' JAWAD HASSAN, J.--- Through the instant Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the Petitioner has challenged the impugned order dated 26.05.2012 (Annexure-F) whereby the Respondent No,1 has rejected the grievance petition of the Petitioner.
2. The facts tersely revealed from the petition are that the Petitioner's services, who was working as Baildar (BPS-1) in Office of the Manager Fine Wool Sheep Farm 205/TDA District Bhakkar on contract basis, was regularized by the Respondent No,2 w,e,f, 14.10.2009. It is further alleged by the Petitioner that on his request, he was adjusted against the vacant post of Guard (BPS-01) vide Order dated 30.11.2010 which was subsequently withdrawn by the Respondents vide order dated 02.03.2011. It is also stated that the Petitioner moved application to the Respondent No,1 which remained unattended; consequent thereupon the Petitioner filed W.P. No,5078/2012 and this Court vide order dated 02.03.2012 disposed of the same with the direction to the Respondent No,1 to decide the grievance petition of the Petitioner. It is further alleged that the Respondent No,1 rejected the grievance petition of the Petitioner vide the impugned order. It is further averred that feeling aggrieved thereby the Petitioner again approached this Court by filing W.P. No,21505/2012 in which this Court vide order dated 05.12.2012 remitted the petition to the Respondent No,1 for decision which was again rejected. Hence, the instant petition.
3. Comments were filed on behalf of the Respondents Nos,1 and 2.
4. Learned counsel for the Petitioner submitted that the impugned order is illegal and unwarranted, as such liable to be set aside. Learned counsel further contended that the Petitioner had been adjusted against the vacant post of Guard (BPS-1) by the Department itself and now the Petitioner cannot be rescinded to his previous post subsequently on the ground that the adjustment order was against Departmental Policy. And Service Rules. Learned counsel also argued that the cadre and scale of Baildar and Farm Guard is same, as such the adjustment of the Petitioner cannot said to be against the Policy of the Department. Learned counsel further added that the principle of locus poenitentiae will apply on the case of the Petitioner.
5. Learned Law Officer vehemently contested the arguments advanced by the learned counsel for the Petitioner and contended that it is the prerogative of the Department to make adjustment, posting and transfer and the Petitioner cannot have the right to get made his adjustment/posting at his own will and volition. Learned Law Officer further argued that this Court lacks jurisdiction to interfere in the Policy Matters, as such, the petition is liable to be rejected.
6. As the case has been argued at length by the parties, therefore, the same is treated as Pakka case.
7. From the perusal of record it reveals that originally the petitioner was appointed as Baildar (BPS- 1) in Office of the Manager Fine Wool Sheep Farm 205/TDA District Bhakkar on contract basis and subsequently was regularized on the same post. Thereafter, on the request of the Petitioner, he was adjusted against the vacant post of Farm Guard (BPS-01) which was subsequently withdrawn by the Department vide order dated 02.03.2011. According to the parawise comments filed on behalf of the Respondents Nos,1 and 2, the adjustment of the Petitioner was made temporarily and subsequently withdrawn by virtue of Department Policy and Rules. It is pertinent to observe here that the permanent cadre of the Petitioner has not been changed rather only adjustment against a vacant post was made, therefore, if now the same A order of adjustment has been withdrawn by the Respondents, the Petitioner cannot claim his adjustment as permanent posting on the said seat.
8. Moreover, as per job description issued by the Director of Livestock Farms Punjab, Lahore of the Petitioner as Beldar is "to work in agriculture field sowing of crop cleaning of water chancels etc." whereas of the seat (Farm Guard) against which he was adjusted is "Watch and ward of agriculture crops, trees and other property of the farm" hence, they are totally different nature of jobs. It is understandable to a prudent mind person that an employee is appointed against a post keeping in view due qualification and the expertise of such employee. Moreover, clause-4 of the Office order dated 16.05.2010, appended with the comments of the Respondents, explicitly shows that the post of the Petitioner was job specific and non-transferable. The impugned order clearly depicts that the adjustment orders of the Petitioner were issued against the service Rules and Departmental Policy. Furthermore, the Petitioner has accepted terms and conditions of his service and the Rules and Regulations of the Department so he is duty bound to obey the orders issued in accordance with the Rules and Regulations by the Department. The Department/Competent Authority can rescind its order at any time in line with the Policy/Rules and Regulations of the same.
Moreover, the Petitioner has failed to show that the impugned order is tainted with mala fide.
Reliance in this regard can be placed on the case titled Dr. Akhtar Hassan Khan and others v.
Federation of Pakistan and others (2012 SCMR 455) wherein it was held as follows: "Once the competent authority in the government has taken a decision backed by law, it would not be in consonance with the well established norms of judicial review to interfere in policy making domain, of the executive authority. (ref Asia Foundation and Construction Ltd. v. Tarafalgar House Construction Ltd. (1997) 1 Supreme Court Cases 738).
In absence of some un-rebuttable material on record qua mala fides, the Court would not annul the order of executive authority which otherwise does not reflect any illegality or jurisdictional defect."
9. This principle has also been clarified in Para 8 of case titled Suhail Shafi v. Government of Punjab and others (2005 PLC (C.S.) 1 (Lahore), and relevant excerpt is reproduced herein below: "8. It is a settled proposition of law that the Government is entitled to make rules in the interest of expediency of service and to remove anomalies in Service Rules. It is the Service Rules Committee which has to determine the eligibility criteria of promotion and it is essentially an administrative matter falling within the exclusive domain and policy decision making of the Government and the interference with such matters by the Courts is not warranted and that no vested right of a Government employee is involved in the matter of promotion or the rules determining their eligibility or fitness, and the High Court has no jurisdiction by means of writ to strike it down."
10. It has been clearly held in the case of Rashid Ali v. Secretary Industries and others (PLD 2014 Lahore 173), that High Court should not interfere in the domain of policy matters of Government which would require consideration of various factual aspects and could not sit as a court of appeal over the policy decisions and substitute its own decision with the decision of the Government unless it proved that the decision by Government had been made in excess of jurisdiction or same was arbitrary and devoid of any justification. High Court might have interfered in the policy being violative of constitutional mandate if there was any embargo on the running of such tandoors.
Hence, act of Government with regard to suspension of flour at subsidized rate was not interfered by the High Court and Constitutional petition was dismissed. It was further held in the case of Landirenzo, Pakistan (Pvt.) Ltd. v. Federation of Pakistan and 6 others (2013 PTD Sindh 658) that; "In matter of policy decisions, the Government is the best judge and it is not for the High Court to sit on the policy matters, unless those appear to be violative of constitutional guarantees. Arbitrary, mala fide or on account of colourable exercise of power."
' Moreover, in the case of Junaid and another v. Federation of Pakistan and others (2012 CLC 1962 [Sindh], it was established that; "We are unable to interfere with the policy decision of the government as it is within the domain of jurisdiction of authority taking the policy decisions. In the matter of policy decision, the government is the best judge and it is not for the Court to sit on the policy matters unless they appear to be arbitrary or mala fide on account of colourable exercise of or abuse of power."
11. This court is of the view that in matters of judicial review the basic test was to see whether there, was any infirmity in the decision-making process. Since the power of judicial review was not an appeal from the, decision, the court could not substitute its decision for that of the decision maker.
Duty of the court was to confine itself to the question of legality. Concern of the court should be whether a decision-making authority exceeded its powers; committed an error of law; committed a breach of the rules of natural justice; reached a decision which no reasonable tribunal would have reached; or abused its powers. Court was not to determine whether a particular policy or particular decision taken in the fulfilment of such policy was fair. Court was only concerned with the manner in which such decision had been taken. Interference with the decision-making process was warranted where it was vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it was actuated by mala fides. (generally see Ramana Dayaram Shetty v. International Airport Authority of India AIR 1979 SC 1628; Tata Cellular v. Union of India AIR 1996 SC 11; Raunaq International Ltd. v. I.V.R. Construction Ltd. AIR 1999 SC 393 and Air India Ltd. v.
Cochin International Airport Ltd. AIR 2000 SC 801 ref)
12. Similarly, in the case of sajjad Mehmood Raja and another v. Federation of Pakistan and others (2013 PLC (C.S.) Islamabad 864), it was held that ordinarily, transfer and posting could not be claimed as a matter of right. Civil servant aggrieved of his transfer could agitate his question of transfer before the competent forum, however, the authority to transfer lay, with the competent authority and civil servant could not claim transfer or posting as a matter of right. Only the Government could determine as to which officer was suitable for which place. Government had to keep in view the conditions, requirements, importance of the post and suitability and competence of officer to be posted on a post. Court could not step into the shoes of the Government and determine suitability and competence of an officer for a particular post. Further, the Court did not have the power to take the role of policy maker. Government had every right to introduce its policy and the court could not substitute the policy decision with its own opinion. Policy, however, could be challenged at the touchstone of the Constitution and if it was found that the policy itself was violative of any provision of the Constitution or law, same could be struck down. Even where court struck down a policy as being violative of the Constitution or law, it would not give its own policy by substituting the one introduced by the Government. Hence, the Court dismissed the writ petitions being devoid of merits.
13. It is essential to note the principle highlighted in Asad Aziz v. Bahauddin Zakaria University and 2 others (2009 YLR 370 (Lahore]). It was held in this case that authorized authority could change the policy and since no vested right had accrued, therefore, it could not be said that the same had been taken away. High Court did not have any power to direct for formulation of policy or to change the same. Since, Petitioner failed to point out any violation of his vested right calling for interference in exercise of Constitutional jurisdiction of High Court, Petition was dismissed in circumstances.
14. In view of the above, this Court is of the opinion that this Court should exercise judicial restraint from forcing the Department to commit an act which was neither authorized by specific law nor contemplated by a specific executive policy. Interference of court in such functions of government would amount to encroach upon the policy decision of government and disturb the concept of independent and good governance. Further, it is essential to mention here that executive had to play its own role and the courts could not compel the Executive to adopt a particular course. High Court only had the power to interpret law and had no jurisdiction to take the role of policy maker in the garb of interpretation. Where policy decision of the Government was not ultra vires the law and was reasoned, rational and reasonable, the High Court in exercise of judicial review could not set aside and displace such decision. However, where a decision and/or recommendation of the Government/competent authority was not in accordance with law or suffered from mala fide or same was arbitrary, irrational and unreasonable, the High Court could direct the State/Government to act strictly in accordance with law:
15. Similarly, while exercising jurisdiction falling within the ambit of judicial review of administrative actions, it is equally important to ensure that no encroachment is made on the powers vested in executive and no interference is made until and unless any such decision/executive order is shown to be violative of any provision of the Constitution or is established to be in derogation or violation of the statutory law. Judicial quest in administrative matters was to find the right balance between administrative discretion to decide matters, thus they were not essentially justifiable warranting the need to remedy any unfairness. If, however, there was such an unfairness, it was to be set right by judicial review, which was concerned with reviewing not the merits of the decision in support of which the application for judicial review was made, but the decision-making process itself.
16. It is pertinent to observe here that the permanent cadre of the Petitioner has not been changed rather only adjustment against a vacant post was made, therefore, prima facie it does not create any vested right of the Petitioner for the new post. It is a settled principle of law that ad hoc appointment did not confer on an appointee any right or interest to continuous appointment, seniority or promotion and that service of such an appointee could be dispensed at any moment under the policy guidelines of the authority. Further, the Petitioner has accepted terms and conditions of his service and the Rules and Regulations of the Department so he is duty bound to obey the order issued in accordance with the Rules and Regulations by the Department. There is no cavil to the proposition that an employee appointed/ engaged on contract/part time/substitute basis has got no vested right to claim for being absorbed/appointed on regular/permanent basis.
Therefore, status of the petitioners could not be changed unless regularized by adopting the.
Procedure/method, as such, request so made has no legal footing and same is declined.
17. Further, not a single act of discrimination, mala fide, arbitrariness or favoritism has been pointed out by the Petitioner. Hence, it is within the powers, jurisdiction of the department to regulate affairs in accordance with law and policy.
18. On the touchstone of above discussion, this petition being devoid of any merit, is hereby dismissed.