The President of the Court Justice of Pakistan (CJ) Yahya Afridi could agree with four of his brothers judges on the issue of the seniority of the judges of the Superior Court of Islamabad (IHC) after the transfer of three new judges to the court of The Superior Courts of Punjab, Sindh and Baluchistan earlier this month.
However, Pakistan Attorney (AGP), Mansoor Awan, does not agree with them as reported above. He supports the antiquity list issued by the president of the Supreme Court of IHC Aamer Faooq according to which Judge Sarfaraz Dogar, transferred from the Superior Court of Lahore (LHC), is now the senior judge of Puisne.
The sources revealed that in their written position presented to the Judicial Commission of Pakistan (JCP), the AGP has declared that it does not agree with the concerns raised by Judge Yahya Afridi.
Agp Awan, however, clarified that it differ with the CJ.
He said that the transfer of a judge of the Superior Court is not temporary; Rather, it is carried out in public interest, after consultations with the president and the respective main judges of the higher courts. He said that the judge was asked to express his consent in public interest, and accepted the transfer not for personal reasons but in consideration of the greater good.
He said that the age of Judge Dogar cannot be placed at the lowest level, nor does a judge consider himself an official. The rules governing the age of public officials do not apply to the judges of the Superior Judiciary, since the Constitution of Pakistan has established separate terms and conditions for their service.
AGP argued that the question of the seniority of a judge cannot be raised before the JCP. On the other hand, it can only be decided on the judicial side through a request presented under article 184 (3).
The determination of the antiquity of the judges of the Superior Court falls under the authority of their respective main judges, and the JCP cannot question it. Any objection with respect to this issue can only be raised before the Supreme Court under article 184 (3), as referenced in Judge Farrukh Irfan Khan.
He pointed out that when a judge is transferred from one superior court to another, there is no requirement that they provide a new oath, since the Constitution does not demand it. There is a clear distinction between a new appointment and a transfer, and according to article 202, a judge does not need to make a new oath after the transfer.
AGP stated that antiquity is determined by the respective president of the Superior Court. Since the president of the IHC Farooq has ended the antiquity of Justice Dogar, he is now conclusive.
He pointed out that the five IHC judges who have challenged this issue had their representation dismissed by Judge Farooq under article 184 (3).
