' CH. IJAZ AHMAD, J.---The petitioner has challenged the vires of order of respondents dated 31-5- 2004 through this constitutional petition.
2. The learned counsel of the petitioner submits that order dated 31-5-2004 is not sustainable in the eyes of law as it is not order of transfer of the petitioner. He further submits that respondent No,4 secured order under the influence of politicians as is evident from Annexure 'B' attached with the writ petition. He further submits that the petitioner is permanent employee of the department; whereas respondent No,4 is on probation period and he has only served for 6 months. He further submits that the impugned order is not sustainable in the eyes of law.
3. The learned Law Officer entered appearance on Court's call, he submits that the writ petition is not maintainable.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to reproduce the contents of impugned order and Annexure-s B' to resolve the controversy between the parties:-- ' Contents of impugned order dated 31-5-2004.
' Munshi Syed Zafar Abbas, Patwari Halqa Niaz Baig and Munshi Tahir Zahoor Patwari Halqa Baghanwala should change place with immediate effect in public interest.
(Sd)
Settlement Officer/Collector District Lahore.
' Contents of Annexure-'B'.
Sardar Muhammad Asif Nakai, MNA has conveyed that Syed Zafar Abbas Patwari, presently working in Patwar Halqa, Niaz Begum Justice, be transferred and posted at Patwar Halqa Baghanwala, Tehsil City, Lahore.
2. It is submitted that Munshi Tahir Zahoor Shah, has been posted as Patwari Halqa Baghanwala and is there for the last two years.
3. Submitted for information and further necessary action please.
(Sd)
Settlement Officer/Collector, District Lahore.
' In case, the aforesaid documents be read together then it is crystal clear that respondent No,4 secured order under the influence of politicians. It is settled principle of law that under the provision of Punjab Civil Servants Act and rules framed thereunder, the politicians do not figure anywhere. It is settled principle of law that the public functionaries are duly bound to act in accordance with law in view of Article 4 of the Constitution read with section 24-A in the General Clauses Act, after applying their own independent mind, as per principle laid down by the Honourable Supreme Court in M/s. Airport Support Service's case (1998 SCM R 2268). It is also settled principle of law that everybody is bound to obey the command of Constitution by Article 5(2) of the Constitution, as per law laid down by the Honourable Supreme Court in Ch. Zahoor Elahi's case (PLD 1975 SC 383). It is also settled principle of law that in case, the competent authority has passed the order under the direction of its Superior, then the same is not sustainable in the eyes of law, as per law laid down by the Hon'able Supreme Court in Ghulam Mohy-udDin's case (PLD 1964 SC 829). It is admitted fact that the petitioner and respondent No,4 are civil servants and the posting and transferring is a part and parcal of terms and conditions of service, therefore, the constitutional petition is not maintainable in view of law laid down by the Hon'ble Supreme Court in the following judgment:- ' Nazir Hussain Ex-Director v. N.-W.F.P. Through C.S. And others (1992 SCM R 1843)
' Rana Muhammad Sarwar v. Government of Punjab and others. (1990 SCM R 999).
' The Honourable Supreme Court has considered this aspect of the question of law in Zahir Akhtar's case (PLD 1995 SC 530) and laid down the following principle:-- 'A reading of Rule 21(2) with Schedule IV of the Rules of Business ibid, makes it clear that the transfer of a Section Officer/under Secretaries and other officers of equivalent rank within the department is to be done by the Secretary of that department. Rule 21 of the Rules of Business, which deals with power of posting promotion and transfer of Government servants does not contemplate exercise of these powers by the Minister. The normal a period of posting at a station, according to the above-referred policy decision of the Government, is 3 years, which has to be followed in the ordinary circumstances, unless for reasons of exigencies of services mentioned in the aforesaid policy of Government, a transfer before expiry of 3 years' period becomes necessary in the opinion of competent Authority. The transfer orders in the present case, therefore, could neither be justified on the plane of policy directive of Government referred to above, nor they were sustainable on the language of Rule 21(2) read with Schedule V of the Rules of Business, ibid. We are in no doubt that if the transfer orders in the case before us would have been made in accordance with the policy directives of the Government referred to above and power was exercised by the competent Authority as contemplated by Rules 21(2) read with Schedule V of the Rules of Business, ibid, there would have been no room for manoeuvring by the officers affected by such transfer. The fact that the transfers were made in violation of policy directive of the Government, which has the status of a Rule, and provisions of Rules 21(2) ibid, were not followed strictly, opened the door for the Government servant concerned to bring in outside influences to obtain the desired transfers. We are also sorry to note that the Secretary LG and RD. Neither resisted these unethical and undesirable moves of his subordinates nor he pointed out to the Hon'ble Minister Incharge, that the transfer orders made by him from time to time in respect of various officers of his department were neither in conformity with the declared policy of Government nor these transfer orders conform to the provisions of Rule 21(2) of the Rules of Business, ibid. It was the duty of the Secretary LG and RD, to have pointed out to the Minister concerned the extent of his authority in such matter, besides bringing to his notice that such frequent transfer of a Government servant could neither be justified as the exigencies of service nor it could be described in the public interest. We are constrained to observe that such unconcerned and lukewarm attitude on the part of Head of a Government Department is not expected to promote discipline or efficiency in the department. On the contrary such attitude may have a demoralizing effect on the subordinates encouraging them to seek intervention and favour of outside agencies, which may ultimately adversely affect the overall discipline and efficiency in the department. We therefore, expect that the guidelines mentioned in the policy directives of the Government referred to above and the provisions of Rule 21 of the Rules of Business, ibid, will be kept in view by all concerned while dealing with the transfers of Government Servants. The office is directed to send a copy of this judgment to the Government of the Punjab for circulating it to all its departments, for future guidance. With these observations, this petition stands dismissed as not maintainable."
' In spite of the bar contained in Article 212 read with section 4 of the Service Tribunal Act, this Court has ample jurisdiction to give direction to the public functionaries to act in accordance with law laid down by the C Honourable Supreme Court in the following judgments:-- ' H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others (PLD 1981 SC 612).
' Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano (2003 SCM R 325).
6. In this view of the matter, let a copy of writ petition be sent to the Senior Member Board of Revenue concerned, who is directed to look into the matter and consider this constitutional petition as representation filed by the petitioner and pass an appropriate order strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and respondent No,4 preferably within 20 days after receiving the order of this Court. The petitioner is directed to appear before the Senior Member Board of Revenue concerned in his office at 11-00 a.m. On 10-6- 2004, who is directed to pass an appropriate order strictly in accordance with law in terms of aforesaid direction of this Court, either himself or sent the same to competent authority for its decision, who is also directed to pass an appropriate order strictly in accordance with law in terms of aforesaid direction of this Court preferably, within 20 days till 30-6-2004.
7. The learned counsel of the petitioner is directed to hand over copy of writ petition along with all the to Mr. Muhammad Hanif Khatana, Addl. Advocate-General, who annexuresis directed to send the same to the Senior Member Board of Revenue concerned for necessary action and compliance. Office is also directed to provide one copy of this order to the aforesaid learned Law Officer for onward transmission to the Senior Member Board of Revenue concerned for necessary action and compliance With these observations, the writ petition is disposed of. Copy Dasti on payment of usual charges.