Faisal Zaman Khan, J:- Through this single judgment we intend to decide the present Intra-Court Appeal (I.C.A.No.323/2014) and the connected Appeals (I.C.A.Nos.321, 323 to 328, 330 to 333 and 356 of 2014). Through these appeals a judgment dated 24.03.2014 passed in W.P.No.9077/2013 by a learned Single Judge in Chambers has been assailed, by virtue of which connected writ petitions filed by the appellants were dismissed.
2. The facts germane to the present controversy are that the Government of the Punjab introduced a scheme namely Cluster Training and Support Centre (CTSC) for which separate budget was sanctioned for creation of posts of District Teacher Educators (DTEs) under the Directorate of Staff Development Punjab. Initially CTSCs were to be established in 6 Districts of Punjab. A separate selection criteria was evolved for selection of DTEs, which included written test and interview and final approval by a selection committee. Certain attractive incentives were offered to the teachers already performing their duties under the Punjab Education Department, to offer themselves for selection as DTEs.
3. After going through the process, the appellants on the recommendation of the recruitment committee, were posted/placed in different schools in 2007. Subsequent thereto, through different letters issued in 2013, the appellants were repatriated/transferred back and placed at the disposal of Executive District Officer (Education) for further adjustment. These orders of repatriation/transfer were assailed through numerous writ petitions which were decided through the afore-noted impugned judgment, hence, these appeals.
4. While opening arguments on behalf of the appellants, Hafiz Tariq Nasim, Advocate learned counsel for some of the appellants submits that Government of the Punjab introduced a scheme of Cluster Training Programme on certain terms and conditions upon which DTEs were appointed on full time basis. In furtherance of this, appellants were appointed as DTEs after tests and interviews which according to him were fresh appointments through posting under Rule 9 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974. Therefore, the same could not be construed as transfer simpliciter. In view of the above he asserts that the appointments in question could not have been withdrawn by repatriating the appellants to the Education Department that too without issuing a show cause notice or affording an opportunity of hearing. He further submits that appellants have been repatriated due to their poor performance which is a stigma. Therefore, an inquiry was mandatory apart from issuance of notice and hearing. He emphasizes that a policy of pick and choose has been adopted by the respondent-department in repatriating DTEs; favorites have been retained and appellants have been repatriated which apart from being a malafide act on the part of the department is also discriminatory. He maintains that such act is also violative of Article 25 of the Constitution of the Islamic Republic of Pakistan. He alleges that in place of appellants when fresh appointments of DTEs will be made, it shall cause loss to the exchequer because millions of rupees have already been spent on the training of the appellants.
He, therefore, argues that retention of the appellants will even otherwise enure to the benefit of the exchequer.
5. Learned counsel representing appellants in connected appeals, have adopted the arguments advanced by Hafiz Tariq Nasim, Advocate.
6. Mr. Muhammad Azeem Malik, learned Additional Advocate General Punjab while appearing on behalf of the respondent department submits that the appellants were transferred/posted to the post of DTEs being regular employees of the Education Department. Therefore, there was no question of any fresh appointment. He submits that the mandate of the programme was to train teachers at the district level, so that their performance could be enhanced. Apart from the above, he has raised an objection regarding maintainability of the writ petitions as well as the Intra-Court Appeals invoking the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan. He submits that the appellants are civil servants and the matter in issue relates to their transfers/postings, which is part of their terms and conditions of service, therefore, interference of this Court is not warranted.
7. Mr. Waqar. A. Sheikh, learned counsel appearing for respondent No.1 while adopting the arguments of the learned Law Officer adds that the Multan Bench of this Court in identical circumstances has dismissed W.P.No.8013/2013, against which Review Application No.12/2013 was filed, which was also dismissed by a Division Bench of this Court. Thereafter, an Intra-Court Appeal was preferred, which also met the same fate. Therefore, even otherwise, no interference in the present proceedings can be made following the rule of consistency.
8. We have heard the learned counsel for the parties and have gone through the available record.
9. From the aforenoted facts and the documents appended with the appeals, transpires that the Government of Punjab launched a major initiative in 2007 through Punjab Education Sector Reforms Programme (PESRP) for enhancing the professional skills of primary school teachers in order to improve quality of education. In furtherance of this, Directorate of Staff Development, Punjab, Lahore (DSD) launched a Continuous Professional Development Framework Programme (CPDFP) in 2007 under which posts of DTEs were created. Thereafter, on 23.04.2007, terms and conditions for the selection of DTEs were circulated by the DSD which are reproduced below:- "Ref.No.DSD/DD(P)/2006-81/4047 Dated:23.4.2007 To.
1. All District Nazims in the Punjab;
2. All District Coordination Officers in the Punjab.
3. All Executive District Officers (Education) in the Punjab.
4. All District Monitoring Officers in the Punjab.
5. All Heads of District Training & Support Centers (DTSCs) in 35 districts of Punjab; Subject: TERMS AND CONDITIONS FOR THE DISTRICT TEACHER EDUCATORS (DTEs)
On the recommendations of the Directorate of Staff Development Punjab (DSD), the Education Department has, vide order No.SO(TRG)2-15/2003 dated March 31, 2007, approved the following terms and conditions for the District Teacher Educators (DTEs): a. They are posted as DTEs simply by transferring them from their present place of posting; b. They will draw their salary as per their Last Pay Certificate issued by the Accounts Officer/Accountant General Punjab; c. They will draw Rs.3000/- as an incentive pay allowance and Rs.1500/- as mobility allowance; d. These allowances will not be included in their pay for their pension; e. Their seniority will remain intact within their parent cadre and they would be considered for promotion on their turn; f. They will continue to be governed by all government rules as applicable to all government servants; g. They would work under administrative control of their respective Heads of the DTSCs; h. Their ACRs/PERs will be initiated by the Heads of CTSC concerned and countersigned by the Heads of DTSC concerned.
2. The DTSCs heads in the 12 districts, namely; Kasur, Okara, Attock, Gujrat, Faisalabad, Rajanpur, Mianwali, Sargodha, Sheikhupura, Muzaffargarh, R.Y. Khan and Mandi Baha-ud-Din, where the DTEs have already been placed, are requested to circulate this information amongst all the head of CTSCs and DTEs within their respective districts.
Sd/- (Dr. Rukhsana Zia)
Program Director."
10. Thereafter, for the selection of DTEs against the afore-noted posts a letter dated 24.05.2007 was issued by the DSD which is reproduced for convenience: "No.DSD/RPM/DTE/65/06/4536 Directorate of Staff Development Punjab, Wahdat Colony, Lahore.
Dated:24th May 2007.
To The Executive District Officer (Education), District: Subject: SELECTION OF DTEs AGAINST VACANT POSTS There are 1404 posts of District Teacher Educators (DTEs) in the 12 districts of the first phase for implementation of Continuous Professional Development Framework. With the approval of the Education Department, the Directorate of Staff Development (DSD) placed the services of 1378 teachers as DTEs at different clusters in the 12 districts. Posting orders of remaining 26 teachers could not be issued at they were found to be lacking in terms of requisite qualification for posting as DTEs. Subsequently, the DSD had to make a number of changes to remove the DTEs who got posted in violation of prescribed criteria. Resultantly, a number of seats at different clusters in 12 districts have fallen vacant or likely to fall vacant in near future.
2. The following committee is hereby constituted, in the 12 districts of the first phase, for selection of DTEs against the posts, which have either not been filled initially or those which have fallen vacant afterwards or are likely to fall vacant due to modification in the original orders by DSD:- i) The EDO (Education) (Convener/Chairman) ii) The Head of D.T.S.C. (Member) iii) The District Monitoring Officer (Member).
The Committee would make recommendations keeping in view the following: a) Cluster Specific applications will be invited by widely circulating the vacancy position through field formation of education department especially amongst the teachers of the cluster centre and the schools which are attached with the cluster centre for which selection is to be made. b) The applications will be scrutinized in terms of eligibility criteria (copy attached). c) To shortlist the candidates in terms of their suitability/proficiency, a mechanism based on tools like written test, presentation and interview may be devised. Short listing should be done strictly on merit. d) A cluster-wise merit list should be maintained as waiting list to avoid repetition of selection process. In case the selected candidate in a cluster becomes unavailable because of any reason the next candidate in the merit list would be offered the post. e) The candidates must be informed about the approved terms and conditions of the post (copy enclosed) and their names should only be recommended after they sign the consent/willingness form (copy enclosed).
Sd/- (MUHAMMAD AYUB)
ADDITIONAL DIRECTOR."
11. From the perusal of the above, it is clear and obvious that the posts of DTEs were to be filled from amongst the teachers, who were already holding regular posts with the Education Department.
They were simply to be TRANSFERRED/POSTED/PLACED for a period of 5 years with the stipulation that in case the government did not wish to retain them, they could be sent back or else if the employee did not wish to stay at his new assignment, he could go back. DTEs were simply given an additional incentive of Rs.3000/- plus Rs.1500/- per month as allowances and it was clarified that the same shall not be included towards their pension. It was also clarified that their seniority shall remain intact with their parent department and they will be considered for promotion on their turn.
The aforenoted terms and conditions were agreed by the appellants through a consent form. They cannot wriggle out of their own undertaking at this stage.
12. It is the admitted position between the parties that the appellants are civil servants, however, a distinction has been attempted to be drawn by the learned counsel for the appellants to the effect that the transfer/posting/placement as DTEs with the CTSC was a fresh appointment under Rule 9 ibid. The aforenoted distinction has not been fortified by any document which would show that this posting/placement was a fresh appointment under the rules. The bare minimum requirement for a fresh appointment was an appointment letter which the appellants have not been able to produce.
13. Contrary to their stance, it is evident from the record that through different orders, appellants were posted/placed as DTEs. For convenience, format of the order of posting/placement of the appellants is reproduced below:- "ORDER No.RPM (DSD)4-17/07/10093. In pursuance of Government of the Punjab, Education Department's order No.SO(TRG)2-14/2008 dated 08th March 2008, the following teachers of district Kasur are hereby posted/placed as District Teacher Educator (DTE) at the Cluster Training & Support Centre
(CTSC) mentioned against each with immediate effect. {{TABLE}} Sr.# Name of Teacher Desig. Scale Present Place of Posting Posted/Placed as DTE at CTSC. {{TABLE}} a. The above DTEs are directed to report for duty to the head of District Training & Support Centre (DTSC), i.e. Govt. College for Elementary Teachers Kasur. b. Each DTE will be paid an amount of Rs.3000/- per month as special incentive pay and Rs.1500/- per month as mobility allowance in addition to the salary and allowances being drawn by him/her. sd PROGRAMME DIRECTOR"
14. From the contents of the afore-noted extract, it is crystal clear that the appellants were merely posted/placed as DTEs and no fresh appointment was made. Columns No. 5 & 6 supra would clearly signify the intention of the competent authority as the same has been consciously passed keeping in view the present place of posting of the appellants and their subsequent placement/posting.
15. Keeping in view the aforenoted it is held that appellants are civil servants and were transferred/posted/placed as DTEs through different orders. Transfer/posting/placement is part of their terms and conditions of service. Therefore, in case they have been sent back/transferred/posted/repatriated, they cannot assert any right before this court in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan. We are guided by the dictum laid down by the Honourable Supreme Court of Pakistan in judgments reported as Secretary to Government of the Punjab Health Department, Lahore and others Vs Dr.Abida Iqbal and another (2009 SCM R 61), Peer Muhammad Vs Government of Balochistan through Chief Secretary and others (2007 SCM R 54), Syed Mazher Hussain Bukhari Vs Secretary, Government of Punjab, Local Government and Rural Development, Department, Lahore and others (1998 SCM R 1948), Asadullah Rashid Vs Haji Muhammad Muneer and others (1998 SCM R 2129) and Khalid Mahmood Wattoo Vs Government of Punjab and others (1998 SCM R 2280).
16. Apart from dealing with the question of transfer/posting of a civil servant, the Honourable Apex Court in the aforenoted judgments has dealt with the question that even if an order passed by a departmental authority qua terms and conditions of service of a civil servant is malafide, coram non judice, ultra vires or without jurisdiction, this Court has no mandate to look into or decide about the vires of such an order.
17. While discussing the bar contained in Article 212 of the Constitution, the Honourable Supreme Court of Pakistan has held in unequivocal and clear terms that the bar is absolute in view of the fact that under the aforenoted Article, respective Service Tribunals have been constituted to adjudicate upon and decide exclusively about the matters and issues pertaining to terms and conditions of service of a civil servants. Therefore, resort to this court by invoking Article 199 of the Constitution of the Islamic Republic of Pakistan cannot be made. The words in which Article 212 of the Constitution is couched, gives it an overriding effect over the other Articles qua the terms and conditions of service, whereas the jurisdiction exercised under Article 199 being subject to the Constitution would be ousted insofar as the terms and conditions of services of a civil servant are concerned. Reliance can be placed on the judgments reported as "Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCM R 456) and National Assembly Secretariat v.
Manzoor Ahmed and another (2015 SCM R 253).
18. As regards the question of opportunity of hearing, the Honourable Supreme Court of Pakistan in judgments reported as Gen. (R) Pervaz Musharaf v. Nadeem Ahmad (Advocate) and another (PLD 2014 SC 585 338) and Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another (PLD 2010 SC 483) has held that an opportunity of hearing is not mandatory in each and every case.
Even otherwise, there is no concept of hearing while posting/transferring a civil servant from one place/post to another. Therefore, this argument of the learned counsel for the appellants is also repelled.
19. The question of violation of fundamental rights will not vest this court with jurisdiction to adjudicate a question which pertains to terms and conditions of service of a civil servant. Reliance can be placed on I.A.Sherwani and others v. Government of Pakistan and others (1991 SCM R 1041)
20. In view of the above, appellants, who are civil servants and were merely transferred/posted/placed as DTEs with the CTSC for a limited period and subsequently transferred/posted/repatriated cannot assert a vested right against the said posts or before this court.
21. The upshot of the above discussion is that judgment of the learned Single Judge in Chambers does not require interference, therefore, the same is upheld. It is further held that in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan qua the enforcement of terms and conditions of service of a civil servant, the writ petitions filed by the appellants were not maintainable. These Intra-Court Appeals being not maintainable and also devoid of any merit are dismissed.