' Dr. Zafar Hussain Iqbal, Professor of Medicine is aggrieved by the order dated 29-10-2003 passed by Governor of the Punjab, transferring him from Allama Iqbal Medical College, Lahore with immediate effect and posting him as Professor, T.B and Chest diseases at Quaid-e-Azam Medical College, Bahawalpur against an existing vacancy.
2. Facts succinctly described in the appeal manifest that vide a Notification dated 4-6-2003, appellant on his regular promotion was posted as Professor, T.B. And Chest diseases in BS-20 at Alama Iqbal Medical College, Lahore by Secretary Health, Government of the Punjab, Lahore. On 29-10-2003, vide the impugned order, appellant was transferred with immediate effect and posted as Professor T.B. And Chest diseases at Quaid-e-Azam Medical College, Bahawalpur against an existing vacancy and in order to accommodate respondent No.3, the post of Professor of T.B. And Chest diseases, Allama Iqbal Medical College, Lahore was downgraded to the rank of Associate Professor of T.B. And Chest diseases against, which respondent No.3, who was promoted to the rank of. Associate Professor of T.B. And Chest diseases in BS-19 on acting charge basis was transferred and posted. It was alleged by the appellant that the whole drama was enacted to help respondent No.3, being the real brother of a senior bureaucrat of Punjab, therefore order was a colourable exercise of powers tainted with mala fides, apart from being in violation to the transfer policy of Government of the Punjab not allowing the appellant to complete his normal tenure of posting for three years against the post from which he was transferred having been posted on the said post on 2-6-2003, which clearly indicates that the transfer was not in public interest or on administrative grounds. It was also stressed that in accordance with the Punjab Civil Servants Act, 1974, there was no need of filing representation as the impugned order was passed by the Governor of the Punjab.
On the other hand. Learned counsel appearing for respondent No.3 raised a preliminary objection that the appellant being aggrieved by an order of transfer has knocked the doors of the Punjab Service Tribunal without availing the remedy of review/representation as envisaged under section 21 of the Punjab Civil Servants Act, 1974, therefore the jurisdiction of the Tribunal is barred to entertain the appeal by virtue of the provisions of section 4(1)(a) of the Punjab Service Tribunals Act, 1974. It was further stated that under section 9 of the Punjab Civil Servants, Act, 1974, civil servant is liable to serve anywhere within or outside the Province in any post. On merits, it was stated that no post of Professor of T.B. And Chest diseases existed, in Allama Iqbal Medical College, Lahore. In order to accommodate the appellant, the post of Associate Professor was upgraded to the post of Professor and the appellant was posted against the said post being, personal to him, against the rules and regulations on the subject. The upgradation was made by the then Board of Governors who were not competent to do so. The matter was brought to the notice of the competent authority i.e. Chief Minister and the post was restored to its original status of Associate Professor and in this way, a patent illegality was undone. Learned District Attorney has supported the arguments adopted by learned counsel for respondent No.3.
3. I have heard the counsel for the respective parties and perused the record.
4. Before entering upon the merits of the case, I would like to dwell on the preliminary objection taken by the counsel for respondent No.3 and the District Attorney that the appeal is not maintainable as the remedy of filing representation remains unexhausted. Under the changed structure after the induction of the civilian Government and by virtue of Article 139 of the Constitution of Islamic Republic of Pakistan, 1973, which lays that the conduct of business of Provincial Government, all executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor, who shall make rules for the allocation and transaction of the business of the Provincial Government. In accordance with the aforesaid provision Rules of Business were amended which catered for the matter in question i.e. Transfer of Government servant upto a particular grade to be brought within realm of the powers of the Chief Minister though such powers were exercised in the name of the Governor of the Province. On the other hand, section 21 of the Punjab Civil Servants Act, 1974 mandates the making of a representation within 60 days of the passing of the order to the authority higher that the authority which passed the original order. This provision of law read with section 4 (1)(a) of the Punjab Service Tribunals Act, 1974 places fetters on the powers of the Tribunal to entertain any appeal where a right of representation/appeal/review is provided, unless remedy is exhausted and after the expiry of the statutory period, if no order is passed by the Appellate Authority, the doors of the Tribunal are open for the representationist to seek redress of his grievance. Admittedly this course of action has not been followed, therefore the fetter placed by the law upon the exercise of powers of the Punjab Service Tribunal gets invoked. The appellant shall in the first instance move a representation to the Governor of the Province of Punjab and if so done, the question of limitation shall be considered sympathetically as the appeal was filed before this Tribunal on 1-11-2003, and since then, it is pending till today, being disposed after hearing arguments of both sides. If the appellant after exhausting his right of representation feels aggrieved by any adverse order or if the representation is not attended to within the statutory period, he can avail of the remedy provided to him under the law before the appropriate forum. The appeal being premature is therefore dismissed.
5. Whether the posting of respondent No.3 was motivated as a result of nepotism by adopting an equal circuitous methodology is a question which calls for a detailed discussion and presently this Tribunal shall avoid embarking upon the exercise, same having filtered away by dismissal of the appeal on legal plinth.