' UMAR ATA BANDIAL, J.--- The petitioner is a grade 19 officer who has been transferred from the post of Principal Government College for Women, Karkhana Bazar, Faisalabad (GCW-KB") by order dated 26-8-2008 passed by the respondent No,2 in compliance with the decision of the Chief Secretary, respondent No,
1. Dated 24-8-2008. The decision of the respondent No,1 replaces the petitioner with respondent No,3, another Grade-19 Officer, whilst deciding the latter's representation under direction for its disposal by the learned Punjab Service Tribunal ("PST").
2. Presently the two orders dated 24-8-2008 and 26-8-2008 impugned in this petition are also challenged by the petitioner both before respondent No,1 and the learned PST. In answer to the objection to the maintainability of this petition on the ground of alternate remedy, it is explained by learned counsel for the petitioner that the first remedy availed is inadequate and the second one is unavailable to the petitioner. It is pointed out that the petitioner has filed mere representation and not a departmental appeal before respondent No,1, because no remedy is provided by the law in transfer matters. The petitioner's representation has not been heard so far nor is likely to be heard without a direction; it. Is therefore, termed to be inadequate.
3. With respect to the more significant objection under Article 212 of the Constitution, it is explained that the learned PST is currently without a Chairman as the erstwhile incumbent has retired and fresh appointment is awaited. Therefore in terms of section 3(3) of the Punjab Service Tribunal Act 1974, the Tribunal which should comprise a , Chairman, and two members is not properly constituted. The vacancy in the office of Chairman makes the constitution and continuity of the learned PST to be invalid. As a result, the remedy assured under Article 212 of the Constitution is not available and therefore no bar to maintainability of the instant petition is attracted.
3. A similar objection with regard to the constitution of the Lahore High Court under Article 192 of the Constitution was considered in Mr. Zulfiqar Ali Bhutto v. State PLD 1978 SC 40. A vacancy was alleged to have been created in the office of the honourable Chief Justice of the High Court when he assumed the office of Acting Governor. Under Article 192 of the Constitution such a vacancy was argued to denude the High Court of lawful constitution. The honourable Supreme Court held that Article 196 of the Constitution providing for the appointment of an Acting Chief Justice expressly contemplates the existence of a temporary vacancy in the office of a Chief Justice of a High Court.
An honourable Chief Justice cannot be deemed to have ceased to hold his office by the occurrence of a temporary vacancy in his office when he assumed the charge of Acting Governor.
In contrast the honourable Supreme Court approved the reasoning that retirement of an incumbent from office does constitute cessation in office.
4. In the present case, the Punjab Service Tribunal Act, 1974 does not contemplate the appointment of an Acting Chairman. Moreover, the term of office of the erstwhile Chairman has expired.
Therefore, the vacancy in his office cannot be considered to be temporary. Accordingly, the learned PST is indeed under a disability until the appointment of its new Chairman. Consequently, the objection of the learned Assistant Advocate-General and the learned counsel for respondent No,3 to the maintainability of the instant petition under Article 212 of the Constitution duly reinforced by judgments in Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCM R 2129 and Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCM R 54 is of no avail. The aforesaid rulings of the honourable Supreme Court cater for a situation where the forum of redress of a civil servant, namely, a learned Service Tribunal duly constituted in accordance with law is available for adjudicating relief. As the said forum of redress for the petitioner is presently not duly constituted in accordance with law, therefore, in Order to meet the ends of justice this case deserves to be heard on merits.
5. On 25-11-2005 the petitioner was promoted to BS 19 and posted as a Principal, GCW-KB against an existing vacancy. Upon coming to know of the said order, on 29-11-2005 the petitioner applied for cancellation of her posting order and instead sought the up-gradation of the post of Assistant Professor at which she working in GCW, Madina Town, Faisalabad. This request was turned down by the competent authority and accordingly the petitioner took charge as Principal of GCW-KB on 21- 12-2005. During the four months prior to the petitioner's appointment as Principal GCW-KB, the Vice-Principal of the college, respondent No,3, had been officiating as its Principal. As acting principal respondent No,3 began to nurture the expectation that she would be appointed Principal GCW-KB on regular basis. Her expectation is said to be based on her experience as Vice-Principal of the college for 14 years and for being senior in service to the petitioner by 5 years.
6. In the months that followed the petitioner's appointment, respondent No,3 developed hostile relations with the petitioner. Complaints were made by them against each other to departmental superiors. However, the Weight of opinion expressed by departmental authorities including, a report by the College dated 5-4-2007 and a summary for the Chief Minister prepared on the subject of the said complaints by the Education Department, unreservedly favoured the petitioner.
Nevertheless, vide directive dated 25-9-2007 the Chief Minister ordered the respondent. No,3 to be appointed Principal in place of the petitioner:.
7. Learned counsel for the petitioner claims that the said transfer order was procured through political pressure because it went against departmental opinion on record. The petitioner deeply resented her removal by such means. Accordingly, she filed an appeal before the learned PST which directed respondent No,1 by order dated 3-10-2007 to dispose of the petitioner's appeal pending before him. However, before respondent No,1 gave his finding, the petitioner succeeded in obtaining for herself a directive From the Chief Minister on 12-11-2007 posting her as Principal GCW- KB.
8. The respondent No,3 was greatly injured by her sudden removal under another directive. She filed a representation before respondent No,1 challenging her posting order dated 13-11-2007. At the personal hearing given by the respondent No,1 to the contending officers, the Education department again reported in favour of the petitioner who was therefore retained in the post.
However, no order was passed by the respondent No,
1. According to the impugned order dated 24-8-2008 the respondent No,3 went in appeal before the learned Punjab Service Tribunal to assail the departmental persistence to retain the petitioner.
9. A learned. Member of the PST on 20-6-2008 directed the respondent No,1 to dispose of the representation filed before him by respondent No,3. As a result the respondent No,1 has passed the impugned order dated 24-8-2008 installing the respondent No,3 to the office of Principal GCW-KB in the place of petitioner. As already mentioned, the petitioner has simultaneously invoked the dual remedies as her contender did but to aggravate the contest, this time the petitioner has also filed the present petition for relief.
10. Prima facie, the petitioner's recourse against a transfer order should be confined to departmental redress. However, the fact that the same matter has without final settlement gone to the learned Punjab Service Tribunal for the third time has invited the Court's attention to ponder if this situation is caused by neglect or excess in the exercise of jurisdiction by the respondent No,1 executive authority.
11. The learned counsel for the petitioner urges that the case for her appointment to the post of Principal has been considered and supported repeatedly by the Education Department on merits.
Except the grievance expressed by respondent No,3 there is no complaint against the petitioner.
The respondent No,3 employed unfair means to dislodge the petitioner from her post under the directive dated 25-9-2007. Seniority in service of the respondent No,3 over the petitioner is relevant vis-a-vis eligibility for appointment to a post but that cannot exclude the criteria of suitability and fitness of a candidate in the selection of a principal of a degree college. On the other hand, the learned counsel for the respondent No,3 has alleged that petitioner brought tension in the college atmosphere and also employed political clout to obtain a directive dated 12-11-2007 for her own re-appointment as Principal. The respondent No,3 claims the said post on the strength of her administrative experience as Vice-Principal and Seniority over the petitioner in BS-19.
12. The impugned order by the respondent No,1 records seniority of the respondent No,3 as the sole reason for reappointing her as Principal GCW-KB. The final and relevant paragraph of the impugned order is reproduced below:--- "In view of the above, I, [....], Chief Secretary Punjab, do hereby set aside the impugned order dated 13-11-2007 and direct that being senior, Mrs. Tahira Anwar may be posted as Principal, Government College for Women, Karkhana Bazar, Faisalabad. Mrs. Shahnaz Bashir may continue to serve in the said college as an Associate Professor if she wishes to do so. However, if she does not consider it appropriate to remain at the same college, she may be transferred to any other college in Faisalabad as Principal. If the post of Associate Professor of Sociology (BS-19) is not available in any female college at Faisalabad, the A.D may move a case to the Finance Department for upgradation of a post of Assistant Professor to Associate Professor by accordingly downgrading another post Associate Professor to Assistant Professor to maintain the equilibrium in the 4-tier structure. The appeal of Mrs. Tahira Anwar is disposed off accordingly. The honourable Court may also be informed."
12. The case has a few distinct features. As noted above, an ordinary transfer matter has invited judicial intervention by the learned PST for the third time to achieve settlement. This may indicate the misplaced self-esteem of the contesting officers or a sense of injustice experienced by either of then in dispensation of departmental remedies. The first inference is evidenced by the inclination of the contending officers to claim the post of Principal GCW-KB as a private preserve. This is against the law and service discipline. The second inference may arise because the rules of transparency and good governance elevate expectations of objectivity in executive decision making. It is apparent that the impugned order disregards departmental record to find seniority alone as the sole ground to appoint the respondent No,3. Seniority is a trite criterion that holds good for routine appointments to cadre posts. In a contested matter about selection for special posts in a cadre, the executive decision must contain a level of objective grounding that ends a controversy. This would require due to the suitability of a candidate to hold a post for which the record needs to be consulted and considered.
13. By installing respondent No,3 the impugned order wrongly concedes to a civil servant the right to claim and occupy a particular post. This diminishes the purpose of posting and transfer to meeting rewards or retribution and fuels the battle of prestige among zealous officers. Such developments affect good governance and damage service discipline and service morale. At the level of principles, the, impugned order is, therefore, simplistic; its terms are defensive showing hesitation, if not doubt. This has aggravated the conflict between affected officers in a matter on which ordinarily they should have no say.
14. No Government servant has the right to choose the office of his or her appointment. For this rule to be obeyed every government servant must be treated fairly which in turn would engender high morale and discipline in a service or cadre. A transfer order must neither wreak humiliation that cannot be justified nor satisfy personal scores among service peers to reveal abdication. Having said that, the matter of posting and transfer remains a subject that is governed by executive considerations and policy which are discretionary in nature. As such it is not appropriate for a court to interfere with such appointments. However, executive discretion is always structured and cannot be capricious. Therefore, a court can perceive when extraneous purposes, criteria and considerations drive executive orders in such matters.
15. In the present case, for the reasons given above the impugned order contains elements of retribution and reward that go against the record. Decisive action is required to conclude the controversy between the contending officers in a manner that reflects fairness and promotes the institutional values that are enshrined in the law, namely integrity, efficiency and discipline in the members of a service. Respondent No,1 is accordingly directed to review the object as well as consequence of the claims laid by the petitioner and respondent No,3 to the office of the Principal Government College for Women Karkhana Bazar Faisalabad, keeping the object of law and public interest uppermost in his mind. He shall pass a fresh order in the matter within 30 days from the date of communication of this order.
' Disposed of in aforesaid terms.