ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C.P No. D – 3354 of 2015

Date	Order with signature of Judge

Present:

Mr. Justice Aqeel Ahmad Abbasi &

Mr. Justice Syed Saeed-ud-Din Nasir.

For Katcha Peshi.

29-09-2015

Mr. Muhammad Asim Malik, advocate for the petitioner.

Mr. Shahariyar Imdad Awan, learned A.A.G.

Mazhar Ali, District Manager, PPHI, District Ghotki is present.

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Syed Saeed-ud-Din Nasir,J- The instant petition has been filed with the following prayers:-

a) To direct the respondents No.2 to 6 to recall the transfer order dated 18.08.2015 of petitioner issued by respondent No.6 without any reason and same is against the rules and regulation of PPHI Sindh.

b) To direct the respondents No.2 to 5 to constitute the grievance settlement committee according to rules and regulations of PPHI Sindh for grievance of petitioner according to law.

c) To suspend the operation of order dated 18.08.2015 through restraining order till the final disposal of this petition.

d) To grant any other equitable relief, which this court deems fit and proper under the circumstances of the case in favor of the petitioner.

2. The main grievance of the petitioner is that the impugned office order dated 18.08.2015 which is available on the file as annexure ‘C’ of the petition at page No.31, whereby the petitioner was transferred from district Office PPHI Ghotki to district office PPHI Tando Allahyar against existing vacancy with immediate effect is malafide and against the settled rules of PPHI Sindh, inasmuch as the respondent No.6, the Manager PPHI is not competent to transfer any staff member without approval given by the respondents No.2 and 3, who are the competent authority, therefore, the action of respondent No.6 for transferring the petitioner from Ghotki and posting him at Tando Allahyar is against the rules and regulations of PPHI Sindh.

3. Learned counsel for the petitioner has, inter alia, contended that the petitioner is sole supporter of his large family and he is residing in District Ghotki, along with his other family members who are dependent on him therefore, his transfer at PPHI office Tando Allahywar which is far away from the house of the petitioner due to which he cannot serve in district office Tando Allahywar; that according to the rules and regulations of PPHI, the employee cannot be transferred without any complaint against him, therefore, without any complaint or application against the petitioner, the respondent No.6 was not justified to transfer the petitioner from his native place to another place; that the petitioner has also forwarded the application online to Muhammad Ahmad, District Administrator, praying therein that the transfer orders as per aforesaid office letter may be withdrawn. The Learned counsel for the petitioner has relied upon the annexure ‘A’ at page No.17 to the petition which is the offer letter of appointment on contract to the petitioner dated 01.07.2015 and Rule No. 1.9 of the Transfer and Postings of the relevant rules of PPHI Sind.

4. Controverting to the arguments of learned counsel for the petitioner, the learned counsel for respondents No.2 to 7 has submitted that the instant petition is not maintainable as the PPHI Sindh is a Company registered U/S 32 of the Companies Ordinance, 1984. Board of Directors control the operations of the PPHI, Sindh; that the petitioner was appointed purely on contract basis and as per terms and conditions of the said contract contained in para No.5, the petitioner can be transferred temporarily or permanently to any other district in PPHI Sindh operational areas within province of Sindh at any time, therefore, the competent authority has issued the transfer order, which is impugned by way of this petition, as per contract signed by the petitioner; the petitioner has not come to this court with clean hands; that the petitioner is bound to follow the contract signed by him and conditions contemplated in para 5 of the rules clearly explains the transfer procedure of the employee of the PPHI Sindh, hence the petitioner has violated the contract by not joining the district office Tando Allahyar, that Regulation No. 9.1 relied upon by the petitioner is not relevant to the case of the petitioner.

5. We have heard the learned counsel for the parties and carefully perused the terms and conditions of the contract, which is appointment of the petitioner on contract basis and entered into between the petitioner and PPHI Sindh. For the sake of convenience, the aforesaid clause 5 of the Contract is reproduced as under:-

“5. TRANSER & POSTING:

You are offered posting at District Office, Ghotki. However, you may be transferred temporarily or permanently to anywhere, anytime, in PPHI Sindh’s operational areas within the District (for Medical, Para Medical Staff and Auxiliary) and in Province of Sindh (for all other staff), as the case may be.”

6. Upon bare perusal of clause 5 of the aforesaid contract, it can be said with authenticity that the employee of PPHI can be transferred temporarily or permanently to anywhere at any time in PPHI Sindh’s operational areas within the District (for Medical Staff and Auxiliary) and in Province of Sindh ( for all other staff), as the case may be.

7. The provisions of regulations of PPHI relied upon by the learned counsel for the petitioner is regulation No. 1.9, which provides the manner in which the transfer and postings on administrative grounds shall be made. For the sake of convenience the aforesaid regulation No.9 is also reproduced as under:-

“ 1.9 Transfers and Postings

The transfers and postings on administrative grounds shall be made in following manner:

(1) Transfer and postings of employees shall be made only against the posts carrying the same job descriptions.

(2) Ordinarily contract appointments at Health Facilities shall be made health facility specific. However a District Manager may transfer Medical Staff with prior approval of Regional Director and Paramedical Staff of a Health Facility to another Health Facility in exigencies of service or in an emergency.

(3) The competent authority may consider the request o an employee for his transfer and posting provided such transfer is in the interest of the organization.

(4) The competent authority may consider request for mutual transfers and postings of two or more employees.”

8. Upon reading the aforesaid Clause (5) of the terms and conditions of the Contract and Regulations I.9 relating to Transfers and Postings, we have no cavil to the fact that the petitioner can be transferred from his present place of posting and can be posted at any other place at any time in PPHI Sindh’s Operational areas within the district or any place within the Province of Sindh. The petitioner is debarred from challenging such transfer and posting once having acquiesced to the terms and conditions of the Contract of appointment by signing the same. The petitioner having a contract of employees cannot deviate from the terms and conditions of the Contract and cannot also disobey the same. However, since Regulation 2.5 contemplates that the CEO shall constitute a Grievance Settlement Committee, and the petitioner has already filed a grievance petition against his transfer orders with the respondents No.2 to 5, we would direct the said respondents to constitute the Grievance Settlement Committee according to Regulation 9.5 of the PPHI Sindh’s Rules and Regulations and decide the grievance petition of the petitioner strictly in accordance with the same on humanitarian grounds.

9. We, therefore, without going into the question of maintainability of the instant petition, and upon perusal of the aforesaid relevant portion of the Contract of service and regulations of PPHI, Sindh, are of the considered view that the instant petition is mis-conceived and is, therefore, dismissed with no order as to costs in aforesaid terms.

Judge

Abdul Salam/P.A