ISLAMABAD: In a landmark decision, the Islamabad High Court (IHC) has ruled that judges transferred from one high court to another retain their seniority based on the date of their initial oath, eliminating the need for a fresh oath upon transfer.
The ruling, delivered by IHC Chief Justice Aamer Farooq, reaffirms the constitutional distinction between the appointment and transfer of judges, dismissing arguments that a transferred judge must take a new oath, which could affect their seniority.
Background of the Case
The issue arose after the transfer of three judges to the IHC on February 1, 2025:
- Justice Sardar Muhammad Sarfraz Dogar (from Lahore High Court)
- Justice Khadim Hussain Soomro (from Sindh High Court)
- Justice Muhammad Asif (from Balochistan High Court)
Their transfer was made under Article 200 of the Constitution, which allows the president to transfer judges between high courts with their consent, after consultation with the Chief Justice of Pakistan (CJP) and the respective chief justices of both the sending and receiving high courts.
Challenge to Seniority and the IHC Verdict
A representation was filed by Justice Mohsin Akhtar Kayani, Justice Tariq Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz, and Justice Saman Rafat Imtiaz, arguing that:
✅ A transferred judge should take a fresh oath under Article 194.
✅ Seniority should be determined from the date of the new oath at the new high court.
However, CJ Aamer Farooq rejected the argument, ruling that:
✔ Transfer is not a fresh appointment; the oath taken by a judge remains valid.
✔ Seniority is based on the initial oath date, not the transfer date.
Legal Precedents and International Practice
The decision aligns with previous cases such as:
- Justice Muhammad Farrukh Irfan Khan v. Federation of Pakistan
- Muhammad Aslam Awan Advocate Supreme Court v. Federation of Pakistan
Additionally, the judgment notes that India follows a similar practice under Article 222 of its Constitution, which also does not require a fresh oath upon the transfer of judges.
Impact of the Decision
- Justice Dogar is now the senior-most judge of IHC, as he took his oath as an LHC judge in 2015.
- His path is now clear to become the next Chief Justice of the IHC, following the elevation of CJ Aamer Farooq to the Supreme Court.
With this ruling, the seniority structure of the IHC has been revised, ensuring continuity and stability in judicial appointments.
