The chief judge of Pakistan (CJ) Yahya Afridi could agree with four of his brothers judges on the question of the seniority of the judges of the High Court of Islamabad (IHC) after the transfer of three new judges to the Court of high lessons of Punjab, Sindh and Balochistan earlier this month.
However, the Pakistan Attorney General (AGP), Mansoor Awan, does not agree with them as indicated above. He approves the seniority list published by the chief judge of the IHC, Aamer Farooq, according to which judge Sarfaraz Dogar, transferred from the High Court of Lahore (LHC), is now the main judge.
Sources have revealed that in its written position submitted to the Pakistan Judicial Commission (JCP), the AGP said that it did not agree with the concerns raised by judge Yahya Afridi.
AGP Awan, however, said he was differing with the CJ.
He said that the transfer of a high court judge was not temporary; Rather, it is carried out in the public interest, following consultations with the president and the main respective judges of the high lessons. He said that Dogar judge had been invited to express his consent in the public interest, and he accepted the transfer not for personal reasons but in consideration of the greatest good.
He said that the seniority of judge Dogar cannot be placed at the lowest level, and a judge is not considered an official. The rules governing the seniority of civil servants do not apply to judges of the higher judiciary, because the constitution of Pakistan has set distinct terms and conditions for their service.
The AGP argued that the question of the seniority of a judge cannot be raised before the JCP. Instead, it can only be decided on the judicial side through a petition deposited under article 184 (3).
The determination of the seniority of the high court judges is the authority of their respective chief judges, and the JCP cannot question it. Any objection concerning this case can only be raised before the Supreme Court under article 184, paragraph 3, as referenced in the case of judge Farrukh Irfan Khan.
He noted that when a judge is transferred from a high court to another, there is no obligation for them to take an oath, because the Constitution does not make it. There is a clear distinction between a new meeting and a transfer, and under article 202, a judge does not need to take an oath during the transfer.
The AGP said that seniority is determined by the respective chief judge of the High Court. Since the IHC chief judge, Farooq, has finalized the seniority of judge Dogar, he is now conclusive.
He noted that the five judges of the CIH who challenged this case if their representation had been rejected by judge Farooq under article 184 (3).
