MALIK MUHAMMAD AQIL AWAN, J.---The petitioner was appointed as Medical Officer BPS-17 on ad hoc basis under offer letter dated 16-1-1990. He had joined as Deputy Provincial Coordinator in National Program for Family Planning and Primary Health Care, on derailment basis under Notification dated 16-8-2006. He was recommended to be appointed as such on deputation basis for three years under letter dated 17-8-2006 by Secretary Health Department, Government of Sindh, and so recommended that his appointment may be converted into deputation against the same post for three years. Accordingly under Notification dated 4-9-2006 petitioner was allowed to work as Deputy Provincial Coordinator, National Program for Family Planning and Primary Health Care, on deputation basis, for three years with immediate effect. In pursuance of such order the petitioner has submitted joining report. Later on the petitioner has been repatriated/transferred from the said post and consequently petitioner was directed to report Health Department for further posting under Notification dated 22-9-2007 vice Dr. Imtiaz Ahmad Solangi, Senior Medical Officer BPS-18, Services Hospital Hyderabad, who was accordingly posted as Deputy Coordinator, National Program for F.P. & PHC Sindh. The petitioner has challenged this transfer order dated 22-9- 2007 by filing the present petition on 9-10-2007. Against the case of the petitioner as set up in the petition, on behalf of respondent, i,e, Secretary of the Administrative Department, comments are filed in which the plea has been taken that the post of Deputy Provincial Coordinator falls within BPS-18 and since suitable officer was not available at the relevant time therefore, petitioner was posted on derailment basis which was converted into deputation basis. Since the officer of BPS-18 had become available therefore, he was posted against post of equivalent grade and petitioner was ordered to report the Health Department, Government of Sindh for further posting, and the Secretary of the Administrative Department was competent to pass such transfer order with the approval of the competent authority. The new incumbent Dr. Imtiaz Ahmed Solangi (BS-18) has taken over the charge of the post of Deputy Provincial Coordinator on 29-9-2007 and is regularly working against the said post. The transfer being term and condition of service of in civil servant, bar of jurisdiction under Article 212 of the Constitution was also pleaded.
2. We have heard the learned counsel in support of this petition and asked him to address the Court mainly on the point of maintainability. The first and foremost question before the Court is as to whether transfer and posting is term and condition of service of the civil servant and amenable to the jurisdiction of Service Tribunal, consequently, barring constitutional jurisdiction of High Court.
The learned counsel for petitioner was not able to cite any judgment to the effect that transfer and posting is not the term and condition of civil servant. He was also unable to cite any case law where under it could be shown that High Court has exercised its constitutional jurisdiction in such like matters. We have also confronted him with the proposition that since alternate remedy of appeal before Service Tribunal is available to him for redressal of his grievance against impugned order, therefore, present petition may not be maintainable on this score.
3. Learned counsel for petitioner while arguing the petition on merits mainly contended that his transfer is illegal, without recalling the order of the deputation and he is entitled to serve as a deputationist for the period of three years. According to him, since the impugned order was absolutely an illegal order therefore, it could have been challenged in the constitutional jurisdiction of High Court notwithstanding, the availability of alternate remedy before the Sindh Service Tribunal. He went on to argue that since procedure provided under section 4 of the Sindh Service Tribunals Act, 1973, requires the civil servant to file departmental appeal within 30 days and thereafter to file appeal before Sindh Service Tribunal, the remedy of service appeal against such order is not efficacious. In support of his contentions he has placed reliance on a case of Aftab Ahmed Warsi v. Punjab Road Transport Corporation, reported in 1991 PLC (C.S) 484. The single bench judgment of the Lahore High Court was to the effect that in case of deputation the lending and borrowing departments are bound by the agreed arrangement and period of deputation could not be curtailed unilaterally. The question of repatriation can be decided only by mutual consent of the two authorities.
4. On the other hand, learned A.A.-G. Mr. Abdul Fateh Malik, has relied upon the case of Assadullah Rashid v. Haji Muhammad Munir, reported in 1998 SCMR 2129 as well as case of Peer Muhammad v.
Government of Balochistan, reported in 2007 SCMR 54. He contended that under section 10 of the Sindh Civil Servant Act, posting and transfer is the term and condition of service and therefore cannot be challenged before High Court in its constitutional jurisdiction.
5. That before proceeding to resolve controversy in the light of aforementioned facts and the case law cited by the learned counsel for the parties, we are very much perturbed to see that the petitioner has been appointed as Medical Officer BPS-17 on ad hoc basis in the year, 1990 and we do not find any averment in the petition to the effect that he has been regularized/confirmed either through Sindh Public Service Commission or under any statute. Therefore, if the petitioner has not been regularized till date, we expect that the respondent department would take necessary steps for his regularization in accordance with law within a period of six months from the date of this order. The Honourable Supreme Court of Pakistan time and again, in number of cases, has stressed the government functionaries either not to make ad hoc appointments and if it is so necessary in the exigency of service, it must not last more than six months. It is further held that making of ad hoc appointments is a negation of the rights of deserving and eligible candidates who can be 'appointed on regular basis.
6. There is another perturbing feature of this case showing that ad hoc appointee of BPS-17 was appointed and posted against the regular post of BPS-18 inasmuch as in the parawise comments administrative department itself has admitted that post of the Deputy Provincial Coordinator, is of BPS-18 and the person who was posted vice petitioner, Mr. Imtiaz Ahmed Solangi is also an officer of BPS-18. We strongly deprecate this conduct of the administrative department which has no legal backing and is in violation of service laws. Even under the services rules there is no provision which may authorize competent authority to post an officer of lower grade against post of higher grade, own pay and scale. This is merely an abuse of power and disentitle rightful deserving/eligible civil servants for their regular promotion/posting against such post. We expect from administrative departments that in future no civil servant of lower grade would be posted against the post of higher grade in his own pay and scale and in case, such post become vacant the same may be filled through initiating regular process of promotion or an officer of equivalent grade may be posted against the same.
7. With these observations, .We proceed to dispose of the respective contentions of the parties in order to resolve the controversy involved in this petition.
8. In the case of Aftab Ahmed Warsi, mentioned supra, relied upon by the learned counsel for petitioner may have some relevancy on merits of the case inasmuch as it has been held by the Single Bench of the Lahore High Court that deputation period cannot be unilaterally curtailed and in the absence of any provision, the question of repatriation can be decided only by mutual consent of the parties. It has further been observed that lending authority is not prepared to receive the petitioner and he is being thrown on the road. This case pertains to an employee of Punjab Road Transport Corporation and the case was heard on 27-2-1991 i,e, much before insertion of 2-A in the Service Tribunals Act, 1973, therefore, on the point of jurisdiction this case does not help the petitioner and its no reply to the proposition with which petitioner's counsel was confronted by us.
9. Learned A.A.-G. Mr. Abdul Fateh Malik, firstly relied upon the case of Assadullah Rashid v. Haji Muhammad Munir, reported in 1998 SCMR page 2129. This was also case of transfer against which constitutional petition was filed and such transfer order was suspended by the Lahore High Court after forming an opinion that order impugned was not only mala fide but was passed on account of political interference. On challenge before the Honourable Supreme Court the petition as converted into appeal and allowed with the observation that even if mala fide, ultra vires or coram non judice orders are passed the same would be . Amenable to the jurisdiction of Service Tribunal and jurisdiction of Civil Court including High Court was ipso facto ousted as result of barring provision of Article 212 of the Constitution.
10. The second case relied upon by learned A.A.-G. Is that of Peer Muhammad v. Government of Balochistan, reported in 2007 SCMR 54. In this case the controversy was regarding posting of "Director-General, Agriculture Extension" and the petitioner wants to be posted against the same and as such he had filed petition before the Balochistan High Court which was dismissed on the ground of jurisdiction. On further challenge before the Honourable Supreme Court, it was held that no civil servant had any legal right to be posted against particular post. Question of posting of a government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal 'would have exclusive jurisdiction to dilate upon and decide such matters and constitutional jurisdiction cannot be invoked to get such controversy resolved. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the constitutional ouster as contained in Article 212 of the Constitution.
1 1 . In another case of Muhammad Akram Tahir v. Secretary Education, Government of Punjab, Lahore reported in 1998 PLC (C.S.) 823, all such pleas raised on behalf of petitioner were taken into consideration and the Court itself found that the impugned order of transfer and posting was absolutely mala fide and was passed on account of interference of political personalities like MNAs and MPAs. Even then High Court has shown its inability to come to the rescue of the petitioner while adverting with the contention that High Court must maintain a check on arbitrary, whimsical and void transfer of civil servants, held that contention is quite appealing but cannot be accepted in view of bar of jurisdiction under Article 212(2). It was observed that constitutional jurisdiction under Article 199 is subject to ouster of jurisdiction under Article 212(2) in service matters. In presence of such bar, jurisdiction under Article 199 cannot be assumed by High court on premises that denial of writ jurisdiction would lead to oppression and arbitrariness as it is for law-maker to attend to such arguments.
12. That in view of the aforementioned legal position and the law enunciated by the Honourable Supreme Court, the argument of the learned counsel that in view of the fact that impugned order is unlawful, the bar of jurisdiction under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973, would not apply and so also on such score petition can be maintained despite availability of the alternate remedy is hereby repelled for not sustainable. It may be noticed that right from the promulgation of the Service Laws in the year, 1973, no Court has held so far, that in case of an adverse order having been passed in respect of terms and conditions of service of a civil servant, remedy of appeal under section 4 of the Service Tribunals Act, is neither efficacious nor can be treated as an alternate notwithstanding, the fact that order impugned suffers from gross violation of law or not. After reaching such conclusion we have no other option but to dismiss 'this petition in limine without any order as to cost.
13. On 27-3-2009 after hearing the learned counsel for the parties, by a short order this petition was dismissed in limine. Above are the reasons for the said short order.