SYED ASGHAR HAIDER, J --- This single judgment shall decide the instant Writ Petition (W.P. No. 857 of 2008), Writ Petition No. 831 of 2008, Writ Petition No. 858 of 2008, Writ Petition No. 681 of 2008, Writ Petition No. 900 of 2008, Writ Petition No. 933 of 2008; Writ. Petition No. 1032 of 2008 and Writ. Petition No. 891 of 2008, containing common question of law and similar facts.
2. The petitioners are Patwaris and were transferred by the E.D.O.(R). Aggrieved thereof they filed representations before respondents No. 1 (District Nazim) pleading that their orders of transfer were male fide, result of nepotism and political victimization. It also was asserted that they are in violation of the transfer policy framed by the Government for transfers, Respondent No. 1 exercising powers under Section 18(g) and (o) of the Punjab Local Government Ordinance, 2001, suspended the transfer orders issued by respondent No. 2, despite this order respondents Nos. 2 and 3 failed to implement the same and completely disregarded It, therefore, through the instant petitions the petitioners pray that their orders of transfer be annulled and set aside.
3. The learned counsel for the petitioners contended that the impugned orders are male fide, result of political victimization by respondents Nos. 2 and 3, the orders were passed during a ban imposed by the Punjab Government and as such illegal, respondent No. 1 (District Nazim) is the head of the District Government and, therefore, competent to take cognizance of any illegality, or act of omission or commission committed within his jurisdiction, being financial, executive and administrative head of the District, thus, representation to him is in harmony and complete consonance with the provisions of the Punjab Local. Government Ordinance, 2001, as authority in this context has been bestowed upon him by Sections 13, 16 and 25 of the Ordinance (ibid), therefore, his orders were required to be implemented forthwith. The executive authorities, including respondents Nos. 2 and 3, are subordinated to respondent No. 1 and, therefore, are bound to obey his directions, to elaborate further, the learned counsel tor the petitioners stated that in case of discord or disagreement between respondent No. 1 and respondents Nos'. 2 and 3, the matter has to be referred by. Respondents Nos. 2 and 3, to the Local Government Commission, which after holding an,inquiry and examining the issue can forward the same, for decision to the Chief Executive of the Province, therefore, at best respondents Nos. 2 and 3 if dissatisfied could resort to this exercise, but have no authority to disobey or disregard the order of the District Nazim.
Further the orders of transfer are clearly mala fide, result of nepotism and political intervention by the 'local politicians, therefore, they.Have no sanctity in law.
4. The learned A.A.G. And the counsel for the respondents controverted the assertions, to plead that the petitions are not maintainable, - in view of the bar as contained' in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, because the matter emanates of, transfer and, therefore, clearly falls within the, terms and conditions of service, as such, respondent No. 1 or for that matter no other authority, except the one designated by law (the Tribunal) can interferewith the same, further the District Nazim being titular head of the District and,can exercise only those powers which have been bestowed upon him under the Punjab Local Government Ordinance, .2001.\ According to the Punjab Local Government Rules of Business, 2001, he has no power to pas orders of transfer of the petitioners, as his authority in this context is limited only to BS-19 and above, excluding E.D.O., District Officers and Principals of Degree Colleges, the power to transfer the petitioners vests only with respondents Nos. .2 and 3, as officials performing duties-in BS-1 to 18, fall within their exclusive domain in this context, to fortify:their contentions the counsel referred to the following precedent's:-
(i) Mst. Kalsoom Maqbool v. Secretary of Government of the Punjab Education Department, Lahore and 8 others (2002 P.L.C. (C.S.) 1118) and
(ii) Amjad Farooq and 9 others v. Gull Hameed Khan Rokhri, Minister for Revenue Relief and Consolidations, Punjab, Lahore and 2 others (2006 P.L.C. (C.S.) 20).
5. Heard.
6. The facts, as narrated, are admitted by the parties, therefore, need not be dilated upon. The orders of transfer of the petitioners were passed by respondent No. 2 exercising powers under the Punjab District Government Rules of Business, 2001, the petitioners admittedly are civil servants and the matter of transfer also clearly falls within the ambit and domain, of terms and conditions of service. Therefore, the bar of Article 212 of the Constitution is squarely applicable to the present /is, consequently, these petitions are not maintainable on this ground alone. I am fortified in this context by the following precedents:--- Asadullah Rashid v. Haji Muhammad Muneer and others (1998 S.C.M.R. 2129) and Peer Muhammad v. Government of Baluchistan through Chief Secretary and others (2007 S.C.M.R. 54).
7. The other proposition qua the authority of District Nazim, to suspend the orders of transfers made by respondent No. 2, exercising his powers under Section 18(g) and (o) of the Punjab Local Government Ordinance, 2001,' has been raised vehemently and it has been argued that by virtue of this power, respondent No. 1, has authority to over ride the authority of respondents Nos. 2 and 3 in this context. The language couched in Section 18 of the Ordinance (ibid) bestows multiple powers upon the Zila Nazim, but the pith, substance and crux of these powers is, decentralization, transparency and maintenance of administrative and financial discipline in' the District Government. The powers referred to in Section 18(g) and (o) of the Punjab Local. Government Ordinance, 2001, are no exception to this enactment , in fact, Section 18(g) adverts to maintenance of administrative and financial discipline in District Government, the transfer, therefore, of a civil servant clearly is outside the purview of this power, as maintenance of administrative and financial discipline, clearly means looking after the administrative and financial affairs of the district for the purpose of governance and ensuring that the powers ordained in the Punjab Local Government Ordinance, 2001, are implemented. This Ordinance nowhere bestows upon respondent No. 1 authority to interfere in the matters pertaining to the terms and conditions of service of civil servants including the power of suspending transfer orders and encroaching open the powers of another functionary of the District Government. As far as Section 18(o) is concerned the respondent No. 1 is required to issue executive orders to respondents Nos. 2 and 3 for discharge of functions decentralized, to the District Government. This power also does not include the power to interfere in the matter of other functionaries, further it only authorizes him to issue directions to these functionaries, therefore, he has no power to take over their administrative authority. In order to ensure that no interference is made, , by the Local Government Authorities exercising powers in the district into the affairs of each other the Ordinance, has empowered the Government to frame rules under Section 191 of the Ordinance, 2001, pursuant thereto Punjab District Government Rules of Business, 2001, were framed, according to these authority to post and transfer personnel/civil servants, discharging duty under BS 1-18 was delegated to respondents Nos. 2 and 3, and not respondent No. 1. However, respondent No. 1 has authority to exercise this power in respect of officers performing duty under BS-19 and above with the exception of E.D.Os., District Officers , and Principals of Degree Colleges. Therefore, the suspension order passed by respondent No. 1. suspending the transfer orders issued by respondent No. 2. is blatantly illegal and beyond his authority, hence the same it not tenable in law Further representation is a right' created specifically by a Statute, the present enactment or even Rules of Business do not grant any such right to-the District Nazim respondent No 1), -therefore, his taking cognizance upon ,the; representations made by the petitioners was- Without authority and 'patently illegal, consequently the same has no legal- sanctity and, therefore, cannot sustain. Lastly the issue of nepotism and transfer orders issued by respondents Nos. 2 and 3 behest of local politicians is also a pure, question of fact and, therefore, cannot be adjudicated in me' present jurisdiction. The petitions are that without merit and hence, dismissed.