Const. Petition No.D-5463 of 2013
Present : Mr. Justice Muhammad Ali Mazhar
Mr. Justice Abdul Rasool Memon
Zamir Iqbal Khan Province of Sindh
& another ……v/s……. & others
Date of hearing : 20.01.2014
Mr.Sarfraz Ali Metlo, Advocate for the petitioners.
Mr.Abdul Jalil Zubedi, AAG
Mr.Abdul Fattah Malik and Ms.Farkhunda Mangi, Advocates for the respondent No.3.
…………………
Muhammad Ali Mazhar,J: Through this petition the petitioners have claimed the following reliefs :-
“(a) declare that the impugned notification No.SOEII(W&S)12-/2008 dated 17.12.2013 issued by the respondent No.2 is illegal, mala fide, without lawful authority and is of no legal effect.
(b) restrain the respondents from harassing, humiliating and victimizing the petitioners.
(c) grant any other relief(s) as this hon’ble court deems fit and proper under the circumstances of the case.
(d) award compensation and exemplary costs.
(e) Interim orders to suspend the operation of the impugned notification dated 17.12.2013”.
2. The brief facts of the case are that the petitioners are civil servants having more than 24 years of unblemished service record at their credit and presently they are serving as Assistant Engineers (BS-17) in Works and Services Department, Government of Sindh. The petitioners have challenged the notification issued on 17.12.2013 by the Secretary to Government of Sindh, Works and Services Department whereby both the petitioners were transferred. The respondent No.3 was transferred and posted as Assistant Engineer, Provincial Highways Sub-Division, Matli while the petitioner No.1 was posted as Assistant Engineer Building Sub-Division, Tando Adam and Jam Nawaz Ali against on existing vacancy with immediate effect and the petitioner No.2 was posted as Assistant Engineer Highways, Sub-Division, Hyderabad.
3. The learned counsel for the petitioners argued that the respondents No.1 & 2 without any lawful or administrative justification, transferred the petitioners and according to learned counsel, the petitioner No.1 was transferred and posted at different places at least 3 times within a short span of time while the petitioner No.2 was transferred and posted at least nine times within a short span of time at different places. He argued that this action of the respondents is violative of Articles 4, 9, 14, 25 & 27 of Constitution of Pakistan. It was further argued that the transfer and posting of the petitioners was also against the standing directives of the Chief Minister who imposed the ban on all kinds of transfer and posting of the officials who have not completed minimum tenure of their service. It was further averred that the impugned notification of transfer is also in violation of rules, instructions and departmental practice. He further argued that the transfer of the civil servants will amount to negation of public interest and social justice. In support of his arguments, he referred to the judgment of hon’ble Supreme Court reported in PLD 2013 S.C. 195 (Syed Mahmood Akhtar Naqvi v. Federation of Pakistan & others) commonly known as Anita Turab case. In the above judgment while dilating upon the transfer of civil servant the hon’ble Supreme Court has held as under :-
“13. Tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these are made on merit in accordance with definite rules, instructions etc., the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient. It is necessary once again, to hark back to the considerations set out in the speech of Quaid-i-Azam and the eternal wisdom reflected in the Epistle of Hazrat Ali, may Allah be pleased with him, cited at the start of this opinion. It is also relevant to note that the principles of good governance are already envisioned in the Constitution and are also encoded in statutes such as the Civil Servants Act, 1973, the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and other rules made under the aforesaid Act and in regulations and instructions given in the Civil Establishment Code (Estacode). It is, however, apparent from precedent and civil service matters coming up before Service Tribunals and this Court that problems/difficulties arise for civil servants when the rules of good governance so encoded are breached and the reason for such breach appears to be abuse of discretion. We are aware that matters relating to tenure etc. cannot be put in a strait-jacket and that there is to be an element of flexibility. A balance between the competing pulls of discretion and rule based decision making is a fine one where perception of fairness and even handed treatment is of utmost importance. It is for this reason that transparency in decisions relating to tenure etc. are required to be entrenched and cemented to assure the quality, effectiveness and morale of the civil service. Since executive decisions generally are subject to judicial review, the assurance of transparency is itself likely to eliminate decision making based on considerations other than merit.”
4. On the other hand, Mr. Abdul Fattah Malik, learned counsel for the respondent No.3 argued that the transfer and posting of civil servants pertains to the terms and conditions of the service hence, the jurisdiction of this court is barred under Article 212 of the Constitution of Pakistan, 1973. He further argued that the transfer and posting is prerogative of the Government, which cannot be interfered with under the Constitutional Jurisdiction. He also referred to Section 10 of the Sindh Civil Servants Act, 1973 and argued that according to this section the petitioners are liable to be served within or outside the province and they cannot raise objections against the transfer which is one of the basic conditions of the terms and conditions of their employment. It was further averred that all the allegations mentioned in the petition are false. Transfer and posting order is bona fide and issued in the public interest without any ill will or malice. He further argued that the respondent No.3 has already assumed the charge and if this petition is not dismissed or the interim orders are not recalled the respondent No.3 will be seriously prejudiced and work will be hampered. In support of his arguments, he referred to the following case law:-
(1) 1998 SCMR 2129 (Asadullah Rashid v. Haji Muhammad Muneer & others). Civil service. Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction in view of Article 212 of the Constitution of Pakistan. Orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of baring provision of Article 212 of the Constitution. High Court, before taking any decision regarding admission of a Constitutional petition and/or passing order granting interim relief will first decide the question of its jurisdiction in view of Article 212 of the Constitution and in the light of the judgments of Supreme Court on the point involved.
(2) 1997 SCMR 169 (Ayyaz Anjum v. Govt. of Punjab and others). Civil servant. Transfer. High Court suspended order of transfer while admitting Constitutional Petition of civil servant. Validity. Matter relating to posting and transfer of civil servant related to terms and conditions of his service. Disputes about such matters would fall within exclusive jurisdiction of appropriate Service Tribunal. Jurisdiction of High Court was barred in such matters by Article 212(2) of the Constitution. Petition for leave to appeal was converted into appeal and impugned order of High Court was set aside. High Court was required to first determine question of its jurisdiction before making any stay order in such matter.
(3) PLD 1994 S.C. 539 (Muhammad Anis & others v. Abdul Haseeb & others). Section 4(d) Civil Servants Act (LXXI of 1973). Section 9 Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rule 8 and 8-A. Promotion. Eligibility and fitness of civil servant. Term “eligibility” and “fitness”. Connotation. Question of eligibility is different than question of fitness for promotion. Question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned and, therefore, Service Tribunal has jurisdiction in the matter. Question of fitness is a subjective evaluation on the basis of objective criteria when substitution for an opinion of the competent authority is not possible by that of Service Tribunal or of a Court, and therefore, Service Tribunal has no jurisdiction on the question of fitness.
(4) 1992 SCMR 365 (Imam Bakhsh & others v. Deputy Commissioner, Layyah and others). Section 2(2) Punjab Service Tribunal Act (IX of 1974), Section 4. Constitution of Pakistan (1973), Article 212. Question relating to eligibility/ineligibility of civil servant for being considered for promotion. Jurisdiction. Where question directly in issue was specific rule making civil servant eligible/ineligible for being considered for promotion or for excluding him from consideration for promotion, such question would squarely fall within exclusive jurisdiction of Service Tribunal. High Court having no jurisdiction in the matter its judgment was without jurisdiction and was recalled.
(5) 1990 SCMR 999 (Rana Muhammad Sarwar v. Government of Punjab & another). Article 212(3). Abolition of post. Civil servant filing constitutional petition in High Court against abolition of post. High Court refused to entertain the petition by observing that civil servant should approach the Service Tribunal to establish his right. Question raised in petition for leave to appeal was that action Authority in abolishing the post was mala fide with a view to deprive the civil servant of his post, emoluments and his status and thus, it was more appropriately a case entertainable by the High Court in constitutional jurisdiction and not one such could be taken to the Service Tribunal. Held, relief sought for by the petitioner related to the terms and conditions of employment. Question of abolition of post might be within the exclusive competence of a particular authority but if it was a violation of the terms and conditions of employment. Service Tribunal, has exclusive jurisdiction to deal with the terms and conditions and where reliefs claimed by the civil servant related to terms and conditions of employment, Service Tribunal and not the High Court was the proper forum to examine the same.
(6) 2007 SCMR 54 (Peer Muhammad v. Government of Balouchistan & others). Section 10. Constitution of Pakistan (1973), Articles 199 and 212 Constitutional jurisdiction of High Court under Article 199 of the Constitution. Scope. Posting and transfers. Terms and conditions of service. Jurisdiction of High Court. Scope. Question of posting of a government servant squarely falls within the jurisdictional domain of competent authority, subject to law and rules made therefor. Question of posting/transfer relates to terms and conditions of a government servant, Service Tribunal, therefore, has the exclusive jurisdiction to dilate upon and decide such matters. Constitutional jurisdiction of High Court cannot be invoked to get such controversies resolved.
5. The learned AAG adopted the arguments of the learned counsel for the respondent No.3.
6. Heard the arguments. The Chapter II of Sindh Civil Servant Act, 1973 provides the terms and conditions of civil service. It is also an admitted fact that both the petitioners are civil servants and their terms and conditions of services are governed under the Sindh Civil Servants Act, 1973. Section 10 of the aforesaid Act pertains to the posting and transfer which unequivocally provides that every civil servant shall be liable to serve anywhere within or outside the province on any post under Government, Federal Government, or any Provincial Government or local authority or corporation or body set up or established by any such Government. Though the petitioners have claimed that the posting and transfer orders of the petitioners is based on ill will or mala fide intention or even he has argued that the petitioners have become a rolling stone but while passing any order for upsetting the transfer and posting, it is necessary for this court to adjudicate and determine the question of maintainability and assumption of powers despite specific bar contained under Article 212 of the Constitution. Though under Article 199, the scope of powers conferred upon this court is wide enough, but at the same time powers to entertain the service matters relating to the terms and conditions of service is barred under Article 212 in which specific and appropriate remedy has already been provided under the Sindh Service Tribunal Act. While constituting the Administrative Court or Tribunal, it is clearly mentioned under Article 212 that legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals for the matters relating to exercise of exclusive jurisdiction in respect of matters relating to the terms and conditions of persons. It is further provided in Sub-Article (2) that where any Tribunal is established, no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. Since equally efficacious remedy is provided to the civil servants under Sindh Service Tribunal Act to invoke the jurisdiction of Service Tribunal, therefore, this constitutional petition is not maintainable.
7. Learned counsel for the petitioner referred to the case of Anita Turab (Supra) in which the hon’ble Supreme Court took the cognizance under Article 184 of the Constitution and held that tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service, and if the same were made on merit in accordance with definite rules, instructions etc., they would rightly be considered and treated as part of the terms and conditions of service of a civil servant; however, where rules and instructions were deviated from and as a result merit was discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident that the civil service would not remain independent or efficient. Let us first clarify that Anita Turab case in fact pertains to the tenure post which is not the case of the present petitioners. It is also not a case of the petitioners that if they will invoke the jurisdiction of the Service Tribunal, they would not be able to cite Anita Turab case before the Tribunal which is a competent forum to deal with the case relating to the terms and conditions of the civil service.
8. The cumulative effect of the dictums laid down by the hon’ble Supreme Court in the cases of Asadullah Rashid, Ayyaz Anjum, Muhammad Anis, Imam Bakhsh, Rana Muhammad Sarwar and Peer Muhammad (supra) made quite visible that the petition under Article 199 is not maintainable in relation to any matter connected with the terms and conditions of service and in respect whereof the Service Tribunal has exclusive jurisdiction, even it was held that the High Court before taking any decision regarding the admission of constitutional petition and or passing order granting interim relief will first decide the question of its jurisdiction in view of Article 212 of the Constitution. The matters relating to posting and transfer of civil servant relating to terms and conditions of his service and such dispute will fall within the exclusive jurisdiction of Service Tribunal. Question of posting of Government Servant is squarely fall within the jurisdictional domain of competent authority, Service Tribunal therefore, it has the exclusive jurisdiction to decide such matters. The apex court has further held that the orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of bar contained under Article 212 of the Constitution. Recently, the hon’ble Supreme Court has passed the similar order on 03.01.2014 in Civil Petition No.345-K of 2013. The crux of the order is that while exercising jurisdiction by this court under C.P.C. or even in the Constitution petition, the provision of Article 212 of the Constitution cannot be overlooked which bars the jurisdiction.
9. We had dismissed this petition in limine vide our short order dated 20.1.2014. Above are the reasons of our short order.
Judge
Judge
Karachi,
Dated. 23.1.2014