JUSTICE MOHSIN AKHTAR KAYANI, JUDGE vs The PRESIDENT OF PAKISTAN, PAK SECRETARIAT, ISLAMABAD arts

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JUSTICE MOHSIN AKHTAR KAYANI, JUDGE VS The PRESIDENT OF PAKISTAN, PAK SECRETARIAT, ISLAMABAD 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]

JUSTICE MOHSIN AKHTAR KAYANI, JUDGE vs The PRESIDENT OF PAKISTAN, PAK SECRETARIAT, ISLAMABAD arts — 2025 PLD 516 SUPREME-COURT

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