Early Resignation of Judges of the Higher Judiciary After Qualifying Service:

A Fiscal and Institutional Burden on the Republic

A Legal Commentary on Constitutional Tenure, Presidential Orders and Pension Rules

I. Introduction

A quiet but consequential pattern has emerged within Pakistan’s higher judiciary. A number of High Court Judges, having completed the statutory minimum of five years’ service as a Judge, have either resigned or are reported to have timed their resignations so as to crystallise lifelong pensionary benefits and associated post-retirement privileges.

The phenomenon is not accidental. It arises from the interaction between Article 206 of the Constitution of the Islamic Republic of Pakistan, 1973, paragraph 3 of Part II of the Fifth Schedule, and paragraphs 14 and 15 of the High Court Judges (Leave, Pension and Privileges) Order, 1997 (President’s Order No. 3 of 1997), as authoritatively construed by a five-member Bench of the Supreme Court in PLD 2013 SC 829.

The right of a Judge to resign is constitutionally guaranteed and, in individual cases, may rest upon considerations of conscience, health, personal circumstances, scholarship, or a desire to pursue another professional calling. That right is not in issue.

What is in issue is the structural consequence of the pension framework: five years of service on the Bench can establish entitlement to a substantial lifelong pension, together with associated post-retirement benefits, while the Republic simultaneously bears the cost of appointing and supporting a successor.

In a jurisdiction already facing substantial case pendency and severe fiscal constraints, early resignation after the qualifying threshold is therefore not merely a matter of individual career choice. When it occurs with sufficient frequency, it becomes a recurring charge upon the public exchequer and upon the institutional capacity of the courts.

This commentary examines the constitutional and legal framework governing judicial tenure and resignation, the five-year pension threshold, the leading Supreme Court authority on qualifying service, recent manifestations of the phenomenon, and the fiscal and institutional consequences that may follow.

It concludes with measured reforms designed to preserve judicial independence while better aligning public expenditure on the Bench with a reasonable expectation of sustained judicial service.

II. Constitutional Architecture of Tenure and Resignation

A. Tenure Until Superannuation

Article 195 of the Constitution provides that a Judge of a High Court shall hold office until attaining the age of sixty-two years, unless the Judge sooner resigns or is removed from office in accordance with the Constitution.

Article 179 makes corresponding provision for Judges of the Supreme Court, who ordinarily hold office until attaining the age of sixty-five years.

The constitutional design is therefore one of security of tenure until a prescribed age, rather than a fixed-term appointment of five years.

Significantly, the five-year figure does not appear in the constitutional provisions governing judicial tenure. It appears in the pension provisions of the Fifth Schedule and in the Presidential Orders made pursuant to that framework.

The appointment of a High Court Judge is itself the product of an elaborate constitutional process under Article 175A, involving the Judicial Commission of Pakistan, the Parliamentary Committee and, ultimately, appointment by the President.

Once appointed, a Judge takes the oath prescribed by the Third Schedule, undertaking to preserve, protect and defend the Constitution and to do right to all manner of people according to law.

The constitutional conception is therefore that of judicial office as a continuing public trust—not merely a short qualifying appointment followed by an exit timed to pension eligibility.

B. The Constitutional Right to Resign

Article 206 provides in clear terms:

“A Judge of a High Court may resign his office by writing under his hand addressed to the President.”

No minimum remaining period of service, mandatory notice period, or statutory cooling-off period is prescribed by Article 206.

This simplicity of constitutional exit may be understood as an important safeguard of judicial independence. A Judge should not be compelled to remain in office against conscience merely because the Executive or another institution wishes otherwise.

The constitutional structure consequently creates an important asymmetry:

Entry into judicial office is elaborate and collective; exit is individual and comparatively simple.

That asymmetry is defensible as a matter of constitutional independence. It becomes fiscally significant, however, when combined with a relatively short qualifying period for a substantial judicial pension.

III. The Five-Year Qualifying Service: Law and Precedent

A. The Fifth Schedule

Article 205 provides that the remuneration and other terms and conditions of service of Judges shall be determined in accordance with the Fifth Schedule.

Part II of the Fifth Schedule, concerning High Court Judges, contains the relevant pension provision. Paragraph 3 establishes a pension for a Judge who retires after having completed not less than five years of service as such Judge, with the amount depending upon the length of judicial service and other qualifying service in the service of Pakistan.

The expression “as such Judge” is significant.

It identifies service as a High Court Judge as the relevant qualifying period for the judicial pension framework. Prior public service may have separate pensionary consequences, but it does not necessarily substitute for the statutory period of service as a High Court Judge.

Paragraph 4 further provides for family pension in circumstances prescribed by the Schedule.

The five-year threshold is therefore capable of producing consequences extending beyond the individual Judge to the Judge’s surviving family.

B. President’s Order No. 3 of 1997

Pursuant to the authority contained in Part II of the Fifth Schedule, the President promulgated the High Court Judges (Leave, Pension and Privileges) Order, 1997 (P.O. No. 3 of 1997).

Part III of the Order provides the operative framework for judicial pensions.

Paragraph 14 identifies the circumstances in which pension becomes admissible. Of particular importance is the provision recognising pension entitlement where a Judge has completed the prescribed minimum period of service and subsequently resigns before attaining the retiring age.

The legal effect is important: once the prescribed qualifying service has been completed, resignation before superannuation does not necessarily extinguish pension entitlement.

Paragraph 15 then provides the formula governing the amount of pension, including the seventy-per-cent minimum and subsequent increments, subject to the applicable maximum.

The result is that completion of the qualifying period may transform resignation from a financially consequential loss of pension entitlement into a financially secure exit from judicial office.

That distinction gives the five-year threshold unusual practical significance.

IV. The Supreme Court and the Five-Year Threshold

A. The Earlier Position

For a period, the jurisprudence surrounding pensionary benefits of superior-court Judges generated uncertainty concerning whether the statutory minimum period of judicial service was indispensable.

In Accountant General, Sindh v. Ahmed Ali U. Qureshi (PLD 2008 SC 522), the Supreme Court was understood to have adopted a position that potentially extended pensionary benefits to Judges irrespective of the length of their service as such Judge.

The consequence was significant because it appeared to weaken the statutory distinction between a Judge who had completed the qualifying period and one who had not.

B. PLD 2013 SC 829

The position was subsequently reconsidered by a five-member Bench of the Supreme Court in:

Regarding pensionary benefits of the Judges of Superior Courts from the date of their respective retirements, irrespective of their length of service as such Judges, reported as PLD 2013 SC 829; [2013] PKSC 68.

The Court held that the earlier decision in PLD 2008 SC 522 was per incuriam and restored the requirement of the prescribed minimum period of actual service as a Judge.

The decision therefore re-established the significance of the five-year threshold.

Service as an Additional Judge may count because the constitutional definition of “Judge” encompasses an Additional Judge in relation to a High Court. Nevertheless, the prescribed minimum period must still be satisfied.

Likewise, prior service in the district judiciary may have relevance to other pensionary entitlements under the applicable framework, but it does not automatically substitute for the required period of service as a High Court Judge for purposes of the judicial pension provisions.

The practical consequence is stark:

The difference between resigning immediately before and immediately after completion of the qualifying period may be financially substantial.

The calendar can therefore become a significant factor in determining the economically rational point of departure.

V. Distinguishing the Supreme Court Pension Framework

The pension framework applicable to Supreme Court Judges is not identical to that applicable to High Court Judges.

The Supreme Court Judges (Leave, Pension and Privileges) Order, 1997 (P.O. No. 2 of 1997) contains a materially different structure concerning qualifying service and resignation before superannuation.

The result is that the particular five-year qualifying-and-exit incentive discussed in this commentary is principally a feature of the High Court pension framework.

This distinction is important because the policy question cannot simply be characterised as a general problem concerning all superior-court Judges. The legal architecture differs between the High Courts and the Supreme Court.

VI. The Emerging Trend: Resignation at the Threshold

Recent reporting has brought renewed attention to Judges considering resignation after completion of the minimum qualifying period.

In October 2025, The News reported, citing judicial-administration sources, that certain High Court Judges were considering resignation only after becoming eligible for pension. The reporting described Judges as monitoring the calendar to ensure that any resignation occurred after completion of the minimum qualifying period.

The same reporting indicated that questions had arisen concerning whether pension could be claimed after less than five years of service and referred to the Supreme Court’s clarification concerning the statutory threshold.

A similar calculation reportedly arose in November 2025 concerning Judges of the Islamabad High Court. Contemporary reporting focused on Judges whose appointments had occurred in December 2020 and whose resignations after completion of five years would preserve pensionary and post-retirement benefits.

The significance of these reports lies not in questioning the bona fides of individual Judges but in illustrating how the legal framework can create a predictable financial incentive around a particular date.

More recently, on 3 September 2026, Justice Muhammad Raheel Kamran Sheikh of the Lahore High Court tendered his resignation under Article 206 after having been appointed in May 2021.

His resignation, occurring after more than five years of service and while substantial constitutional tenure remained, illustrates the broader policy question examined in this commentary: what happens when a constitutionally available right of resignation intersects with a pension framework that makes five years a financially significant threshold?

The resignation itself is constitutionally protected. The institutional question concerns the incentive structure created by the pension rules.

VII. Why Early Resignation Can Become a Public-Sector Burden

A. The Public Investment in a Judge

The appointment of a High Court Judge represents a substantial institutional investment by the State.

The process involves constitutional appointments machinery, judicial administration, staff, security, official infrastructure, continuing education and the operational resources necessary for a Judge to discharge constitutional responsibilities.

When a Judge leaves after only the minimum qualifying period, the State must undertake the same institutional process again for the successor.

The public investment therefore does not disappear with resignation.

B. The Potential Double Financial Charge

The fiscal concern becomes more apparent after the pension threshold has been crossed.

The outgoing Judge may become entitled to a substantial pension for life, together with whatever ancillary benefits remain applicable under the governing framework.

At the same time, the vacant judicial office must be filled.

The successor then receives the salary and applicable benefits attached to judicial office.

The Republic may consequently face two continuing expenditure streams:

pensionary expenditure associated with the former Judge; and
full remuneration and institutional expenditure associated with the successor.

The office itself remains singularly occupied, but public expenditure may continue simultaneously in respect of both the former and present office-holder.

Where a Judge leaves many years before the constitutional retirement age, the cumulative fiscal effect can become significant.

VIII. The Hidden Cost: Pendency and Institutional Capital

The financial cost is only one dimension of the issue.

Pakistan’s judicial system faces substantial case pendency. Every period of judicial vacancy potentially affects the disposal of original, appellate and constitutional matters.

A Judge who leaves after five years also takes away accumulated institutional knowledge:

familiarity with the Court’s procedures;
experience with the roster and case-management system;
knowledge of provincial and federal legislation;
familiarity with recurring litigation;
institutional relationships with the Bar; and
experience developed through years of adjudication.

A successor necessarily requires time to develop comparable institutional familiarity.

This creates an institutional opportunity cost that cannot be captured fully by the pension ledger.

There is also a signalling effect.

If five years on the Bench becomes widely perceived as a financially rational point at which to crystallise pension entitlement and pursue another professional path, judicial office risks being perceived less as a long-term constitutional vocation and more as a qualifying stage in a professional career.

Such a perception could eventually influence recruitment, retention and public confidence.

IX. The Opportunity Cost in a Constrained Fiscal Environment

The State operates within finite fiscal resources.

Every recurring expenditure committed to a lifelong judicial pension represents resources that cannot simultaneously be deployed elsewhere.

The same resources might otherwise support:

additional judicial posts;
district-court infrastructure;
digitalisation of court records;
judicial research facilities;
legal-aid programmes;
court automation;
case-management reforms; or
measures aimed at reducing pendency.

This does not mean that judicial pensions are unnecessary or illegitimate.

Quite the opposite: secure pension arrangements are an important component of judicial independence because Judges should not fear financial insecurity after leaving office.

The policy question is narrower:

Is five years of High Court service the appropriate point at which to unlock a pension structure designed to support a judicial career extending potentially to the constitutional retirement age?

X. Judicial Independence Is Not the Issue

It is important to identify what this commentary does not argue.

It does not argue that a Judge who resigns after completing the qualifying period has acted unlawfully.

Article 206 expressly protects the right of a High Court Judge to resign.

Nor does this commentary suggest that pension should be treated as a discretionary bounty that the State may withdraw after entitlement has lawfully accrued.

Nor does it suggest that Judges who resign because of constitutional conscience, institutional disagreement, health, scholarship, or other legitimate considerations should be compelled to remain in office.

The argument is instead institutional.

A pension structure that provides substantial benefits after a relatively short period of judicial service may create a rational economic incentive to treat that period as a natural point of departure.

If such departures become sufficiently frequent, the consequence is a combination of:

continuing pension expenditure + successor expenditure + institutional turnover + lost judicial capacity.

The appropriate response is therefore not to restrict Article 206.

The more constitutionally cautious approach is to examine the pension framework itself.

XI. Comparative and Policy Considerations

Comparative experience suggests that judicial independence does not necessarily require a full career-level pension to vest after only a short period of superior-court service.

India provides an instructive point of comparison. Its legal framework governing High Court Judges has historically employed substantially longer pension-related service requirements, although the precise rules have evolved over time.

The comparison is not presented as a prescription for importing foreign law into Pakistan.

Its value lies in demonstrating that a longer qualifying period can coexist with judicial independence.

Within Pakistan’s own constitutional structure, the President possesses authority concerning the terms and conditions governed by the Fifth Schedule and the relevant Presidential Orders.

Accordingly, policy options may include:

extending the qualifying period for the higher pension formula;
introducing a graduated pension scale;
providing a reduced pension after five years;
increasing pension entitlement progressively with additional years of service; or
distinguishing between core pension rights and discretionary post-retirement facilities.

Any reform must, however, remain within the constitutional boundaries of the Fifth Schedule and the applicable jurisprudence of the Supreme Court.

XII. Recommendations

1. Reconsider the Qualifying Period

The qualifying structure under P.O. No. 3 of 1997 should be reviewed to determine whether five years remains an appropriate threshold for a substantial judicial pension upon resignation before superannuation.

One possible model would be a graded pension structure, under which five years establishes a limited pension entitlement, with meaningful increments for each subsequent completed year and the existing maximum preserved for longer service.

Such a model would reduce the sharp financial discontinuity between the fifth year and the years immediately preceding it.

2. Separate Core Pension From Post-Retirement Perquisites

Core pension and ancillary privileges should be considered separately.

A dignified pension may remain available after a shorter period of service, while benefits such as official transport, dedicated staff, extended protocol or similar facilities could be reserved for Judges who complete a longer period of service or reach the ordinary retirement age.

Such differentiation could produce meaningful fiscal savings without compromising basic pension security.

3. Publish an Annual Judicial Retention and Vacancy Statement

Greater transparency would improve the quality of public policy debate.

An annual statement could disclose, in aggregate:

the number of High Court appointments;
the number of resignations before superannuation;
average years of service before resignation;
the number of Judges crossing the five-year threshold before resignation; and
the estimated continuing pensionary cost associated with early departures.

Such information would permit Parliament, the judiciary, researchers and the public to assess whether the phenomenon is isolated or structural.

4. Do Not Fetter Article 206

Reform should not take the form of restrictions upon the constitutional right to resign.

Requirements for executive approval on the merits of resignation, compulsory service periods, or coercive notice requirements could raise serious constitutional concerns and potentially interfere with judicial independence.

The more appropriate target for reform is the economic incentive created by the pension regime, not the constitutional right of resignation itself.

5. Preserve Recognition of Prior Judicial Service

Any reform should distinguish between Judges appointed directly from the Bar and those elevated after substantial service in the district judiciary.

A Judge who has already devoted a significant portion of a working life to judicial service should not be treated identically to a person entering the higher judiciary without comparable prior judicial service.

A reformed system should therefore preserve appropriate recognition of cumulative judicial service.

XIII. Conclusion

The Constitution of Pakistan establishes a higher judiciary protected by security of tenure, constitutional removal procedures and legally protected remuneration.

That architecture is fundamental to judicial independence.

The five-year qualifying service recognised within the High Court pension framework—and reaffirmed as a meaningful threshold by PLD 2013 SC 829—serves an important protective purpose. It prevents Judges who have completed the prescribed period of judicial service from being deprived of pension merely because they leave office before the ordinary retirement age.

But a qualifying floor need not become a finishing line.

If Judges increasingly regard completion of five years as the economically optimal moment to leave the Bench, the Republic may face a recurring combination of pension expenditure, successor expenditure, institutional turnover and lost judicial capacity.

The answer is not to question the integrity of individual Judges or to restrict their constitutional right to resign.

Nor should the State compromise the financial independence that pension protection provides to the judiciary.

The more measured response is to reconsider the design of the pension incentive itself.

A graded pension structure, a longer period for substantial pension entitlement, and a clearer separation between core pension and discretionary post-retirement privileges could preserve judicial dignity while reducing the incentive for threshold-based departure.

The constitutional right to resign must remain inviolate.

The question is not whether a Judge may leave after five years. The question is whether the State should design its pension system so that five years becomes the financially rational point at which a Judge does so.

That is ultimately a question of constitutional design, institutional sustainability and responsible stewardship of public resources.

Table of Authorities

Constitutional Provisions

Constitution of the Islamic Republic of Pakistan, 1973

Article 175A
Article 179
Article 180
Article 195
Article 205
Article 206
Article 209
Article 260
Third Schedule — Oaths of Office
Fifth Schedule, Part II, paragraphs 2, 3 and 4

Presidential Orders and Other Instruments

High Court Judges (Leave, Pension and Privileges) Order, 1997, President’s Order No. 3 of 1997 — paragraphs 14, 15 and 16.
Supreme Court Judges (Leave, Pension and Privileges) Order, 1997, President’s Order No. 2 of 1997 — paragraphs 15 and 16.

Case Law

Regarding pensionary benefits of the Judges of Superior Courts from the date of their respective retirements, irrespective of their length of service as such Judges, PLD 2013 SC 829; [2013] PKSC 68.
Accountant General, Sindh v. Ahmed Ali U. Qureshi, PLD 2008 SC 522.
Sindh High Court Bar Association v. Federation of Pakistan, PLD 2009 SC 879.

Professional Disclaimer

This commentary is intended for professional and academic discussion. It does not impugn the bona fides, integrity or motives of any individual Judge. Any reference to reported resignations or emerging patterns is directed solely to the institutional and fiscal implications of the applicable legal framework.