Dilshad Begum Vs Govt. of KPK

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P. No. 488-M of 2013.

JUDGMENT

Date of hearing: 12.02.2014.

Petitioner (Mst. Dilshad Begum) by Mr. Aziz-ur-Rahman, Advocate.

Respondents: by Muhammad Javed, AAG.

MUHAMMAD DAUD KHAN, J.- Petitioner Dilshad Begum, who is the District Education Officer (Female) in BPS-18, Management Cadre is aggrieved by the order of Secretary Elementary and Secondary Education, Khyber Pakhtunkhwa, Peshawr (respondent No. 2) through notification No.

SO(S/F)E&SE/4-16/2013/Perveen and Dilshad Begum dated 24.10.2013, vide which the petitioner has been transferred from Executive/Management Cadre to Teaching Cadre, thus seeks issuance of appropriate writ by declaring the above mentioned order to be illegal, without lawful authority and jurisdiction, malafide, hence liable to outright cancellation.

2.The brief facts of the case are that initially the petitioner was appointed as

District Officer/Deputy Director (Female) BPS-18 in the Management Cadre on the recommendation of the Khyber Pakhtunkhwa, Public Service Commission vide notification No. SO/(S/F)E&SED/3- 2/2011/DO(F) dated 30.05.2011. At present she was performing her duties as District Education Officer (Female) to the entire satisfaction of their superior ups. The Respondent No. 2, the Secretary, Elementary & Secondary Education, Khyber Pakhtunkhwa, Peshawar vide the impugned Notification No. SO(S/F)E&SE/4-16/2013/Parveen & Dilshad Begum dated 24.10.2013 transferred the petitioner and she was placed at the disposal of the Directorate Elementary & Secondary Education, Peshawar. Feeling aggrieved by the impugned notification, the petitioner has preferred the instant writ petition.

3.Mr. Aziz-ur-Rehman Advocate, learned counsel for petitioner argued that the petitioner has been subjected to sever kind of discrimination as she was performing her duties to the entire satisfaction of their superior ups but when she did not obey the unlawful and unconstitutional orders of the political elite, she was not only transferred vide the impugned notification but it is also irony of the matter that she

was posted at the disposal of Directorate of Elementary & Secondary Education, Peshawar in other words she was made O.S.D. He further argued that Superior Court of this country has laid-down principles that in case of stigma allegation or if a person became O.S.D, he or she must be given a fair opportunity of hearing to defend herself and mere provision of Article 212 regarding terms and conditions of civil servant cannot become a stumbling block, when the fundamental rights of an individual is infringed by the political elites for fulfillment of their unlawful acts, then the Court can assume jurisdiction and protect the fundamental rights of every individual in the society, but in the case in hand this Golden principle has been violated. He further submitted that the petitioner was duly appointed on the recommendation of Khyber Pakhtunkhwa, Public Service Commission in Management Cadre after fulfilling all the codal formalities as required under the law, while the transferee, who has been posted at her place is belonged to Teaching cadre, so, the precedents and judgments of this Hon’ble Court regarding bifurcation of Management and Teaching Cadres have also been totally ignored by the respondents. He lastly submitted that the impugned

notification may be set aside and the petitioner be allowed to perform her duties as before. Learned counsel for petitioner placed reliance on PLD 1995, Supreme Court 530, 2005 SCMR 589, 1976 SCMR

1786 & 2013 SCMR 1108.

4.Learned AAG appearing on behalf of the respondents vehemently defended the impugned order of respondent No. 2 by submitting that admittedly, the petitioner is a civil servant and the matter of transfer relates to her terms and conditions of service, for which the competent forum is the Khyber Pakhtunkhwa, Service Tribunal constituted under Service Tribunals Act, 1973, as the jurisdiction of all other Courts including the High Court was specifically ousted because of the provisions contained in Article 212 of the Constitution. He further argued that through subsequent amendment vide Notification dated 07.04.2012, in Sub Rule (2) of Khyber Pakhtunkhwa, Civil Servants (Appointment, Promotion & Transfer) Rules, 1989, the Management Cadre as well as Teaching cadre are inter- transferrable, so, besides, the above, on this score alone, the instant petition is not maintainable in the eye of law and is liable to be dismissed. Learned AAG

placed reliance on 2007 SCMR 54 & PLD 2008, Peshawar, Page No. 868.

5.Lengthy arguments of learned counsel for the parties were heard and record of the case was thoroughly perused with their valuable assistance.

6.Vide notification dated 04.05.2009, separate Rules for Management Cadre have been formulated, wherein the following method of recruitments, qualification and other condition were laid down:-

QUALIFICATION: (1) Ph.D in Education and Seven years teaching/administrative experience in Govt: recognized educational institutions/Office; or (ii) M.Phil in Education and Nine years teaching/administrative experience in Govt: recognized educational institutions/office; or (iii) M.A/M.Sc in 2nd Div with M.Ed/M.A. (Education)/M.A (Education Planning & Management) or equivalent qualification with at least twelve years teaching/administrative experience in Govt: recognized educational institutions/office.

Age Limit for appointment against the said post was prescribed as 35 to 50 years.

Under the Rules applicable to the posts of Schools Management Cadre in the Elementary and Secondary Education Department, the method for recruitment was provided as under:- By initial recruitments in the following manner:

(a)Forty percent by initial recruitment from amongst open market;

and

(b)Sixty percent by initial recruitment from amongst the Teaching

Cadre having the qualification as mentioned in column No. 3.

7.The purpose beyond formation of

Management Cadre was to streamline the affairs in the offices of the then Executive District Officers now District Officers, and Directorate of the Elementary & Secondary School. Before bifurcation of two cadres, persons from teaching were used to be appointed as EDOs, who were regularly transferred from their posts back to the schools due to political influence.

After the introduction of Management cadre, the government banned transfer of EDOs back to the school, as to remove the fear of transfer amongst them.

8.After the above narrated process, the Provincial Government sent the requisition to the Public Service Commission for appointment of twenty one (21) posts of District Officers/Deputy Directors (Female) (BPS-18), from the persons possessing the qualification mentioned above. After competitive test and interview, the successful, qualified persons were recommended by the Khyber Pakhtunkhwa, Public Service Commission. Consequently, the Provincial Government issued Notification No.

SO/(S/F)E&SED/3-2/2011/DO(F) dated 30.05.2011, regarding appointment of the successful candidates

including the petitioner under the Policy & Rules of

9.As stated above, that the petitioner was duly appointed on the recommendation of Khyber Pakhtunkhwa, Public Service Commission in Management Cadre, whereas, the transferee, who has been posted at her place was admittedly belonged to Teaching Cadre, so, the precedents and judgments regarding bifurcation of Management and Teaching Cadres have been totally violated by the respondents.

As far as, the argument of learned A.A.G that the petitioner is admittedly a civil servant and the matter of transfer relates to terms and conditions of her service, so, the jurisdiction of all other Courts including the High Court was specifically ousted because of the provisions contained in Article 212 of the Constitution, is concerned, we are fully agreed with the learned A.A.G to the extent that the petitioner is a civil servant and the matter of transfer relates to her terms and conditions of service but this Court has to see the facts and circumstances of each and every case and cannot become a mere spectator or bench-sitter and refuse the relief claimed against an illegal and void order on the question of want of jurisdiction, as the case in hand, the petitioner was

politically victimized by the ruling elite of the province, which is quite apparent from the photocopy of letter produced by the learned counsel for petitioner wherein transfer of petitioner was strongly recommended by Mehmood Khan, Minister for Spots, Culture, Tourism and Museum Departments K.P.K and Muhibullah Khan the local MPA to the higher authority because the petitioner was not ready to obey their unlawful and unconstitutional orders. The transfer of civil servants by the illegal recommendation and interference was declared void and unlawful by the superior Courts repeatedly. The Supreme Court vide its judgment in Civil Petition No.

747-P/2004 titled Roshan Khan Vs. Director Sports, on reliance on PLD 1995 SC 530 has held as under.

“Transfer of civil servant under the orders of even a Minister was held by this Court to be void and unlawful, being violative of Rule 21(2) read with Schedule V of Rules of Business 1974. While condemning the role of Minister, that of tamed and subservient bureaucracy was also condemned and need for an upright, honest and strong bureaucracy was emphasized.”

This illegal action has also been condemned by the august Supreme Court of Pakistan in its judgment Syed Sikandar Ali Shah Vs. Auditor General of Pakistan and others (2002 SCMR 1124)

in which capricious and arbitrary directions of political bosses without raising the slightest protest by Competent Authority have been prohibited as the same depicts a cowardly and condemnable trend.

We fortify our view with the judgment of the apex Court reported in 1995 PLD 530 (supra). The transfer of civil servant under the orders or directions of a Minister of other department is certainly void, unlawful and violative of rules. The relevant dictum of the judgment 1995 PLD SC 530 is reproduced as under.

“The fact that the transfers were made I violation of policy directive of the Government, which has the status of a Rule, and provisions of Rule 21(2) ibid were not followed strictly, opened the door for the Government servant concerned to bring in outside influence to obtain the desired transfers.”

The other defence taken by the learned A.A.G. is that the policy and Rules of 2009 have been changed by the Provincial Government in the year 2012 vide amended notification dated 07.4.2012, by virtue of that the management and teaching cadres are transferable inter se. He referred to the relevant portion of the amended Rules of 2012, which read as under:-

“We have noted with great concern that this amendment was necessitated and introduced, when this Court decided W.P 3519, titled “Abdul Malik VS Govt of K.P.K”, whereby the transfer order of abovementioned Abdul Malik from management Cadre to the Teaching Cadre was set aside. It is an admitted fact that the petitioners have been appointed against their respective posts through Public Service Commission and mere endorsement of a foot-not would not change the terms and conditions of the service of petitioners.

The afore-said note would never occupy the place of a statue and would not prevail upon or render redundant the parent statue. According to the well established principle of Interpretation of Statue and in particular, any proviso attached to the main section would not render redundant or ineffective the substantial provision of the main section.

Reliance may be placed on case titled, “Enmay Zed Publications (Pvt) Vs Sindh Labour Appellate Tribunal” (2001 SCMR 565).”

In the instant case, the petitioner has been appointed through Public Service Commission after qualifying the competitive test and interview. The selection is purely on merit basis which has never

been denied by the respondents. It is not also controverted by the respondents that they have been appointed under the Rules 2009. In these eventualities the amended Rules would not operate retrospectively. Reliance in this regard can be placed on 2012 SCMR 965 titled WAPDA Lahore Vs. Haji Abdul Aziz. The relevant portion is reproduced as under.

“Rules operated prospectively and if a right was created in favour of an employee under the old rule, it could not be taken away on the ground that the amended rule had allowed others to compete.”

Moreover, the amended rules have also been nullified by the judgment of this Court in W.P No.

3663-P/2012 decided on 08.5.2013. Operative part of the judgment is reproduced as under.

“ In wake of the above, the amendment notification dated 07.4.2012, being in contravention of the main policy/statute, is declared as illegal, arbitrary and against law, hence set aside. Likewise, the impugned orders of the respondents qua transfer of the petitioners from the Executive Cadre to the Teaching Cadre, being not permissible and the same being whimsical, arbitrary and punitive in nature and

therefore, in violation of fundamental rights enshrined in Constitution of 1973 and in contravention of Rules and policy, hence, are not sustainable”

12.Thus, keeping the above discussion, the instant petition is allowed and impugned notification dated 24.10.2013, being in contravention of the main policy, is declared as illegal, malafide and orbitrary, hence set aside.

The query of learned AAG that the policy and rule of 2009 has been reviewed by the Provincial Government in the year 2012, by virtue of that, the Management and Teaching Cadres are inter- transferrable is without force, as this aspect of the case was thoroughly explained by this Court in Writ Petition No. 3663-P of 2012 Titled “ Sultan Mahmood VS Government of Khyber

Pakhtunkhwa & others”, which is self- explanatory and needs no reiteration.

In wake of the above discussion, the instant petition is allowed and the impugned Notification dated 24.10.2013 of respondent No. 2 is hereby set aside.

Announced.

Dt: 12.02.2014. JUDGE

JUDGE