HAFIZ TARIQ NASIM, J.- The petitioner was made a subject of frequent transfers and he filed Writ Petition No. 134972008, which was disposed of by my learned Brother Maulvi Anwarul Haq, J.
Through order dated 14-2-2008 directing the Chief Secretary. Government of the Punjab, to take all steps for deciding the representation/appeal filed by the petitioner within four weeks and while considering the same the contents of the judgment reported as Zahid Akhtar v. Government of the Punjab etc. (PLD 1995 S.C. 530) be kept in view.
2. After the disposal of writ petition oh 14-2-2008, the Chief Secretary afforded a chance of personal hearing to the present petitioner as well as respondent No. 4 Mr. Sajid Tanvir and recorded his findings in the following words:- "The case was examined and record perused-, ln line with the principles enunciated in the judgment titled "Zahid Akhtar v. Government of the Punjab etc." (PLD 1995 SC 530), the transfer of Rao Khurshid Alam, XEN, is premature and does not fall within the parameters of the above quoted judgment. The allegation of bringing outside influence for cancellation of transfer does not hold good as the transfer itself was made under outside influence.
Ln view of the above, I Salman Siddique, Chief Secretary Punjab, do hereby direct the department to cancel the transfer order of the representations after moving a summary to Chief Minister and bringing the factual matter to his notice."
3. The findings of the Chief Secretary dated 25-3- 2008 were submitted before the Chief Minister, The Principal Secretary to the Chief Minister recorded a note in the following terms:- "Chief Minister has seen and observed as under:- "Having gone through the case file, views of the Chief Secretary and orders passed by the Honourable Lahore High Court in Writ Petition No. 1349/08 filed by Rao Khurshid Alam, it transpires that the petitioner remained posted in Lahore since 2002 and was transferred to a post involving no change of station on account of administrative exigencies and public interest vide order dated SOEI(S&W)1-2/2005 dated February 4, 2008. The relief prayed for by the petitioner therefore is not in consonance with the principles enunciated in the case law titled "Zahid Akhtar v. Government of the Punjab etc." (PLD 1995 SC 530) by the August Supreme Court of Pakistan as the relief afforded by the apex Court in the said case was in the backdrop of successive transfers within a short span of time. The request of the petitioner therefore does not merit consideration as it is primarily aimed at retention of the post for vested interest contrary to the norms of office discipline and provision of Section 9 of the Punjab Civil Servants Act, 1974. Moreover, the transfer of the petitioner was ordered after prior concurrence from the Election Commission of Pakistan.
Ln view of the above, it is directed that the transfer/ posting order No. SOEI(C&W)1- 2/2005 dated February 4, 2008 may be implemented forthwith.
Further necessary action may be taken in the light of the above observation of Chief Minister:
4. This caused a serious prejudice to the petitioner, who filed the present writ petition.
5. The learned counsel for the petitioner-submits that the Chief Secretary, after holding in so many words that the petitioner's transfer was premature and does not fall within the parameters of Zahid Akhtar's case and even after directing the department to cancel the transfer order of Rao. Khurshid Alam, could not move summary before the Chief Minister being a departure from the provisions of Rules of Business of the Government of the Punjab which otherwise have force of rule and law.
6. The learned counsel for the petitioner has drawn the attention of the Court towards Rule 21(1) which is as follows:- "Approval of the Chief Minister wili be obtained before issue of orders in case relating to appointments, promotions, postings and transfers to posts mentioned in Schedule 4."
7. He has referred to Schedule 4, wherein the list of cases relating to appointment, promotions, postings and transfers which are to be submitted to Chief Minister before issue of orders contains only the post of Chief Engineers in the department of Communication and Works. Further submits that in the present controversy the Chief Secretary is the only competent authority to make transfers, which is endorsed in Schedule 5 of the Rules of Business.
8. After referring to Rules of Business and its Schedule, the learned counsel submits that according to the directions of this Court dated 14-2-2008 the Chief Secretary was under lawful obligation to decide the matter finally at his own end whereas submitting his own findings before the Chief Minister was virtually against the parameters of the order dated 1,4-2-2008 passed by this Court.
Further submits that the Chief Minister who does not fall in the hierarchy of the department under the Rules of Business in case of the petitioner's category, practically exceeded his lawful limits and the directions for implementation of order dated 4-2- 2008 are liable to be set aside being an outcome of colourable exercise of powers in an arbitrary manner.
9. Learned counsel for respondent No. 4 as well as the learned Assistant Advocate general submit that the present controversy relates to the terms and conditions of a civil servant and there is a bar envisaged under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, ousting the jurisdiction of this Court in exercise of writ.
10. Arguments heard. Available record perused.
11. First of all I will advert to the objection of the learned counsel for the respondent as well as of Law Officer.
12. There is no cavil from the proposition that in case of terms and conditions Of a civil servants the forum available to the civil servant is Service Tribunal but the aggrieved person can invoke the.
Jurisdiction of Service Tribunal only when there is final/appellate order in trie field and admittedly in the present controversy the directions of the Chief Minister are under challenge and there is ho final or appellate order which could be assailed before the Service Tribunal.
13. On the other hand, there is no prohibition contained with regard to the direction if made by the High Court in exercise of the jurisdiction under Article 199 of the Constitution because before application of Article 212 the terms and conditions of a person in the service of Pakistan/Province are to^be displayed which would prohibit that exercise of powers and jurisdiction, so each and every order/direction issued by the High Court cannot be presumed and assumed to be inf contravention of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 because the inherent and other powers and jurisdiction conferred by law and constitution can be restrained to be exercised when the matter/case is shown to have fallen within the domain and scope of prohibition. The .Jurisdiction vested with the High Court is wider in scope and extent while the constraints/ prohibitions are narrower in their applications and dimensions, lt is held that Courts are to be stretched to take into account all the disputes, to be resolved while limitation of jurisdiction and powers are to be squeezed and kept to the minimum extent. This is what I can call the rule of interpretation of jurisdiction, scope and limitation of Superior Court in Pakistan.
14. Viewed from all angles, the learned counsel for the respondent could not display as how the direction, if made to the Chief Secretary, can come within the realm of prohibited exercise of jurisdiction or it can be found in the powers or jurisdiction of Service Tribunal because in the present controversy it is evident on record that after the directions of this Court the Chief Secretary examined the case with application of independent mind, heard the present petitioner as well as respondent No.4 and then concluded in so many words that the transfer of the present petitioner Rao Khurshid Alam is premature and simultaneously directed the department to cancel his transfer order but surprisingly the Chief Minister who had no business at all in the impugned matter interfered only to give a benefit to respondent No.4 which otherwise is against all canons of justice rather a violative of law laid down by the Hon'ble Supreme Court of Pakistan in the case of Zahid Akhtar supra.
15. Resultantly, the matter is referred , to the Chief Secretary, Government of the Punjab with a direction to advert to his own findings dated 25-3-2008 and then pass an appropriate order at his own end without taking any instruction or direction from the Chief Minister.
16. This exercise be completed within a fortnight. However, till the final outcome of this exercise the petitioner shall not be disturbed from his present place of posting. The leamed Assistant Advocate General,, who is present in the Court, shall notify the order to the Chief Secretary for its compliance.
Disposed of.