Petitioner Doctor Muhammad Tariq Gilani son of Ghulam Mohyud Din Gilani, EDO (Health), Khanewal vide Notification No. SO(GC)M-31/2003 dated 02.4.2010 was transferred with the direction to report to Health Department for further orders and Respondent No. 4 Dr. Syed Muhammad Hussain Naqvi was posted vice-present petitioner as Executive District Officer (Health), Khanewal.
2. Petitioner through this constitutional petition has challenged the vires of above referred Notification having been issued by Respondent No. 1 on political basis i.e. motivated by Respondent No. 3 who belongs to Muslim League (N) who contested elections for the seat of MPA but was not able to win; that Respondent No. 3 was appointed as District Coordinator vide letter dated 26.6.2009 and he recommended to the Chief Minister of Punjab for the transfer of petitioner; that Respondent No. 3 was demanding from the petitioner to bow before him for the fulfillment of his illegal demands which are reflected from the letters Annexures-E, E/1 and E/2 present on this file, that transfer of a civil servant purely on politically motivation has repeatedly been condemned by the Hon'ble Superior Courts of the Country; that this Court vide order dated 12.4.2010 sought parawise comments from Respondents Nos. 1, 2 & 3, which were submitted respectively.
Respondent No. 1 while submitting the parawise comments in Para C of the Preliminary Objections submitted as under: The Health' Department observed various irregularities on receiving number of complaints, against the petitioner (Annex"E"-Pages-12-19). The District Coordination Officer Khanewal intimated that prima facie charges of corruption/ maladministration against Dr. Tariq Gillani (Petitioner) have been proved by the probing committee. He recommended disciplinary proceeding under PEEDA Act 2006 against him as he is involved in embezzlement and poor performance of Health facilities of District Khanewal. Accordingly, the Chief Minister/Competent Authority approved his transfer from the assignment of EDO (Health) Khanewal on administrative grounds, irrespective of the observations raised by District Coordinator Rana Irfan Mahmood as alleged by him. It is solemnly affirmed that his transfer orders were issued after independently enquiring into his conduct and post record done personally by Secretary Health who reported the matter to the Chief Minister. He was accordingly transferred vide order dated 02.04.2010 and directed to report to Health Department. In compliance, he submitted joining report on 09.04.2010 (Annex"F"-Page 20).
Amazingly, he again exerted political pressure for cancellation of transfer order dated 02.04.2010 (Annex-G-Pages21-22). It is apparent that as against his assertions of political victimization, he himself has always benefited from political patronage. This, in fact, is the only time when the Department of Health, Government of Punjab has refused to bow to political pressure at all."
3. Respondent No. 2 in his parawise comments submitted as under:-- "The facts, in brief, of the case are that numerous complaints regarding corruption, misuse of authority and merit less recruitments in the Health Department, Khanewal were received. On receipt of such complaint from the Health Department. Government of the Punjab, an enquiry committee was constituted under the Convenership of Executive District Officer (Literacy), Khanewal. Probes regarding purchase of ambulances for Health Department, drawl of bogus TA/DA and misuse of Government vehicles also under process against the supervisory staff of Health Department, Khanewal. Inspection reports of Monitoring Evolution Assistants, were also showed indiscipline and lack of supervision on part of the Executive District Officer (Health), Khanewal. There were also certain question marks on integrity of the present petitioner who remained posted at Khanewal on various posts for so many years. and had established roots with the persons indulging in malpractices.
Rana Irfan Mehmood Khan, the District Coordinator (Health), Khanewal visited various health institutions in district Khanewal and submitted detailed reports regarding embezzlement, poor performance and maladministration on part of the present petitioner. The answering respondent examined these reports, previous complaints against the petitioner and his tenure. The answering respondent was of the view that further stay of the petitioner on his post was not in public interest.
Hence, the answering respondent requested the Government for taking necessary action against the petitioner vide Letter No. 2805-7 dated 17.03.2010 (Annexure-R-1). The competent authority transferred the petitioner on 02.04.2010 (Annexure R-2). In compliance of the transfer orders, the Respondent No. 4 assumed the charge Executive District Officer (Health), Khanewal on 03.04.2010 and the petitioner joined Health Department, Lahore on 09.04.2010.
In the meanwhile, an inquiry committee headed by Executive District Officer (Literacy), Khanewal submitted its report on 10.04.2010 with the findings that the allegations were proved. The committee recommended to request the Government of Punjab for constitution of inquiry committee at provincial level The committee also proposed that the record of the Executive District Officer (Health), Khanewal may be taken into safe custody (Copy of the inquiry report is Annexure R-3). In light of recommendations of the inquiry committee, the record pertaining to recruitment and purchases was taken into safe custody through Office Superintendent of DCO Office, Khanewal on 14.04.2010 to avoid tempering, misuse and destruction. The government of the Punjab, Health Department, Lahore was also apprised of this situation vide this office Letter No. 4109-10/Admin-1-2 dated 14.04.2010 (AnnexureR-4).
It is also mentionable here that the petitioner instigated the lower staff of the health department to agitate and protest against the answering respondent. They carried out a procession to the office of the District Coordination Officer, Khanewal and raised slogans against the answering respondent which was against the norms of service rules."
4.While Respondent No. 3 in his separate parawise comments refuted all the allegations levelled by the petitioner and in Para 3 of the comments, on facts, it was submitted as under:-- "The Respondent No. 3 rightly wrote a letter dated 04.03.2010 to Chief Minister, Punjab for the interest of Department and Public. The writ petitioner with mala fide intention wrote a letter dated 24.03.2010 to D.C.O Khanewal. The visit Reports of RHC Abdul Hakeem and RHC Sarai Sidhu BHU Jodh Pur, BHU HQ Nawaz Wala, BHU Kokar Hatta, THQ Kabirwala, DHQ Hospital, Khanewal are appended herewith. "
5. All the three respondents in their written reply/parawise comments raised preliminary objection that as transfer and posting basically comes within the ambit of terms and conditions of service of a civil servant, therefore, under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 this Court has no jurisdiction and if the petitioner has any grievance, he may approach the learned Service Tribunal for the redressal of his grievance.
6. After submission of parawise comments by the respondents, learned counsel for the petitioner on 3.5.2010 submitted CM No. 1121/2010 under Order I Rule 10 CPC read with Section 151 CPC mentioning therein that: The above-titled writ petition is sub-judice before this Hon'able Court and is fixed for today. The Respondent No. 1 secretary health in his comments (page 3 para-c of comments) has mentioned that applicant-writ petitioner was transferred by the orders of Chief Minister whereas the impugned transfer order dated 02.04.2010 shows that same has been issued by the orders of the Governor, thus, there is contradiction inter se comments and transfer order, thus, to resolve fore- mentioned anomaly it is necessary either to implead province of Punjab/governor through principal secretary as respondent in the writ petition or to requisition comments from the Governor as under Article 129 (as written in the petition) of constitution the executive authority of the province vests in the governor and not chief minister and shall be exercised by him directly or through officers subordinates to him in accordance with constitution." and it was prayed that Province of Punjab be impleaded as party in the writ petition.
7. Written reply of this application was submitted by Respondent No 1. Para 1 of written reply is hereby reproduced as under:-- "As per Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 the conduct of business of Provincial Government is to express, to be taken in the name of the Governor. The Executive Authority of the province is to be exercised in the name of Governor. Such authority, however, in exercise by the Provincial Government, therefore, Chief Minister, Minister or Officer having power delegated to them by the Provincial Governments. Hence all orders passed by the Provincial Government are to be used to issue in the name of the Governor. However, under Section 23 of Punjab Civil Servants Act, 1974 read with Punjab Civil Servants (Appointment and Condition of Service) Rules 6 of 1974, the Chief Minister is the Competent Authority to appoint/transfer officers of Grade-19 and above. (Annexures-R/1, R/2 & R/3). and it was agitated that Government of Punjab has already been impleaded as party, therefore, Province of Punjab need not to be arrayed as such.
8. It is further mentioned that during the pendency of this writ petition, petitioner also moved Crl.
Org. No. 239-W/2010 mentioning therein that although this Court vide order dated 12.4.2010 in C.M.No. 1-2010 suspended the operation of the impugned Notification but the respondents did not comply with the direction of this Court and created hindrance in his way and he was not allowed to join his place of posting.
9. All the above matters arising out of Writ Petition No. 3068/2010 the main writ petition are being disposed of by this single order.
10.Learned counsel for the petitioner argued that if the impugned Notification dated 02.04.2010 whereby petitioner was transferred is seen, it clearly shows that it was passed by the orders of the Governor of the Punjab, hence, clearly shows some political interference. Learned counsel for the petitioner has specifically referred the documents annexed with the petition as Annexures E, E/1 and E/2 and argued that Respondent No. 3 was appointed by the Government of the Punjab, although he had no official capacity he was just appointed as a Coordinator Health Department, Khanewal under the political influence of Muslim League (N) a ruling political party in the Province of Punjab who was exerting undue influence . on the petitioner for fulfillment of his illegal demands and when those were not acceded to be on the basis of his political influence get the petitioner transferred. Learned counsel argued that if the parawise comments submitted by Respondents Nos. 1 & 2 are seen, it has specifically been mentioned in respect of Rana Irfan Mahmood/Respondent No. 3 who recommended for the transfer of the petitioner. Learned counsel argued that it is necessary that Province of Punjab be allowed to be impleaded as party to this writ petition and the comments be sought from the Governor of Punjab as allegedly the impugned order is passed by the said authority; that the respondents have not submitted the true facts before this Court. It was further agitated that transfer of a civil servant purely on political motivation has clearly been condemned by the Hon'ble Superior Courts. Reliance is placed on (Roshan Khan, Set Government High School Kuz Pao, District Shangla Versus Director Schools and Literacy, N.W.F.P., Peshawar and 4 others) 2007 SCMR 599, 2007 PLC (CS) 428, 2009 PLC (CS) 94 and (Federation of Pakistan through Secretary, Cabinet Secretariat, Establishment Division, Islamabad and others Versus Israrul-Haque and others) 2005 SCMR 558. Prayed that C.M. No. 1121/2010 be allowed and parawise comments be sought.
11.On merits in the main writ petition it was submitted that in view of parawise comments submitted by the respondents, fact of political intervention is proved, therefore, impugned Notification is void, ab-initio, ineffective upon the rights of the petitioner, therefore, it be declared as null and void and same be set aside. It was further agitated that respondents have not honoured the direction issued by this Court as impugned Notification was suspended and hindrance was caused in the way of the petitioner for performance of his duties, therefore, proper and necessary action be also initiated in this respect.
12.On the other hand, learned counsel for the respondents have vehemently opposed this petition. It was specifically argued on behalf of Respondent No. 1 that under Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 it is specifically provided that all the executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor; that under the Punjab Government Rules of Business, 1974 which are framed under Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 for the conduct of Business of the Government of Punjab, Rule 11 specifically provides that all executive actions of Government shall be expressed to be taken in the name of the Governor; that under Rule 21 the appointments, postings, promotions and transfers are to be passed under the approval of the Chief Minister and the relevant rule governing these provisions is provided in the 4th Schedule of the said Rules. It was provided that under Sr. No. 11(c) all the other posts in BPS-19 and above are to be submitted for the approval of the Chief Minister before issuance of the orders; that the present Notification actually was issued under the said Rules with the approval of the Chief Minister of Punjab, accordingly under Article 139 of the Constitution and Rules of Business mentioned above the impugned Notification was issued by showing "by the orders of Governor of Punjab"; that no illegality whatsoever was committed. It was further agitated that there were so many complaints against the petitioner and on the basis of those complaints Respondents Nos. 2 & 3 conducted certain inquiries and reports were submitted and on the basis of all the said reports in the best public interest it was found by the competent authority that the petitioner be transferred. Even otherwise transfer and posting basically comes within the ambit of terms and conditions of service of a civil 'servant and Article 212 specifically bars filing of petition before this Court. If petitioner has any grievance, he may agitate the same before the Provincial Service Tribunal. It was further agitated that petitioner while filing this petition has suppressed material facts; that after issuance of the impugned Notification petitioner has relinquished his charge and assumed the charge of his place of posting and this fact was not disclosed. While relying on (Peer Muhammad vs. Government of Balochistan through Chief Secretary and others) 2007 SCMR 54, (Province of the Punjab through Secretary, Health Department versus Dr. S. Muhammad Zafar Bukhari), PLD 1997 SC 351 and (Secretary to Government of the Punjab Health Department, Lahore and others vs. Dr. Abida Abdul and another)
2009 SCMR 61, it was agitated that application under Order I, Rule 10 CPC was not maintainable as the Government of Punjab has already been impleaded as party through its Secretary; that the impugned Notification has already been acted upon by the petitioner and the Criminal Original No. 239-W-2010 for initiation of contempt proceedings was also moved based on false and fabricated facts. It was prayed that this petition be dismissed.
13.Learned counsel for Respondents No. 2 & 3 reiterated the stand above mentioned by learned counsel for Respondent No. 1, Learned counsel for Respondent No. 4 agitated that impugned notification has already been implemented, therefore, firstly the petitioner has no locus standi to challenge and secondly this petition is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
14.I have considered the arguments advanced by learned counsel for the parties.
15.The facts in detail have already been mentioned above. Admittedly, petitioner is a civil servant and he remained posted as EDO (Health), Khanewal. The impugned Notification was issued on 2.4.2010 and petitioner was directed to report to the Health Department for further orders. It is worth mentioning here that petitioner in this writ petition has suppressed this fact that he as a result of the impugned Notification has relinquished the charge. If parawise comments submitted by Respondent No. 1 are seen, it is specifically mentioned that in compliance of the above. mentioned Notification petitioner submitted joining report on 09.04.2010 (Annexure-F). The report is present at page 20 of parawise comments submitted by Respondent No. 1 wherein petitioner has specifically submitted the joining report. It clearly shows that at the time of filing of this writ petition the impugned Notification has already been acted upon. The question which was raised initially by learned counsel for the petitioner that as the impugned Notification contains that it was issued by the orders of the Governor of Punjab, therefore, some political influence is there. It has specifically been replied that under Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 all the executive actions of Provincial Government shall be expressed to be taken in the name of Governor. Article 139 is hereby reproduced as under for ready reference:-- Art. 139. (1). All executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor.
(2).The Governor shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the Governor.
(3).The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government."
16. Under Rule 11 of The Punjab Government Rules of Business, 1974 it has specifically been provided that all the executive actions of the Government shall be expressed to be taken in the name of Governor. Rule 21, ibid, is reproduced as under: "21. Appointment Postings, Promotions and Transfers:-- (1)Approval of the Chief Minister will be obtained before issue of orders; in cases relating to appointments, promotions, postings and transfers to poks mentioned in Schedule IV.
(2)Transfers of civil servants shown in column 1 of Schedule V shall be made by the Authority shown against each in column 2 thereof."
Schedule IV annexed with the said Rules provides list of cases relating to the appointments, promotions postings and transfers to be submitted to the Chief Minister before issue of orders. At Sr. No. 11(c) under the heading of "General" it is provided that:
(c) Department concerned. All other posts in BPS-19 and above (except transfers to posts under the High Court).
17.It is clear from the above mentioned discussion that impugned' Notification under Article 139 of the Constitution is required to be issued and shown the action taken by the Provincial Government in the name of Governor of the Province, that is why it was specifically mentioned so in the said Notification. Under Rule 11 read with Rule 21 and Schedule IV, ibid, it is the prerogative of the Chief Minister of the Province to pass an order for the transfer of an officer of the Grade-19 and above.
Petitioner admittedly is a Grade-19 officer, therefore, transfer order was to be issued by the concerned authority under the approval of the competent authority i.e. the Chief Minister of the Province. The main grievance of the petitioner agitated that his transfer was based on political motivation/influence, could not be substantiated from the record available. In view of the parawise comments submitted by Respondents Nos. 1 & 2 it is specifically mentioned that so many complaints were pending against the petitioner and inquiries were conducted and some actions were required to be taken against him. This controversy i.e. type of inquiries and what were the allegations need not to be discussed while disposing of this writ petition. It is also not necessary to mention the previous history, although it is brought on record that petitioner remained posted at Khanewal for a considerable period on the basis of political considerations of the then ruling political party at that time.
18.So far as C.M. No. 1121/2010 for impleading the Province of Punjab as a party is concerned, it is a belated effort on the part of the petitioner just to prolong the proceedings of this writ petition, otherwise, when Respondent No. 1 Government of Punjab through its Secretary Health Department has been impleaded by the petitioner, which is a proper and necessary party and accordingly comments have already been submitted. Hence, application under Order I Rule 10 CPC being without any lawful justification in the light of above discussion is hereby dismissed.
19.So far as main writ petition is concerned, as it is already discussed that impugned Notification was passed by the competent authority with the approval of the Chief Minister and no illegality could be pointed out by the learned counsel for the petitioner. The judgments cited by learned counsel for the petitioner specially 2007 SCMR 599 (Roshan Khan, Set Government High School Kuz Pao, District Shangla Versus Director Schools and Literacy, N.W.F.P., Peshawar and 4 others) which is a judgment whereby the Hon'ble Supreme Court of Pakistan declared the transfer of a Senior School Teacher on the basis of political influence, is not applicable in the present circumstances of the case. Even otherwise, if the said judgment is seen, it is clear that petitioner in that matter challenged his transfer before the NWFP Service Tribunal and failing which he preferred the civil petition before the Hon'ble Supreme Court of Pakistan.
20.As far as, the other judgments are concerned i.e. 2007 SCMR 54 (Peer Muhammad Vs. Government of Balochistan through Chief Secretary and others) it has different facts thus not applicable to the present controversy. In the Judgment cited by learned counsel for the respondents i.e. 2009 SCMR 61 (Secretary to Government of the Punjab Health Department, Lahore and others Vs. Dr. Abida Iqbal and another) their lordships have specifically held as under: We may, however, observe that by virtue of provisions of Section 9 of the Punjab Civil Servants Act, 1974, every civil servant is liable to serve anywhere within or outside the Province in any post under the Government of Punjab."
Another judgment cited as 2007 SCMR 54 (Peer Muhammad Vs. Government of Balochistan through Chief Secretary and others) their Lordships of Supreme Court of Pakistan have held that: "It is well-settled by now that the 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 controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. 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 of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters. In this regard we are fortified by the dictum laid down in case Kh.
Abdul Wahid v. Chairman, WAPDA 1986 SCMR 1534."
21.In the light of above discussion, firstly, as the impugned Notification is a transfer order passed by the competent authority in accordance with the prevalent rules and secondly the petitioner had acted upon it, as he relinquished the charge and subsequently assumed the charge as directed and later on he opted to prefer this writ petition. This writ petition in view of the above discussion in the light of the judgments cited above and in the light of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable. It is now settled law that transfers and postings are clearly fall within the ambit of terms and conditions of service of a civil servant, therefore, if the petitioner had any grievance he must have agitated the same before the Service Tribunal.
Resultantly, no merit in this writ petition, which is hereby dismissed.
22. So far as, Criminal Original is concerned, as already mentioned that the petitioner has suppressed material facts from this Court while filing this writ petition and no-doubt the impugned notification was suspended vide order dated 12.04.2010 but actual facts were not submitted before this Court and petitioner perhaps under the garb of orders passed by this Court whereby the impugned Notification was suspended, tried to assume the charge already relinquished and in order to make out a case he filed above mentioned Criminal Original for initiation of contempt proceedings, which was not maintainable. In the circumstances, specially in the light of the above discussion when the main writ petition has been dismissed, Criminal Original No. 239-W2010 is also hereby dismissed.