”.

The petition also questions the composition of the JCP when the decision was taken. It argues that the impugned decision governs future appointments to the IHC, yet it was taken at meetings convened to consider transfers, at which the commission sat under the first proviso to Article 200(1), with the chief justices of the high courts concerned in each transfer.

By contrast, the Constitution prescribes a distinct composition for the appointment of IHC judges under Article 175A(6). Besides the IHC chief justice, it includes the head of IHC’s constitutional benches, an advocate nominated by the Islamabad Bar Council and a federal minister nominated by the prime minister.

The petitioner submits that procedural and compositional defects reinforce the need for the IHC’s three vacancies, created by the transfers notified on April 29, 2026, to be filled through the constitutional process of fresh appointments. For this purpose, nominations should be invited from members of the commission under Article 175A(23) and Rule 9(1) of the JCP Rules, rather than through a transfer-only route.

The petition also challenges the decision on grounds of discrimination, retrospectivity and an unlawful fetter on discretion. It notes that in July 2026, the JCP filled vacancies in the Lahore High Court, Sindh High Court and Baloc­histan High Court through initial appointments, while the IHC’s vacancies have been reserved for transfers.

It emphasises that the IHC is currently functioning with a chief justice and nine judges against a sanctioned strength of a chief justice and 12 judges, and that the three vacancies have remained unfilled for more than five months.

Along with the writ petition, the petitioner has filed an application for interim relief, seeking to restrain the respondents from recommending, advising or notifying the transfer of any judge to the IHC against the three vacancies while the petition remains pending.

The petition seeks a declaration that the JCP’s decision is ultra vires Articles 4, 25, 175A and 193 of the Constitution and the JCP Rules, and is of no legal effect.

Published in Dawn, October 21st, 2026