No fresh oath required for transferred judges, rules IHC CJ in seniority row

ISLAMABAD, FEB 12 (DNA):In a significant ruling, the Islamabad High Court (IHC) has rejected a representation seeking alterations to the seniority list of judges, affirming that transferred judges do not need to take a fresh oath upon joining a new high court.

The decision, issued by IHC Chief Justice Aamer Farooq, underscores the constitutional provisions that distinguish between the appointment and transfer of judges.

The controversy arose following the transfer of three judges — Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro, and Justice Muhammad Asif — to the IHC on February 1, 2025.

The judges were previously serving in the Lahore High Court, High Court of Sindh, and High Court of Baluchistan, respectively.

The transfer was executed under Article 200 of the Constitution, which allows the president to transfer judges between high courts with their consent and after consultation with the Chief Justice of Pakistan (CJP) and the chief justices of both high courts.

The representation — filed by Justices Mohsin Akhtar Kayani, Tariq Jahangiri, Babar Sattar, Sardar Ejaz, and Saman Rafat Imtiaz — argued that a transferred judge should take a fresh oath upon joining the IHC under Article 194, which would affect his seniority — determined from the date of the oath he takes for the purposes of serving at the said high court.

However, CJ Farooq ruled that the Constitution does not mandate a fresh oath for transferred judges. The judges’ seniority is determined by the date of their initial oath, not the date of transfer or confirmation.

“Upon transfer it is not a fresh appointment but merely transfer and the oath taken by the judge continues and the seniority that he enjoys by virtue of his first oath also is carried in the transferee court,” reads the eight-page order penned by the IHC chief justice.

This decision aligns with previous rulings, including the cases of Justice Muhammad Farrukh Irfan Khan v Federation of Pakistan and Muhammad Aslam Awan Advocate Supreme Court v Federation of Pakistan, which affirmed that seniority is based on the initial oath date.

The judgment also highlighted that the transfer of judges is a common practice, both in Pakistan and India, and does not equate to a fresh appointment.

In India, the transfer of judges is governed by Article 222 of the Indian Constitution, which similarly does not require a fresh oath. The IHC’s decision reinforces the principle that a judge’s tenure and seniority remains intact upon transfer.

“After the transfer of judges the inter se seniority in this court changed the revised seniority list was issued base don the Constitutional provisions of Articles 194, 196 and 200 [….] The revised seniority list is appended herewith”, the verdict adds.

As a result of the ruling, the path for Justice Dogar has been cleared to take over as the next chief justice of the IHC. The incumbent CJ, Farooq, has been elevated to the Supreme Court.

Justice Dogar has become the senior-most judge among the IHC judges, as he took his oath as an LHC judge in 2015.