The petitioners have filed the instant writ petition with the following prayer:-- "In view of the above, it is most respectfully prayed that this writ petition may kindly be accepted and the impugned order dated 08.03.2010 may be declared illegal, void, arbitrary, without lawful authority, without jurisdiction, of no legal effect and the same may be set aside and the petitioners may be allowed to work in TMA Samanabad Town and TMA Nishtar Town from where the petitioners were permitted to join their Ph.D Programme.
It is also prayed that the respondent may be directed to correct the order of reinstatement dated 19.01.2010 and treat the petitioners reinstated in service w.e.f. 7.1.2010 as the operation of the impugned order dated 7.1.2010 has been suspended by this Honourable Court.
It is also prayed that till the final decision of the writ petition the operation of the impugned order dated 08.03.2010 may be suspended and the petitioners may be allowed to work at TMA Samanabad and TMA Nishtar Town respectively."
2. The brief facts succinctly required for determination of this writ petition as stated by the petitioners are that the petitioners are not civil servants but they are servants of the Punjab Local Government Board Lahore and are governed under the Punjab Local Council Service (Appointment and Conditions of Service) Rule, 1983, thus, do not fall within the bar contained under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. It is further stated that the petitioners had earlier filed Writ Petition No. 448/2010, which has been admitted by this Court and through order dated 13.01.2010, the suspension order of the petitioners was suspended. It is stated that Petitioner No. 1 is M.Sc. (Gold Medalist) from University of Engineering & Technology, Lahore whereas Petitioner No. 2 is also M.Sc. Engineering from University of Engineering & Technology, Lahore, and on the basis of which both the petitioners had been granted permission/NOC by the respondent after due consideration to take admission in Ph.D Programme (Evening Classes) in the Department of City and Regional Planning at University of Engineering & Technology, Lahore. The said NOC certificates have been granted to the petitioners vide letter No. LCS (Engg-TP)-1/93-P DATED 11.02.2010 and letter No. LCS (Engg-TP)-S(9)/93 dated 24.02.2010. It is further stated that after the grant o1 permission/ NOC the petitioners after hard work appeared in GRE Test in the University of Engineering & Technology, Lahore and Petitioner No. 1 secured highest marks in GRE Test, which had been duly acknowledged as is apparent from the press clipping Annexures-D to D/3, whereafter, the petitioners joined the Ph.D Programme at the University of Engineering & Technology, Lahore and are proceeding with their higher studies. In this regard the petitioners have already submitted their Ph.D. Research Proposals. It is also submitted that the respondent had earlier suspended the petitioners and other officers which order had been duly challenged before this Court and vide order dated 07.01.2010, this Court suspended the said order vide order dated 13.01.2010 and in view of the same, the respondent had passed another order Of reinstatement of the petitioners on 19.01.2010 with immediate effect and directed the petitioners to report to the Punjab Local Government Board. It is further stated that being annoyed of the filing of Writ Petition No. 448/2010 the respondent transferred the petitioners to TMA Bahawalpur and TMA Sadiqabad respectively vide order dated 08.03.2010 instead of recalling his order dated 07.01.2010 and reinstating the petitioners into ervice.
3. Learned counsel for the petitioners submit that the petitioners are being victimized and denied of their fundamental right of getting higher education even if any inquiry is pending against the petitioners, the respondent in those circumstances, under Section 6 of the PEEDA Act could put the petitioners under suspension but he could not have transferred the petitioners after the grant of permission/ NOC for their Ph.p Progamme; as such, the impugned order dated 08.03.2010 be struck down and this petition be allowed and the respondent be restrained from spoiling the 'education advancement of the petitioners in violation of the fundamental rights guaranteed under Articles 15,18 and 25 of the Constitution.
4. On the other hand, the learned Addl. Advocate General has vehemently opposed this petition and at the very outset states that the petitioners have not approached this Court with clean hands as in Para No. 2 of the petition, they have stated that they are not civil servants and are employees of the Punjab Local Government Board, Lahore adopted the contentions of the learned counsel for the respondent/Board. He further submits that the petitioners are not entitled to any discretionary relief; that the petitioners are governed by the PEEDA Act and as per the provisions of the PEEDA Act, this petition is maintainable before the Punjab Service Tribunal, hence; the petitioners have the alternate remedy of approaching the Service Tribunal. It is further stated that the impugned order dated 08.03.2010 is with regard to 12 persons; as such, the petitioners cannot claim that the same has been malafidely issued in a discriminatory manner against the petitioners. He further submitted that there is no proof with regard to the petitioners' joining the Ph.D. Programme. It is the vested right of the respondents to transfer the petitioners.
5. In rebuttal, learned counsel for the petitioners submits that in para 2 of the petition, the petitioners have clearly stated that the petitioners are not civil servant, they are servant of the Punjab Local Government Board, Lahore and are governed under the Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983; as such, no concealment has been made by the petitioners; as such, the bar under Article 212 of the Constitution would not deter this Court in striking down the illegal act on behalf of the respondent. The contention of the learned Addl.
Advocate General, Punjab has no basis at all.
6. Arguments from the learned counsel for the petitioners as well as of the learned Addl. Advocate General, Punjab, pro and contra have been heard and the material made available on the record has been taken into consideration.
7. It is an admitted fact that both the petitioners had applied for permission/ NOC for further advancement of their educational qualification for joining the Ph.D Programme (Evening Classes) in the University of Engineering & Technology, Lahore, and on the making of applications to the respondent, both the petitioners have been duly accorded permission/NOC vide letter No. LCS(Engg-TP)-1/93-P DATED 11.02.2010 and Letter No. LCS (Erigg-TP)-S(9)/93 dated 24.02.2010; thereafter, the petitioners appeared in GRE Test' and secured highest marks in the said test. The petitioners have joined the Ph.D Programme and they have also submitted their Ph.D Research Proposals and not only the petitioners have incurred expenses in taking admission in the said programme after obtaining due permission/ NOC from the respondent; therefore, at this stage of their studies, by transferring the petitioners vide impugned order dated 08.03.2010 to far off places, i.e. Bahawalpur and Sadiqabad, depriving the petitioners of their right of getting higher studies when their proposals have been accepted and the supervisors have been appointed, would amount to deprive the petitioners of their fundamental rights guaranteed under the Constitution, therefore, the impugned order dated 08.03.2010 is unjustified and arbitrary and is to be considered to be illegal and void. In the case of Mrs. Abida Parveen Channar Vs. High Court of Sindh at Karachi (2009 SCM R 605), it has been held that "all the public powers must be. exercised reasonably and honestly for the. purpose for which the same are conferred".
8. In view of the Above, this writ petition is accepted and the impugned order dated 08.03.2010 is declared illegal, void, arbitrary and has been issued without lawful authority and of no legal effect; therefore the impugned order dated 08.03.2010 to the extent of the petitioners is set aside as the same amounts to deprive the petitioners of their fundamental rights provided under Articles 4, 8 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973. Even if any inquiry is pending against the petitioners, in those circumstances, the respondent could suspend the petitioners under Section 6 of the PEEDA Act instead of transferring the petitioners.