IHC petition challenges judicial commission's transfer-only rule for vacancies

A writ petition in the Islamabad High Court (IHC) has challenged a decision by the Judicial Commission of Pakistan (JCP) that vacancies created by the transfer of a judge “shall be filled through transfer only”, Dawn reported. It argues that the IHC’s three empty seats should instead be filled through fresh appointments under the Constitution.

The petition was filed by Advocate Supreme Court Syed Nayyab Hassan Gardezi against the federation, the JCP, the president and the prime minister. It challenges the commission’s decision of April 28.

“One person for each vacancy”

The petition says the decision has no constitutional basis and conflicts with Article 175A(8), which requires the commission to nominate one person “for each vacancy” of a high court judge. It argues that the Constitution recognises no category of high court vacancy exempt from this rule, and that the commission cannot create one.

Procedure and numbers

The petition also attacks how the decision was made:

• Agenda: Rule 11(2) of the JCP (Appointment of Judges) Rules 2024 requires members to be notified at least 14 days before a meeting, with the agenda and supporting material. The petition says the decision was introduced during the proceedings rather than being on the circulated agenda.
• Voting: The rules contain no provision for their own amendment, and the only clause allowing the commission to remove difficulties, Rule 15, needs the votes of at least two-thirds of its total membership. The decision records only a “majority of its total membership”.
• Composition: The decision governs future appointments to the IHC, yet it was taken at meetings called to consider transfers. In those meetings the commission sat with the chief justices of the high courts involved in each transfer. For IHC appointments, Article 175A(6) prescribes a different composition, including the IHC chief justice, the head of its constitutional benches, an advocate nominated by the Islamabad Bar Council and a federal minister nominated by the prime minister.

Unequal treatment

The petition also challenges the decision on grounds of discrimination, retrospectivity and an unlawful restriction on the commission’s discretion. It notes that in July 2026 the JCP filled vacancies in the Lahore, Sindh and Balochistan high courts through first-time appointments, while keeping the IHC’s vacancies for transfers.

The IHC is currently working with a chief justice and nine judges against a sanctioned strength of a chief justice and 12 judges. The three vacancies, created by transfers notified on April 29, 2026, have been empty for more than five months.

The petitioner says nominations for these seats should be invited from commission members under Article 175A and Rule 9(1) of the JCP Rules, rather than through a transfer-only route.

What the petition asks for

Alongside the main petition, an application for interim relief asks the court to stop the respondents from recommending, advising or notifying the transfer of any judge to the IHC against the three vacancies while the case is pending.

The petition seeks a declaration that the JCP decision goes beyond the powers given by Articles 4, 25, 175A and 193 of the Constitution and the JCP Rules, and has no legal effect.