' QAZI EHSANULLAH QURESHI, J.---The captioned writ, petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has been initiated by the petitioner calling in question his transfer Order No,92/873/G/ADG(EST)/ML&C/2000 dated 13-10-2003 from Cantonment Board Peshawar to Cantonment Board, Maleer, Karachi. He has also vis-a-vis impugned the vires of the rules and legality of the letter in respect of transfer categories of Cantonment servants applying rule 5. (1) of the Pakistan Cantonment Servants Rules, 1954. No,92/770/ADG(EST)/ML&C/98, Government of Pakistan dated 3-11-1999.
2. The brief narrated facts of the case as advanced by the learned counsel for the petitioner are that the petitioner was appointed initially as Naib Qasid/Peon and keeping in view his excellent performance and service track record the petitioner was promoted as L.D.C. In BPS-5 posted at Cantonment Board, Peshawar. That the respondent No,1 was not competent to acquire power on the strength of Rules-5(1) of Pakistan Cantonment Servants Rules 1954 regarding transfer of clerical staff serving in BPS-5 and issuing letter No,92/770/ADG/(EST)/ML&C/98 Government of Pakistan dated 3-11-1999. That in fact the service of the petitioner is a Cantonment Board Service which is a corporate body managing and procuring funds from its own resources nor it is a Centralized/Federal organization but controlled and managed by the Federal Government for the purpose of general policies and servants regarded as centralized employees.
3. It was also argued:that as per rule 5(1) of the ibid Rules the services of Cantonment Board servants is BPS-5 and below were not transferable and by making the same transferable, the respondent No,1 has committed illegality.
4. It was further argued that the impugned order of transfer of the petitioner was in contravention of Pakistan Contonments Servants Rules, 1954 hence the same was not sustainable. Reliance was placed on 1989 MLD Page 2132.
5. It was further argued that in the light of the said Rules the transferable categories are unambiguously worded and it is expressly given to understand that in Central Cadres Assistant Secretaries, Revenue Superintendents, Store Superintendents, Cantonment Engineers, Medical Officers, Heads of College/High Schools including public High. Schools come within that purview.
Whereas in Regional Cadres, Office Superintendents, Accountants, Tax Superintendents , Land Superintendents, Store Superintendents, Chief Sanitary Inspectors, Sanitary Inspectors and Cantonment Overseers are falling therein. In the third Local Cadre all members of teaching staff including colleges/schools run by the Cantonment Board are figured vide rule 3 transfers categories are the Central Cadre shall be transferable anywhere in Pakistan. Members of Regional Cadre shall be transferable anywhere in the respective Region and Inter-Regional transfers of the Regional Cadre shall be ordered by the Director-General ML&C, normally in consultation with the concerned Directors and that members of the Local Cadre shall not be transferable except under mutual arrangements.
6. On the other hand the learned counsel for the respondents Nos.1 to 3 at the very outset objected to the maintainability of the writ petition and submitted that all the employees of institutions/corporations/ corporate bodies which are controlled and administered by the Federal Government comes within the ambit of section 2(a) of the Federal Service Tribunal Act wherein it is categorically stated that all such employees of federally controlled organizations are civil servants within the meaning of Service Tribunal and the petitioner has no locus standi or cause of action to challenge the impugned order/notification before this Court. He can seek relief from the Federal Service Tribunal.
7. Adverting to the merit of the case the learned counsel submitted that Director-General Military Lands and Cantonments derives the powers of transfer of employees even serving in BPS-5 under section 5(1) of the Pakistan Cantonment Servants Rules, 1954 and as such the notification dated 3- 11-1999 is quite in consonance to the relevant provision. The petitioner in the circumstances was under transferable category and he has been rightly transferred.
8. The learned Deputy Attorney-General representing the Federation adopted the arguments as advanced by the learned counsel for the respondents Nos.1 and 3 and without adding any further placed reliance on PLD 1997 SC pages 169/170.
9. We have heard the learned counsel for the parties at length and gone through the record carefully.
10. Before adverting to the merits of the case it will be in the fitness of things to discuss the preliminary objection raised by the learned counsel for the respondents i,e, the maintainability of this writ petition. In order to resolve the issue lets take guideline from the following dictum laid down by the Apex Supreme Court of Pakistan.
"Art 199 & 185(3)---Void order---Constitutional petition---Vaid order should not always be struck down regardless of consequences flowing from such decision---Void order, however, would be struck down provided there was no statute or principle of law which would make such striking down unjust or inequitable". (PLD 1997 page 304 Citation 'C').
"It is well-settled that a person seeking relief, particularly under the Constitution, must show that a right (infringement of which is complained) was accrued to him or earned by him in a bona fide and transparent, lawful manner, in the matter in issue. If it is so, he does qualify for the relief prayed for. If it is otherwise, he shall riot be entitled to any relief, what to talk of equitable relief". (PLD 2002 Lahore page 290 Citation 'A').
"Constitutional petition is competent if an order is passed by a Court or Authority by exceeding its jurisdiction even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case---Where the petitioner had clearly stated in the petition the reasons for not exhausting the departmental remedies and High Court had rendered judgment on merits after hearing at length the submissions of the parties and opposing party had never pressed any objection as the maintainability of the Constitutional petition before the High Court, discretion by the High Court in the facts and circumstances of the case, to entertain the petition and decide on merits, did not suffer from any illegality." (SCMR 1999 page 1073 Citation B).
"Other remedy open---Decision of question depending on point of law alone which finally bound to come to High Court for decision---Writ jurisdiction, in the circumstances, a speedier remedy-Other adequate remedies---Have reference to remedies provided by particular statute itself which has created right of obligation and not a general remedy at law e.g. By a suit. It should be born in mind that if relief of the requisite kind and to the requisite extent is available under another remedy 'is to be determined with reference to a comparison of the speed with which the relief would be available under the remedy or under Article 199, the comparison must be based on a consideration of an intrinsic advantage of speed, if any, that the High Court may have in respect of the kind of determination that is to be made in a particular category of cases. If for example the decision depends on a point of law alone, which in any case will have to be decided by this Court finally, it will be speedier if the High Court would do straightaway what it anyhow would be called upon to do later. When the relief sought for is by its nature one which lends itself to be effectively remedied by orders of the nature contemplated in Article 199, then the intention of the Constitution appears to be that the remedy granted by Constitution should be made available to the citizen unless Court is satisfied that other adequate remedy is provided by law. The other adequate remedies provided by law would, in the ordinary circumstances, have reference to the remedies provided by the particular statute itself which has created the right or obligation and not a general remedy at law, as for. Example by a suit. On the other.Hand, if the remedy sought for is in substance a remedy which is available under the law, then, a suit and not the extraordinary remedy under Article 199 should be the appropriate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of suit can hardly be considered to be an adequate alternative remedy."
' The Constitution recognizes that it is the right of every citizen that he should be treated in accordance with law and only in accordance with law. This right is described in Article to be the inalienable right of every citizen. Reading this provision with the provisions of Article 199 of the Constitution, one is led to the conclusion that a party who stands 'to gain benefit or advantage by the observance of law can consider itself to be an aggrieved party if the law is not observed and thus.It stands to be deprived of that benefit or advantage. In this view of the matter, it is not possible to see the problem from an angle which may give to the observance of law the look of an ex-gratia act. (PLD 1968 Lahore 1155 Citations 'B' and 'C').
"A public functionary does not enjoy despotic, naked and unbridled powers to act in whatever manner he likes according to his whims. An authority created by statute m it act within the scope of the powers conferred by the statuted observe the limitations imposed by it. Deviation from law cannot be allowed to go unnoticed and unchecked. Law is jealous of the transgressions of the limits laid down by it. If the authority has jurisdiction to decide in a particular manner, he cannottdecide in a different manner. Furthermore, if the jurisdiction depends upon the existence of certain circumistances, those circumstances must be shown to exist to provide a justification for the exercise of jurisdiction. The approach of the authority in determining the relevant facts for the existence of the circumstances in order to exercise the jurisdiction may he subjective and,not objective but legal duty imposed by statute cannot be disregarded. In other words the findings of facts will not be reviewed but where the decision is founded on clear ignorance or disregard of the provisions of law, it is open to interference." (PLD 1971 Karachi page 515).
"The fact that in some sense a person employed in a local body holds a public office and may on that ground be classified as a public officer, for a limited purpose is not sufficient to constitute him in law a servant of the State within the meaning of the Constitution. The term 'service' as defined in the Constitution is "any service post or office in connection with the affairs of Centre or of any Province, and includes an all Pakistan Service, any defence service and any other service declared to be a service of Pakistan by or under an Act of the Central Legislature or of a Provincial Legislature:" (PLD 1967 Lahore page 1253).
"If the alternate remedy is open and it is too cumbersome or the relief cannot be obtained without delay and expense, or the delay would made the grant of the relief meaningless, the High Court would not hesitate to issue a writ if the party is found entitled to it. Simply because the party could have chosen another course to obtain the relief". (PLD 1959 Lahore Page 915 Citation ' A')
"Ordinarily the High Court will be reluctant to interfere by way of high prerogative writs if the petitioner had actually taken recourse to the remedy either in the Statute or by way of a suit. But where an inferior tribunal assumes jurisdiction and the want of jurisdiction is patent on the face of it; where the proceedings complained of are against the principles of natural justice and where the alternative remedy is too costly or ineffective or entails such delay that the applicant would be irreparably prejudiced or the remedy might prove valueless, this ordinary rule will not be an obstacle in issuing an appropriate writ". (PLD 1957 Karachi page 874).
11. The learned Deputy Attorney-General and counsel for the respondents had placed their reliance as to the maintainability of the writ petition on (PLD 1997 SC page 308). The authority produced is neither directed nor on the service points. It relates to land mutation on factual controversy. Even in that the spirit is there for striking down unjust and inequitable orders. The case before us is not based on factual controversy but requires interpretation of section 280 of the Act supra and Rules 5
(1) 1954 ibid.
12. The stance of the learned counsel for the respondents that under section 280 of the Cantonment Act 1924 the Central Government can make rules relating to the terms and conditions of the service of an employee of the Cantonment Board and as such under Rule 5(1) of the Cantonment Servants Rules, 1954, the Director-General ML&C can through notification make the service of the employee serving in BPS-5 or in the non-transferable cadre as transferable, is not a correct, legal and justifiable approach in our view. Section 3 of the Pakistan Cantonments Servants Rules, 1954 about the transfers of Central Cadres and Regional Cadres speaks:-- "Transfers---(i) Members of the Central Cadres shall be liable to transfer anywhere in Pakistan.
Their postings/transfers shall be made by the DML&C. Normally senior officials shall be posted to the Cantonments of higher status in revenue and work load."
' Annexure-I...COMPOSITION AND CADRE---Service Policy in respect of Pakistan Cantonments Servants has been elaborated in three Cadres: (I) Central Cadres (II) Regional Cadres (III) Local Cadres.
' In Annexure-Ill where the transfer categories of the Cantonment servants are given:-- ' Annexure-III---TRANSFERABLE CATEGORIES. Constitution of Transferable Categories of Cantonment Servants. "In pursuance of rule 5(1) of the Pakistan Cantonment Servants Rules, 1954 and Service Policy issued vide this Date letter No,89/37/G/AD (B) ML&C/70 dated 15th July, 1972 and in supersession of all previous orders on. The subject, the following posts are specified to be in the transferable categories, whose incumbents will, in the public interest, be transferred from one Cantonment to another.--
(1) Central Cadre: (a)
(i) Assistant Secretaries Selection Grade Rawalpindi and Peshawar Cantonments.
(ii) Assistant Secretaries Ordinary Grade, Legal Assistant, Peshawar Cantonment.
(b) Cantonment Engineers.
(c) Medical Officers/Assistant Medical Officers.
(d) Heads of Colleges/High Schools including Public High Schools.
(e) Octroi Supdt. Employed in various Cantonment Boards.
(f) Head Masters of Middle Schools. (II) Regional Cadre:
(a) Office Superintendents.
(b) Accountants.
(c) Tax Superintendents.
(d) Land Superintendents
(e) Stores Superintendents.
(f) Chief Sanitary Inspectors..
(g) Sanitary Inspectors.
(h) Cantonment Overseers.
In future all Assistant Secretaries Group-III and Head Clerks shall also be designated as "Office Superintendents" Since all the categories of (a) to (e) in the Regional Cadres are of non-technical nature, these will be interchangeable i,e, an Office Superintendent may be appointed as Account or Tax Superintendent, Land Superintendent or Store Superintendent.
13. No doubt under section 280 of the Cantonment Act the powers to make rules lies with the Federal Government but those powers were delegated by the Federal Government to respondent No,1 wide Memorandum No,89/10/G/D5/62 dated 6-8-1964. Now the question that requires consideration in this writ petition is that as to whether the decision of respondent No,1 issued vide letter No,92/770/ADGKEST)/ML&C/98 dated 3rd November, 1999 could change the Pakistan Cantonments Servants Rules, 1954? Answer to this question is in negative. As mentioned above the members of the Central Cadres were liable to transfer anywhere in Pakistan by DGML&C under rule 3 of the ibid Rules. But the service policy in respect of Pakistan Cantonment Servants categorized the Cantonment Servants into 3 categories. The petitioner falls under the category of Regional Cadre therefore he could not be transferred out of the Region. The impugned letter is, therefore against the Rules (ibid).
14. The instant Case in the like situation is of public importance and hardship matter concerning an employee of low grade who has been transferred from his home station to. Karachi at a distance of more than one thousand miles away which act on the part of the respondents is not only without jurisdiction but contrary to the rules which amounts exceeding the limits/povvers not vested in them. Wisdom is also drawn from (SC.MR 1998 Page 2269 Citation "D').
"The doctrine has further been recognized and augmented by a recent insertion of section 24-A in the General Clauses Act 1987, which declares that where a statute confers a power to make any order or to give any direction to any Authority, office or person, such would be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment. What is more, the order or direction, so far as necessary or appropriate would reflect reasons for its making or issuance and, where the same is lacking, an affectee may demand the necessary reasons, which, in response, would be furnished" (SCMR 1998 Page 2269 Citation S D').
15. We are further fortified by MID 1989 (India) page 2132 Citations A.B.C.D. And E that the Cantonment Board Servants Rules, 1937, rule-5-C providing for transfer of employees of Boards--- Rules declared ultra vires. In that also the Rules were amended and a new rule 5-C was added. It was for the first time that transfer of employees of the Cantonment Board from one post in one Board to another post in another Board was inserted and the High Court exercising jurisdiction under the Constitution struck down rule 5-C holding that the Cantonment Board neither a centralized nor is common State-level service. The Central Government after previous publication may under section 280 make Rules to carry out the purpose and object of this Act, in particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the matters, namely the tenure of office, salaries and allowances, provident funds, pensions, gratuities, leave of absence and other conditions of service of servants of Boards. Rule 5(1) of the Cantonment Board Servants Rules, 1954 does not confer on the Director-General ML&C power to frame rules regarding conditions of service which necessarily includes transfer of the employees of the Boards.
16. It is not disputed that the Cantonment Boards are statutory and autonomous bodies controlled entirely by the Cantonments Act. Each Cantonment Board is an independent body functioning within its limited jurisdiction. The Board is an independent authority of its employees. The service under the Cantonment Board is not a centralized service nor is it a service at the State-level. As such the transfer of employees from one Cantonment Board to another would mean the termination of appointment of the employee in the Cantonment Board from which he is transferred and a fresh appointment in the Board where he is so transferred. The respondent No,1 is not the appointing authority of the petitioner or the employees of, low cadres of the Cantonment Boards.
17. Therefore, in view of the detailed discussion above, the Notification No,92/770/ADG(EST)/ML&C/98 dated 3-11-1999 is declared as unreasonable, unjust, ultra vires, void ab initio and without lawful authority and the transfer order of the petitioner (No, 92/873/G/AD/(EST)/ML&C.2000) dated 13-10-2003 is also set aside. No order as to costs.