SHAKIL-UR-REHMAN KHAN, J.----Through the instant petition, the order dated 03.6.2020 has been challenged, whereby , the petitioner had been trans ferred from Vocational Training Institute, Abdul Hakeem to Vocational Training Institute, Noor Shah.
2. Learned counsel for the petitioner states that Punjab Vocational Training Instit ute has been established under the Punjab Vocational Training Council Act, 1998 (hereinafter referred to as the "Act") and the employees are regulated under the Punjab Vocational Training Council Employees' Service Regula tions, 2014 (hereinafter referred to as the "Regulations ") which have been framed under Sections 10 and 14 of the above mentioned Act of 1998.
He adds that since the Regulations have been framed under the said Act, therefore, these enjoy statutory status and therefore, instant writ petition is competent. In order to substantiate his argument, he has relied upon the case reported as Muhammad Rafi and another v . Federation of Pakistan and others (2016 SCMR 2146 ).
3. Learned counsel for the petitioner further states that the petitioner was inducted into service vide offer letter dated 11.11.2015 as Principal Grade E-2 and has been rendering services without any adverse remarks. He further adds that the impugned order has been passed by respondent No.2/Managing Director , Punjab Vocational Training Council, Lahore without lawful authority and jurisdiction. He adds that the petition er is resident of Multan and in order to approach his present place of positing the petitioner has to travel 180-kilometers daily, however , new place of posting is about 210-kilometers away from his residence. This means that the petitioner will have to travel 420- kilometers daily. He further adds that the petitioner is a married person and .has two children, one of them is unwell and on the other hand he also looks after his ailing mother who is a heart patient and is under regular treatment at Multan. He adds that in an identical matter , being Writ Petition No.8240 of 2019, this Court vide order dated 23.5.2019 suspended the operation of the impugned order relating to the transfer of the Principal/petitioner therein.
He further states that the impugned order has been passed without the application of an independent mind and under the dictates of political influence. He further states that respondent No.2 is not the competent authority to pass the impugned order , rather the Chairman has the power to transfer the petitioner . He also relies upon the cases reported as Syed Mehmood Akhta r Naqvi and others v. Federation of Pakistan and others (2013 SCMR 1) and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others (PLD 2013 SC 195) to argue that the employees are to be dealt with strictly in accordance with law, policy and rules and that infringement of their rights have been declared to be amenable in writ jurisdiction. He further states that the petitioner is performing his duties and the charge has not been relieved but the respondents are pressurizing the petitioner to relieve the charge. In view of the above, he states that the impugned order dated 03.6.2020 be declared as illegal, against the law, facts and circumstances of the case and the same be set aside, to meet the ends of justice.
4. Learned Assistant Advocate General Punjab argued that the instant writ petition is not maintainable for the reason that the petitioner is a civil servant and he cannot approach this Court through a Constitutional petition, due to the fact that the transfer is a term and condition of service and he should have approached the competent forum by way of an appeal and subsequently , the Service Tribunal, if so required.
5. In response to the above noted objection, learned counsel for the petitioner states that since the matter revolves around violation of the statutory Regulations, therefore, instant petition is maintainable.
6. As far as the maintainability of the instant writ petition is concerned, it would be apt to reproduce Sections 10, 13 and 14 of the Act, which are as follows:-
10. Employees of the Council.- The Council may employ such officers, advisors, consultants and employees in its service as may be necessary for the efficient performance of its functions in such manner and on such terms and conditions as may be prescribed by the Council.
13. Power to make Rules.- The Government may make rules for carrying out the purposes of this Act.
14. Power to make Regulations.- Subject to this Act and the rules framed thereunder the Council may make regulations for carrying out the purposes of this Act.
7. In view of the above, under the provision of section 13 of the said Act, Rules were framed as The Punjab Vocational Training Council Rules, 1998 (hereinafter referred to as the "Rules"). Under Rule 3 of the said Rules, functions of the Council have been enumerated which include the appointment of Principals of the Institute. Rule 8 of the said Rules provide as follows:- "Employees of the Council:- (1) The Council may appoint such officers, staff and servants for its Secretariat and the Principals of the Institutes, as it may consider necessary for the ef ficient performance of its functions.
(2) The Board shall appoint such officers, staff and servants as it may cons ider necessary for the efficient performance of its functions and the working of the Institutes.
(3) The terms and conditions of the officers, staff and servants of the Council and the Boards shall be such as may be determined by the Council."
8. Subsequently , the Regulations were framed by The Punjab Vocational Training Council, under the provisions of Sections 10 and 14 of the Act read with Rule 8 of the Rules.
9. The Regulations defines the Competent Authority/Appointing Authority as follows in clause (j) of Regulation 2:-
(j) "Competent Authority/Appointing Authority: means all those who have been declared Appointing Authority as per clause 11(b) or any officer of the Council to whom specific powers have been delegated. In case of service matters, Competent Authority means Appointing Authority".
10. The said Regulations through clause (7) of sub-Regulation (b) of Regulation 1 1 provides as follows:- Selection Board and Appointing Authority "Appointing Authority for posts of Principal CAT-1 (Grade El), Principal CAT-II (Grade E2) is the Managing Director PVTC. The Selection Board for these posts shall be as under: i. Managing Director President ii. One or more President BOMs (to be nominated by the MD PVTC)Member (s) iii. General Manager (concerned)
Or in his absence Senior Manager (to be nominated by MD)Member iv. One or more Regional Manager (s) PVTCMember (s) v. Senior Manager HR Member/Secretary
11. Regulation 19 of the said Regulations provides as follows:- "Transfer and Posting: Every employee shall be liable to serve anywhere within the country or in accordance with the transfer policy approved by the Chairman".
12. A joint reading of the Act, the Rules and the. Regulations clearly show that the Council is authorized to appoint the officers, staff and servants for its secretariat and Principals of the Institutes on permanent basis as well as through contracts. The petitioner has appended the offer of appointment letter , in Grade E2 dated 11.11.2015, wherein it has clearly been stated that:- "you will be on probation for a period of 01 year, which may be extended at the sole discretion of the competent authority and your services are liable to be terminated on one month's notice on either side without assigning any reason during your probation period. Your appointment will be confirmed on satisfactory completion of your probation period and issuance of confirmation letter".
13. The above clearly depicts that the petitioner was initially appointed for a period of one year and after completion of service he was to be confirmed. The petitioner has chosen not to append the confirmation letter depicting his terms and conditions of service, along with this petition. It is also noted that the transfer policy is also not part of the record. The cases reported as Sadaf Mubeen v. General Manager Tevta and others (2018 PLC (C. S.) 480), Razia Kausar , Shop Assistant v. Secre tary to Government of the Punjab, Education Department, Lahore and others (1999 PLC (C. S.) 735) and Intisar Shamim Ahmed and another v. Secretary , Labour and Manpower , Government of Punjab, Lahore and 2 others (1997 PLC (C. S.) 860) prima facie show that such employees of the Council are civil servants and their service matters including the disciplinary matters are to be dealt with under The Punjab Employees Ef ficiency , Discipline and Accountability Act, 2006 and other relevant laws.
14. Turning now to the argument of the learned counsel for the petitioner regarding the statutory nature of Regulations, it is noted that the Honourable Supreme Court of Pakistan has laid down the test to determine the nature of the rules/regulations, to the effect that whether these are statutory or otherwise, is not solely whether their framing required approval of the Federa l Government or not, rather it is the nature and area of efficacy which determines their status. It has further been held that Rules dealing with instructions for internal control or management were treated as non-statutory while those, whose area of efficacy is broader and/or complimentary to the parent statute in the matters of crucia l importance, are statutory . The said test has been laid down in the cases reported as Muhammad Zaman and others v. Government of Pakistan through Secretary , Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571), Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010 ) and Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377 ).
15. Learned counsel for the petitioner has relied upon the case reported as Muhammad Rafi and another v.
Federation of Pakistan and others (2016 SCMR 2146 ) also reported as Muhammad Rafi and another v.
Federation of Pakistan and others (2017 PLC (C.S.) 1270 ). The matter before the Honourable Supreme Court of Pakistan was that Civil Aviation Authority had advertised the post of Assistant HR Officers and after completion of recruitment process, the appointment letters were issued. The said Authority suspended the appointments and then went on to scrap the entire recruitment exercise. The said officers approached the learned Sindh High Court through Constitutional petition which was dismissed and thereafter the said decision was challenged before the Honourable Supreme Court of Pakistan. Although it was held by the Honourable Supreme Court of Pakistan that Service Regulations of the Civil Aviation Authority are non-statutory but besides this, said Regulations did not confer power on the Authority to keep in abeyance or to cancel the appointments. On the factual matrix of the case, it was noted that there were no reasons to support the decision of the Authority for scarping the said appointment process. It was further noted by the Honourable Supreme Court of Pakistan that no action whatsoever had been taken against the persons who had initiated the said process and no disciplinary action for misconduct had been taken. For the said reasons, above noted case does not support the argument of learned counsel for the petitioner relating to the maintainability of the instant Constitutional petition.
16. Learned counsel for the petitioner has also relied upon the case reported as Pakistan Defence Officers'
Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707) to support his argument relating to the maintainability of the instant petition. The said case is also of no help to the petitioner for the reason that in that case all the respondents therein, had been proceeded against under the provisions of Removal from Service (Special Powers) Ordinance, 2000. The Honourable Supreme Court of Pakistan concluded that since there was a statutory intervention through the above noted law, therefore, any violation or non-compliance of the said statute was amenable to writ jurisdiction.
17. Moreover , it is noted that it is settled law that transfer and posting are terms and conditions of service and therefore, jurisdiction of this Court is barred under Article 212 of the Constitution. Reliance is placed on the judgments reported as Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54), Asif. Ali Memon v. The Province of Sindh through Chief Secretary and 2 others (2019 PLC (C. S.) 492), Mst. Allah Rakhi v. Commissioner Sahiwal Division/Chairman Complaint Redressal Cell, Sahiwal and 3 others (2019 PLC (C.S.) 1452 ) and Tariq Mehmood Malik v. Chief Execut ive Officer and others (2018 PLC (C.S.) 664 ).
18. Learned counsel for the petitioner has been unable to establish any violation of the Statute, the Rules or the Regulations, as mentioned above.
19. I have also gone through the Writ Petition No.8240 of 2019 titled as "Muhammad Azhar Khan v. Chairman, Punjab Vocational Training Council, Lahore and 05 others ". The said case is clearly distinguishable from the instant case for the reason that it had been clearly mentioned therein that Assistant Manager , Human Resource, Punjab Vocational Training Council, Lahore, had specifically informed the petitioner therein, that his transfer had been made on the asking of the Chief Minister . To my mind, learned Bench of this Court vide order dated 23.5.2019 accordingly suspended the operation of the impugned order dated 21.5.2019 to the extent of the said petitioner . No such allegation has been made in the instant petition. However , on the other hand, a vague allegation has been made that the transfer has been made due to political influence. No political figure has been named in the petition nor has been impleaded as a respondent in the instant writ petition. In view of the settled law, mala fide has to be particularly alleged and onus to prove the same is entirely upon the person alleging mala fide because there is a presumption of regularity attached with regard to all official acts and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fide. In reaching this conclusion, I am fortified by the law laid down in the cases reported as The Federation of Pakistan through The Secretary , Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan and others (PLD 1974 Supreme Court 151), Syed Hassan Khan v. Chairman, WAPDA, Lahore and 5 others (1995 SCMR 23), Afzal Motors Company (Pvt.) Limited v. Province of Sindh and others (2009 SCMR 659), also reported as Afzal Motors Company (Pvt.) Ltd. v. Province of Sindh and others (2009 CLD 798) and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455) also reported as Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 CLD 520). In this view of the matter , stance of the petitioner regarding political influence is also of no consequence.
20. I have also gone through the case law relied upon by learned counsel for the petitioner , that is, case reported as Syed Mehmood Akhtar Naqvi and others v. Federation of Pakistan and other s (2013 SCMR 1) and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others (PLD 2013 SC 195). The facts of the above noted case are clearly distinguishable and are of no help to the petitioner .
21. In view of the above, the instant writ petition being devoid of merit is dismissed. However , it is noted that in view of the Regulation 19, as reproduced above, the employees are liable to be transferred in accordance with the transfer policy approved by the Chairman, therefore, the petitioner may approach the Competent Authority for the redressal of his grievance, if so advised.