MRS. AYESHA A. MALIK, J.--- This common judgment decides upon the issues raised in the Writ Petitions detailed in Schedule 'A', appended with this judgment.
2. The petitioners are all working with the Prosecutor-General Punjab. They are aggrieved by the transfer orders issued by the Secretary Government of Punjab, Public Prosecution Department in this case dated 30-6-2014. The main grievance of the petitioners is that the respondent No,2, Secretary Prosecution Department is not competent to issue the transfer orders because under the Punjab Criminal Prosecution Service (Constitution, Power and Service) Act, 2006 (2006 Act), the competent authority is the Prosecutor General Punjab, being the respondent No,3.
3. The petitioner in W.P. No,19330 of 2014 is Assistant District Public Prosecutor (ADPP) (BS-17) who was transferred vide order dated 30-6-2014 from District Sheikhupura to District Rahim Yar Khan.
The petitioner in W.P. No,19613 of 2014 is ADPP who was transferred vide order dated 30-6-2014 from District Sheikhupura to District Nankana Sahib. The petitioner in W.P. No,19614 of 2014 is ADPP who was transferred vide order dated 30-6-2014 from District Sheikhupura to District Attock. The petitioner in W.P. No,19615 of 2014 is ADPP who was transferred vide order dated 30-6-2014 from District Sheikhupura to District Rahim Yar Khan. The petitioner in W.P. No,19616 of 2014 is ADPP who was transferred vide order dated 30-6-2014 from District Sheikhupura to District Gujranwala. The petitioner in W.P. No,20545 of 2014 is ADPP who was transferred vide order dated 30-6-2014 from District Lahore to District Gujranwala. The petitioner in W.P. No,33302 of 2014 is ADPP who was transferred vide order dated 9-12-2014 from District Lahore to District Kasur.
4. Learned counsel for the petitioners argued that the petitioners are public servants by virtue of section 18 of the 2006, Act. The Prosecutor General is the head of the Service in terms of section 5(2) of the Act, 2006. The Prosecutor General is the competent authority to pass all orders of transfer and posting as has been laid down by the Hon'ble Supreme Court of Pakistan in the case titled Province of Sindh through Chief Secretary, Sindh, Sindh Secretariat and another v. Prosecutor General Sindh, Criminal Prosecution Department and others (2012 SCM R 307). Learned counsel argued that in terms of the dicta laid down by the Hon'ble Supreme Court of Pakistan, the Prosecutor General is the competent authority to order the transfer and posting' of his subordinates because he is the head of the Service, He is responsible for the superintendence of the working of all Prosecutor General, Deputy Prosecutor Generals and Additional Prosecutor Generals. The Prosecutor General is in a better position to make decisions vis-a-vis transfer of members of the Service because he is the administrative head. Learned counsel further argued that transfer and posting falls within the administrative control and supervision of the Prosecutor General. He argued that the terms and conditions of the Service are subject to the 2006. Act.
Learned counsel further argued that the petitioners are public servants. Hence this Court has jurisdiction.
5. Report and parawise comments have been filed by the respondents. Learned Additional Advocate-General (A.A.-G.) argued that the judgment of the Hon'ble Supreme Court of Pakistan cited at 2012 SCM R 307 (supra) is not applicable to the case of the petitioners. He further argued that the said judgment was rendered in relation to the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009 (2009 Act). He argued that there are two distinguishing features. The first distinguishing feature is that under the 2009 Act, no rules have been framed whereas under the 2006. Act, Punjab Criminal Prosecution Service (Conditions of Service) Service Rules, 2007 (2007 Rules) have been made in exercise of the powers conferred under section 15 of the 2006 Act. The second distinguishing feature is that the prosecution service in Sindh is headed by the Prosecutor General because the relevant Secretary there is the Special Secretary Law and Parliamentary Affairs. In the Punjab, he argued , that there is -a Secretary, Prosecution Department who is the head of the prosecution department and all the transfer and posting are ordered by the Secretary Prosecution Department. This is in line with all departments in the Government of Punjab, where for BPS-17 and above the Secretary is the appointing authority.
Under the 2006 Act and 2007 Rules, the Secretary Prosecution Department is the appointing authority for BPS-17 and above. Since these are appointments by transfer the competent authority is the Secretary Prosecution Department. He further argued that the petitioners are bound by the orders of the competent authority and their reliance on the judgment of the. Hon'ble Supreme Court of Pakistan is misplaced. He stated that under the Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007 and the Prosecutor General (Miscellaneous Posts) Service Rules, 2011 the following are the Appointing Authorities in the Prosecution Department:--
1. Director Human ResourceBS-1 to BS-4
2. Prosecutor GeneralBS-5 to BS-15
3. Secretary ProsecutionBS-16 to BS-18
4. Chief Minister BS-19 and above The Appointing Authorities are competent to initiate disciplinary proceedings/suspend or dismiss an officer under section 2 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 read with Notification No,SORI(S&GAD)1-30/2003 dated 13-2-2013 issued under section 2 of the Act ibid.
6. Heard the learned counsel for the parties and gone through the record.
7. The petitioners are all ADPPs in BPS-17, who have been transferred from their existing postings by the Secretary Prosecution Department. The 2006 Act establishes the prosecution department which includes the Punjab Criminal Prosecution Service. Under section 4 of the 2006 Act, the Service shall consist of the Prosecutor General, Additional Prosecutors General, Deputy Prosecutors General; District Public Prosecutors, Deputy District Public Prosecutors and Assistant District Public Prosecutors. Under section 5 of the 2006 Act, the superintendence and administration of the Service shall vest in the Prosecutor General. Under section 8(3) of the 2006 Act, all the appointments, except that of the Prosecutor General, to various posts in the Service, shall be made through initial recruitment in the manner as may be prescribed. Section 8(5) of the 2006 Act provides that the promotion or transfer in the Service shall be made in the manner as may be prescribed. By virtue of the rule making power under section 5 of the 2006 Act, the 2007 Rules have been framed. Rule 4(1) of the 2007 Rules provides for the manner of appointment such that appointment to a post in the Service may be through initial recruitment, promotion and transfer.
Rule 7 of the 2007 Rules provides that appointment through transfer may be made from amongst the eligible officers in accordance with the provisions with the schedule. The schedule appended with the 2007 Rules provides that for the post of ADPP the appointing authority is the Administrative Secretary. Therefore the 2006 Act and 2007 Rules when read together the competent authority for the purposes of appointment through transfer is the Secretary Prosecution Department.
8. The petitioners have relied upon 2012 SCM R 307 (supra) to urge the point that the competent authority is the Prosecutor General because he is the Administrative Head of the Service, he supervises the Service and all members of the Service report to him. In the said judgment when considering the issue of the competent authority for the purposes of transfer and posting, the relevant law was the 2009 Act. In that case it was argued that the Government of Sindh has the power to order the transfer and posting of members of the Service under section 5(1) and (3) of the 2009 Act. The argument relied upon the Sindh Government Rules of Business, 1986, read with Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 which rules are framed under section 26 of the Sindh Civil Servants Act, 1973. The argument there was that, the power of transfer and posting vests with the Sindh Government, to be exercised by the Secretary Law who has been notified by the prosecution department. The distinction drawn by the 'learned A.A.-G. Is that in the instant case the 2006 Act have to be read with the 2007 Rules in order to settle this controversy whereas before the Hon'ble Supreme Court of Pakistan under the 2009 Act no rules have been framed. To the mind of this Court, this distinction draws the instant cases out of the ambit of 2012 SCM R 307 (supra). In the instant case the 2007 Rules categorically provides for the competent authority with regard to appointment by transfer whereas in the matter before the Hon'ble Supreme Court of Pakistan no such rules were available. Therefore reliance on the dicta of the Hon'ble Supreme Court of Pakistan with respect to the administration head and supervisory head would not be relevant to the case of the petitioners.
9. In view of the aforesaid, all these petitions are dismissed.
Schedule A Details of Writ Petitions mentioned in judgment dated 28-11-2014 passed in W.P. No,19330 of 2014 Sr.No.W.Ps. Nos. Parties Name Counsel Name
1. 19330 of 2014 Muzaffar Ali Anjum v. Government of Punjab and othersMr. Muhammad Umer Riaz and Mr. Saqib Haroon Chishti, Advocates
2. 19613 of 2014 Ruqqaiya Mustafa v. Government of Punjab and others-do-
3. 19614 of 2014 Abid Iqbal Hafiz v. Government of Punjab and others-do-
4. 19615 of 2014 Zulfiquar-ul-Haq v. Government of Punjab and others-do-
5. 19616 of 2014 Fehmida Hayat v. Government of Punjab and others-do-
6. 20545 of 2014 Rahila Shahid v. Government of the Punjab and othersMr. Zubair Afzal Rana, Advocate
7. 33302 of 2014 Sh. Muhammad Nauman Siddiq v.
Government of Punjab Sheikh Muhammad Siddiq-II, Advocate