Dr. Zahid Javed vs Pop etc.

Dr. Zahid Javaid Province of Punjab etc 15.08.2014. Mr.Khalid Mian Advocate for petitioner. Ms.Asma Hamid, AAG on Court’s call.

Through this petition, transfer order dated 12.08.2014 passed by respondent No.2 has been assailed.

2.Learned counsel for the petitioner contends that petitioner who was working as Conservator of Forests, Gujranwala Circle, Gujranwala, has been transferred and directed to report to his Administrative Department without any complaint or reason. He further contends that order of transfer has been passed by an incompetent authority and that too without any further posting/assignment; therefore, it is not sustainable. He alleges malafide and injustice. He is of the view that in the garb of this transfer order, petitioner has been posted as Officer on Special Duty (“OSD”) which is not mandated by law. He places reliance on Suo Motu Case No.24 of 2010:In the matter of (Regarding Corruption in

hajj Arrangements in 2010) (2014 SCMR 484), Syed Mehmood Akhtar Naqvi and others Vs Federation of Pakistan and others (2013 SCMR 1), Muhammad Saleh Asim Vs Secretary Schools Education, Government of Punjab, Lahore and 4 others (2009 PLC(CS) 44), Secretary, Revenue Division and others Vs Muhammad Saleem (2008 SCMR 948) and Syed Ajmal Hussain Bokhari VS Commissioner, Rawalpindi (1997 PLC(CS) 754) to substantiate his above contentions.

3.Learned Law Officer appearing on Court’s call has raised a preliminary objection that transfer and posting is part of terms and conditions of service of a civil servant, therefore, writ petition is not maintainable. She has placed reliance on Ayaz Anjum Vs Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169).

4.Replying to the preliminary

objection, learned counsel for the petitioner has placed his reliance on the above quoted judgments to submit that the Hon’ble Supreme Court of Pakistan in apt cases has opened a window for this Court to interfere in such matters.

5.I have heard the learned counsel for the petitioner as well as the learned Law Officer and have gone through the available record.

6.Article 199 of the Constitution of Islamic Republic of Pakistan (“Constitution”) open with the words “subject to the Constitution,” whereas Article 212 of the Constitution starts with the words “not withstanding anything herein before contained.” Furthermore, Article 212 ibid clearly stipulates that for enforcement of terms and conditions of service of a civil servant, Administrative Courts or Service Tribunals established under the said Article which have exclusive jurisdiction, therefore, Article 212 ibid being a non obstante Article shall have an overriding effect over Article 199 of the Constitution. This cannot be argued that under Article 199 of the Constitution High Court has inherent power of judicial review of an administrative action. Article 175 of the Constitution elaborates the same wherein the words used are that “no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.”

Power of a court, of judicial review stems out of

the jurisdiction conferred on a court. In view of the overriding effect of Article 212 of the Constitution which gives exclusive jurisdiction to the courts or tribunal established under the said Article regarding terms and conditions of service of a civil servant, jurisdiction of this Court is clearly ousted. For reference, reliance can be placed on Khalil-ur-Rehman and others Vs Government of Pakistan and others (PLD 1981 Karachi 750), Khalid Mahmood Wattoo Vs Government of Punjab and others (1998 SCMR 2280) and Dr.Ghazanffarullah and 2 others Vs Secretary Health, Government of the Punjab, Lahore and 6 others (2010 PLC(CS) 51). The only exception to the rule where Court can interfere is cases pertaining to “fitness” of a civil servant qua the promotion (section 4 Punjab Service Tribunals Act 1974). For reference, reliance can be placed on Miss Zubaida Khatoon Vs Mrs.Tehmina Sajid Sheikh and others (2011 SCMR 265), Mrs. Kausar A. Ghaffar Vs Government of the Punjab and others (2013 PLC

(CS)542) and Muhammad Iqbal and others Vs Executive District Officer (Revenue), Lodhran and another (2007 SCMR 682).

7.The Hon’ble Supreme Court of

Pakistan in numerous judgments have held that transfer of a civil servant is part of terms and conditions of his service, because of which jurisdiction of this Court is barred even if the transfer order is malafide, ultra vires, quorum non judice or without jurisdiction. In this regard reliance can be placed on Secretary to Government of the Punjab Health Department, Lahore and others Vs Dr.Abida Iqbal and another (2009 SCMR 61), Peer Muhammad Vs Government of Balochistan through Chief Secretary and others (2007 SCMR 54), Syed Mazher Hussain Bukhari Vs Secretary, Government of Punjab, Local Government and Rural Development, Department, Lahore and others (1998 SCMR 1948), Asadullah Rashid Vs Haji Muhammad Muneer and others (1998 SCMR 2129) and Khalid Mahmood Wattoo Vs Government of Punjab and others (1998 SCMR 2280).

8.Transfer and posting not being a vested right of a civil servant has been considered by the Hon’ble Supreme Court of Pakistan in Peer Muhammad’s case supra, wherein, they have held as follows:

“Admittedly the petitioner had no legal right to be posted against a particular post hence the question of its infringement does not arise as pressed time and again by the learned Advocate Supreme Court on behalf of the petitioner. It is

well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters.”

9.The argument that in cases of

transfer, as the employee is rendered remediless therefore, this court has the jurisdiction is also misconceived. It shall not be out of place to mention here that filing of a departmental representation/appeal under section 21 of the Punjab Civil Servants Act 1974 sets the ball in motion enabling a civil servant to approach the respective Service Tribunal, which in fact is the court, which has the jurisdiction to decide the fate of a civil servant. The legislature under section 4

of the Service Tribunals Act 1974 has provided a period of 90 days to the departmental authorities to decide appeal/representation. In case the same is not decided the aggrieved employee can approach the Tribunal within 30 days after the lapse of 90 days. In case, his

appeal/representation is decided within the stipulated period or after a considerable delay he can approach the Service Tribunal against the order whenever passed within 30-days of the receipt of the order. It is the choice of the civil servant that at which stage he wishes to approach the Tribunal (either before or after the decision of his appeal/representation). Reliance in this regard can be placed on Pakistan Defence Officers’ Housing Authority and others Vs Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707).

10.As regard the judgments cited by the learned counsel for the petitioner, they either cater for the eventuality where a civil servant is not promoted on the basis of his fitness. In some of the cases, jurisdiction of the Hon’ble Supreme Court of Pakistan assumed on the touchstone of Articles 184 and 187 of the Constitution or its suo motu jurisdiction has been discussed. Another

distinguishing feature in the judgments cited is that question of terms and conditions of service of a civil servant vis-à-vis the bar contained under Article 212 of the Constitution is not discussed or looked into.

11.The argument that petitioner has been posted as OSD has also not been substantiated therefore is not tenable. The petitioner has been asked to report to his Administrative Department, which is neither illegal nor unreasonable.

12.For what has been discussed above, I find no merit in this petition and the same is therefore dismissed.

(FAISAL ZAMAN KHAN)

JUDGE

Approved for reporting.

Rouf