' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- The petitioners seek leave to appeal against the orders dated 2nd of the September, 2005 and 7th of October, 2005 passed by a learned single Judge of the Lahore High Court at Multan Bench.
2. Precisely stating the facts of the case are that respondent No,1 being a P.C.S. Civil servant of the Provincial Government was transferred on 29th October, 2003 for a period of three years to Punjab Small Industries Corporation. It may be noted at this stage that as per the condition 17 of the order, the Government had a right to withdraw/ transfer any deputationist at any time without assigning any reason. For convenience the said condition is reproduced hereinbelow:-- "Period of Deputation. The period of deputation shall not exceed three years, However, Government reserves the right to withdraw/transfer the deputationist at any time without assigning any reason.
In case, the deputationist retires while on deputation, the period of deputation shall stand expired on the date of his retirement.
' The deputationist shall automatically be treated as repatriated after completion of normal/extended period of deputation and any delay on the part of the deputationist in reporting back to his parent department shall be considered as an absence from duty.
3. It so happened that on 2nd of August, 2005, respondent No,1 who was working as Regional Director Small Industries at Mullah was made O.S.D. By the Managing Director along with all benefits which he was drawing as BS-19 officer. The respondent challenged this order by filing a Writ Petition (No,5294 of 2005). The Lahore High Court, Multan Bench on 2nd September, 2005 admitted the petition for hearing and suspended the operation of the order, dated 2nd of August, 2005. During the pendency of the petition, the Government of the Punjab through Chief Secretary passed a fresh order on 26th September, 2005, whereby the services of respondent as Regional Director, Multan were withdrawn and he was posted in Punjab Economics Research Institute. This order was again assailed by the respondent by invoking constitutional jurisdiction of the High Court by filing a Writ Petition (No,6038 of 2005). The same learned single Judge in Chambers of the High Court, on 7th of October, 2005, again entertained the petition and suspended the order of his transfer. Relevant para. Therefrom is reproduced herein below:-- ' Inter alia, it is contended that the petitioner was promoted by the order of the Governor of the Punjab on 29-10-2003, to the rank of Additional Secretary to Government of the Punjab/equivalent post (BS-19) on regular basis and he was posted as Regional Director, PSIC against a vacant post, on deputation, however, vide order, dated 2-8-2005 issued by the Director (Administration) PSIC, Lahore (respondent No,5), on behalf of the Managing Director PSIC, Lahore (respondent No,4) the petitioner was posted as 0.S.D., PSIC Regional Office, Multan. This order was challenged by him through Writ Petition No,5294 of 2005 in this Court and the said respondents were directed to submit the report and parawise comments and the operation of the said order has also been suspended on 2-9-2005. Pursuant thereto, petitioner has restarted functioning as Regional Director, PSIC, Multan. Now all of a sudden, without any legal and factual justification and in order to frustrate the order passed by this Court in Writ Petition No,5294 of 2005 and the matter being sub judice, was not taken into consideration at all, thus, the impugned order is tainted with malice particularly when the petitioner (in BPS-19) has been transferred to a post in BPS-18. It does not matter at all that the said post was shown to be upgraded till the petitioner remains posted against the same. No circumstances at all have been stated in the impugned order as to what for the same had been passed."
4. The learned counsel for the petitioner contended that the Provincial Government in exercise of the powers available to it under condition No,17 of the order, dated 20th December, 2003 which has been reproduced hereinabove retains the authority to transfer its officer who is on deputation to another organization. Therefore, the High Court in exercise of powers under Article 199 had no jurisdiction to entertain the petition for the purpose of enquiring as to why without assigning any reason, an officer has been transferred. According to the learned counsel, the respondent has been posted in the Punjab Economic Research Institute, Lahore against the post of BS-19. He further stated that under section 9 of the Punjab Civil Servants Act, the Provincial Government enjoys the prerogative to post and transfer its employees anywhere within or outside the Province and the employees have no right to question the transfer. He further stated that both the impugned orders dated 2nd September, 2005 and 2nd October, 2005 have also been passed contrary to the provision of Article 212 of the Constitution of the Islamic Republic of Pakistan according to which all such matters fall within the exclusive jurisdiction of the Service Tribunal and the High Court cannot assume the jurisdiction for the purpose of granting relief to an individual employee. Reliance in this behalf has been placed by him on the cases of Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad and others 2004 SCM R 521 and Government of the Punjab and others v.
Muhammad Zafar Bhatti and others PLD 2004 SC 317.
5. After hearing the learned counsel and having gone through the material so available on record , leave to appeal is granted, inter alia, to examine the contention so put forward by the learned counsel. As ordinarily in cases of transfer of the employees stay is not granted by the Courts in view of the law laid down by this Court in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 as well as in Secretary Education, N.-W.F.P. Peshawar and 2 others v.
Mustamir Khan and another 2005 SCM R 17, therefore, pending decision of the appeal arising out of this petition, the operation of the orders dated 2nd September, 2005 and 7th October, 2005 are suspended.