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. 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]

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

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