MIRZA VIQAS RAUF , J. This single judgment shall govern the instant petition as well as petitions No.5595 of 2020, 6538 of 2020, 6454 of 2020, 6804 of 2020, 6144 of 2020, 10542 of 2018, 6435 of 2020, 6601 of 2020 and 6706 of 2020 on account of involvement of similar question of facts and law in all these petitions.
2. The petitioners in the instant petition and in the writ petitions No.5595 of 2020, 6538 of 2020, 6454 of 2020, 6804 of 2020, 6144 of 2020 and 10542 of 2018 are the employees of Health Departmen t whereas the petitioners in writ petitions No.6435 of 2020, 6601 of 2020 and 6706 of 2020 are the employees of Education Department. All of them, being aggrieved of transfer/posting orders, disciplinary proceedings, deputation are questioning the same on the ground that said orders are tainted with malafide, without jurisdiction and the petitioners have been subjected to successive and frequent transfers without any lawful authority .
3. In the light of questions raised in these petitions, especially with regard to the status of the petitioners in the wake of creation and establishment of District Education Authority and Distric t Health Authority by virtue of provisions contained in the Punjab Local Government (XVIII of 2013) (hereinafter referred as "Act, 2013"), a notice was issued to the respondents, who have their due representation through the learned Assistant Advocate General, Punjab.
4. Mr. Nadeem Iqbal Chaudhary , Advocate representing the petitioner in the instant petition as well as W.P.No.5595 of 2020, submitted that petitioners were previously serving in the Health Department. He adeed that by virtue of Section 94 of the "Act, 2013", District Health Authority was constituted and as such petitioners are ceased to be the civil servants. Learned counsel emphatically contended that petitioners have been subjected to transgression of authority by the respondents on the basis of political whims. It is added that bar under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be pleaded in view of conversion of Health Department into District Health Authority .
5. Raja Sohail Iftikhar , Advocate represen ting the petitioner in W.P.No.6538 of 2020, Mr. Muhamamd Hafeez Khan Mastoi, Advocate representing the petitioner in W.P.No.6454 of 2020, Mr. Muha mmad Ismail Makki, Advocate representing the petitioner in W.P.No.6804 of 2020 and Mr. Saleem Gill, Advocate representing the petitioner in W.P.No.6144 of 2020 adopted the arguments of learned counsel for the petitioners referred hereinabove. Mrs. Samina Qureshi, Advocate representing the petitioner in W.P.No.10542 of 2018, while adding to the submissions of her learned friend representing the other petitioners, submitted that the impugned orders are not only without lawful authority but illegal and unlawful as the petitioners have been internally deputed in violation of the instructions issued by the District Health Authority .
6. Mrs. Samina Qureshi, Advocate while representing the petitioners in writ petitions No.6435 of 2020 and 6706 of 2020 submitted that petitioners were though previously employees of the Education Department but with the establishment of the District Education Authority in terms of Section 92 of the "Act, 2013", they are ceased to be the civil servants. It is contended that petitioners were subjected to frequent transfers and postings within a short span of time. Learned counsel maintained that the impugned orders were issued by the authority , which is not vested with any such power . It is argued that even otherwise, impugned orders offend the transfer policy , which is in vogue to this ef fect.
7. Mr. Muhammad Tahir Saeed Ramay , Advocate representing the petitioner in W.P.No.6601 of 2020, while adding to the submissions of his learned friend representing the other petitioners, submitted that the impugned order is not only without lawful authority but illegal and unlawful as the petitioner has been internally deputed in violation of the instructions issued by the District Education Authority .
8. Conversely , learned Law Officer seriously resisted the instant petitions with the contention that despite establishment of District Education Authority , there is no change in the status of the employees of the Education Department. It is vehemently contended that petitioners would remain as civil servants and as such instant petitions are hit by bar under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 as the grievance of the petitioners relates to the terms and conditions of service.
9. I have heard learned counsel for the petitioners as well as learned Law Officer at considerable length and also perused the record.
10. The first and foremost pivotal point involved in these petitions is the status of the petitioners in the light of creation and establishment of the District Education Authority and District Health Authority by virtue of provisions contained in the "Act, 2013". There is no cavil that if once it is determined that petitioners are the civil servants then the other questions raised in the instant petitions clearly relate to the terms and conditions of service of an employee and as such those will require no deliberation at all.
11. It is not in dispute that before the establishment of District Education Authority and District Health Authority , all the petitioners were regular employees of either the Education Department or Health Department and they were treated as civil servants for all intent and purposes. It was for the first time that with the promulgation of the "Act, 2013", District Education and Health Authorities were constituted. Chapter-XI of the "Act, 2013" deals with the composition and functions of the District Education and Health Authorities. In terms of Section 2 (a) of the Act ibid "Authority is defined as under: - 2 (a) "Authority" means a District Education Authority or a District Health Authority; Section 92 ordains that an Authority shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property and enter into any contract and may sue and be sued in its name. Sub- Section (2) of Section 92 bestows a power upon the government to appoint the Chief Executive Officer of an Authority through open competition on such terms and conditions as may be prescribed and until so appointed the Government may appoint an officer not below the rank of BS-18 to look after the functions of the Chief Executive Officer, who shall be the Principal Accounting Officer of the Authority and shall perform such functions as are mentioned in the Act or as may be prescribed or as may be delegated by the Authority or as the Government may assign.
12. Functions of the District Education Authority are enumerated in Section 93 in the following manner: -
(a) establish, manage and supervise the primary , elementary , secondary and higher secondary schools, adult literacy and non-formal basic education, special education institutions of the Government in the District;
(b) implement policies and directions of the Government including achie vement of key performance indicators set by the Government for education;
(c) ensure free and compulsory educa tion for children of the age from five to sixteen years as required under Article 25-A of the Constitution;
(d) ensure teaching standards, infrastructure, standards, student safety and hygiene standards and minimum education standards for quality education as may be prescribed;
(e) undertake students' assessment and examinations, ranking of schools on terminal examination results and targets, promotion of co-curricular activities, sports, scouting, girl guide, red crescent, award of scholarships and conduct of science fairs in Government and private schools;
(f) approve the budget of the Authority and allocate funds to educational institutions;
(g) plan, execute and monitor all development schemes of educational institutions working under the Authority , provided that the Authority may outsource its development work s to other agencies or school councils;
(h) constitute school management councils which may monitor academic activities;
(i) plan and finance maintenance of school, support enrolment and retention, arrange donation and finances, plan development and may perform any other role as may be prescribed; and
(j) perform any other function assigned by the government, a Commission or a body established by law in the prescribed manner .
Whereas Section 94 illuminates the functions of the District Health Authority , which reads as under:-
(a) establish, manage and supervise primary and secondary health care facilities and institutions;
(b) approve the budget of the Authority and allocate funds to health institutions;
(c) provide stewardship, ownership and oversight of health service delivery at primary and secondary levels within the policy framework given by the Government;
(d) coordinate planning and allocate finances for provision of service delivery at District level;
(e) develop referral and technical supp ort linkages between primary and seco ndary levels of health care on the one hand and tertiary level health facilities and medical education institutions on the other;
(f) develop linkages between private and public health sectors for enhancing access and coverage of health care facilities to the general public and improving quality of these services;
(g) coordinate health related emergency response during any natural calamity or emergency;
(h) ensure human resource management and capacity development of health service delivery personnel under the policy framework given by the Government;
(i) ensure performance based contracts with service delivery managers as per prescribed indicators;
(j) monitor , exercise oversight and performance evaluation of service delivery managers as per agreed performance indicators either directory or through a third party;
(k) liaison with the Government for technical and logistic support in case of any emergency or disaster like situation;
(l) ensure timely and adequate reporting of progress on health indicators and issues relating to disease surveillance, epidemic control, disaster management to the government;
(m) implement policies and directions of the Government including achievement of key performance indicators set by the Government for health care programs;
(n) ensure implementation of minimum service delivery standards, infrastructure standards, patient safety and hygiene standards and minimum public health standards as prescribe d by the Punjab Health Care Commission; and
(o) perform any other function as may be assigned by the Government.
From the analysis of the above referred provisions of law, it becomes abundantly clear that District Education Authority and District Health Authority were constituted for administrative purposes to make the imparting of education as well as health more ef fective, transparent and beneficial.
13. It is undeniable fact that no change in the status of the employees of the District Education Authority and District Health Authority was introduced expressly or impliedly in the "Act, 2013" or anywhere else. It is noteworthy to mention here that the "Act, 2013" was repealed through Punjab Local Government Act, 2019 (Act XIII of 2019).
Though in terms of Section 312 of the later Act, a saving clause was inserted with regard to the previous operation of the "Act, 2013" or anything duly done or suffered thereunder but District Education Authority as well as District Health Authority was excluded and omitted therefrom.
14. In the backdrop of above discussion, if we proceed further , Section 2 (b) of the Punjab Civil Servants Act, 1974 (VIII of 1974) provides the definition of a "Civil Servant", which reads as under: - 2 (b) "civil servant" means a person who is a member of a civil service of the Province or who holds a civil post in connection with the af fairs of the Province, but does not include--
(i) a person who is on deputation to the province from the Federation or any other Province or Authority;
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(iii) a person who is a 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen' s Compensation Act, 1923 (VIII of 1923); It is thus apparent from the bare reading of the definition of a "Civil Servant" referred hereinabove that a person, who is a member of civil service of the Province or who holds a civil post in connection with the affairs of the Province is a "Civil Servant".
15. Somewhat similar question had arisen in the case of "PAKIST AN TELECOMMUNICA TION CORPORA TION and another v. RIAZ AHMAD and 6 others" (PLD 1996 Supreme Court 222) wherein the Hon'ble Apex Court held as under:- ".....In so far the status of respondents 1 to 5 as civil servant is concerned, the learned counsel for the appellants has cited an unreported decision of this Court passed in Civil Petition No.334/93 dated 10-11- 1993. The contention whether the empl oyees of Pakistan Telecommunication Corporation are civil servants or not was disposed of as follows:-- "3. Aggrieved against the order of the departmental authority showing junior officers as seniors in the seniority list he filed Appeal No.46(K)9 0 before the Tribunal for restoration of his inter se seniority to the higher post of Director . The petitioner raised preliminary objection to the effect, that the respondent No.1 being an employee of the Pakistan telecommunication Corporation, established under the Pakistan Telecommunication Corporation Ordinance (No.XVI of 1990), is not a civil servant so as to approach the Tribunal for the relief prayed for. The learned Tribunal repelled the objectio n and relying on the law laid down by this Court in Abdul Rahim v. Pakistan Broadcasting Corporation and others (1992 SCMR 2113), held the respondent a civil servant amenable to jurisdiction of the Tribunal nevertheless, dismissed his appeal on merits. Hence this petition. Learned counsel for petitioner mainly tried to distinguish the present case with Abdul Rahim's case relied by the Service T ribunal in the impugned judgment.
4. The provisions of section 9 of the Pakistan Telecommunication Ordinance (XVI of 1990) and section 12 of the Pakistan Broadcasting Corporation Act, 1973, are almost identical. The observations of this Court in the aforesaid case on the en bloc transfer of the employees to the Corporation did not change their status as civil servants fully cover the jurisdiction of the Tribunal to entertain their appeals and adjudicate the same on merits."
In view of the above stated legal position, we agree with the contention of the learned counsel for the appellants that respondents Nos.1 to 5 are civil servants within the meanings of Civil Servants Act, 1973."
16. In this context, reference can also be made to "ABDUL RAHIM v. PAKIST AN BROADCASTING CORPORA TION through Director-General and 8 others" (1992 SCMR 1213 ). The relevant extract from the same is reproduced below:-
6. We have examined the legal effect of our decision in the case of Nasir Ahmed (Civil Appeal No.106/1984) first. It had to be noted while interpreting that decision that it dealt with an Information Service Officer who had been given statutory option to go over to the Corporation and in that case he lost the character as an Information Service Officer of the Federal Government. The option in that case had been exercised. The status had been altered. However , in respect of others, the following observations were made and are extremely relevant:-- "The word `transfer' in subsection (1) of section 12 does not have the consequence of rendering a civil servant an employee of the Corporation unless the provisions of subsections (2) and (3) of section 12 of the Act are complied with namely the civil servant opts for service in the Corporation in which case he ceases to be member of the Information Service of Pakistan. It is only in this case that there is a severance of the service as a civil servant and in no other case."
7. Section 12 of the Corporation Act provides as hereunder:-- "12. Transfer of Radio Pakistan Servants to the Corpooration.-- (1) Notwithstanding anything to the contrary in any contract or agreement or in the conditions of service the Federal Government, may, subject to the provisions of subsection (2) and (3) transfer persons in the service of Pakistan and serving in connection with the affairs of the department of the Government of Pakistan headed by the Director-General, Radio Pakistan, hereinafter referred to as Radio Pakistan, immediately before the commencement of this Act, including persons on deputation to other organizations in Pakistan or abro ad to the Corporation on the same terms and conditions to which they were entitled immediately before such commencement.
(2) Notwithstanding anything in subsection (1) only such members of the Information Service of Pakistan serving Radio Pakistan immediately before the commencement of this Act shall be transferred to the Corporation as opted for service in the Corporation.
(3) The persons transferred to the Corporation under sub-section (2) shall, on such transfer , cease to be members of the Information Service of Pakistan.
(4) The terms and conditions of service of the members of the Information Service of Pakistan transferred to the Corporation under subsection (2) shall not be altered by the Corporation to their disadvantage.
(5) No person in the service of Pakistan who is transferred to the Corporatio n under subsection (1) shall, notwithstanding anything contained in any law for the time being in force, be entitled to any compensation because of such transfer ."
8. Two features of this section had to be noted. The first is that the word used for such employees as belonged to the category of the appellant is "transfer" alone, and the second is that such transfer is "on the same terms and conditions to which they were entitled immediately before such commencement". In Civil Servants Act, 1973, which soon followed a similar statutory provision was made by section 10, which reads as hereunder: "10. Posting and transfer:- Every civil servant shall be liable to serve anywhere within or outside Pakistan, in any post under the Federal Government, or any Provincial Government or local authority , or a corporation or body set up or established by any such Government: Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service, as to his pay shall not be less favourable than those to which he would have been entitlled if he had not been so required to serve."
Here, as an incidence of posting and transfer every civil servant has been made liable to serve amongst others the "Corporation or a body set up or established by any such Government". This does not imply that such transfer amounts to change of status of the civil servant. He remains a civil servant nevertheless.
9. The protection of the terms and conditions is actually substantial reproduction of second proviso enacted in section 10 of the Civil Servants Act.
10. In the case of Fayyaz Ali Khan (1971 SCMR 454) exactly the same question had come up before this Court for consideration and the following decision was made:-- "There have been several organizational changes brought about by various legislations but none of them has provided that a person who was employed by the Government in the Provincial Transport Service was to be considered as an employee of Road Transport Board or Road Transport Corporation. In these circumstances, it is quite clear that the status of the appellant continued to be as that of an employee of a Government service and he is entitled to the constitutional protection guaranteed in the Constitution of 1962."
17. Guidance in this respect can also be sought from "FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDA TION, ISLAMABAD through Director-General and another v. Syed GUL SHAH and others" (2013 SCMR 896 ) wherein the Hon'ble Apex Court while dealing with the issue akin to the issue at hand held as under:- "We have particularly noticed that in paragraph No.1.1 of the Terms and Conditions of the Scheme no mention whatsoever is made to "civil service" or "civil servant" and, thus, the entire discussion made by the learned Division Bench of the Islamabad High Court, Islamabad in the impugned judgment regarding the private respondents being civil servants or not has been found by us to be completely besides the point apart from being irrelevant. It may be true that a transfer of a civil servant to autonomous/semi- autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government does not affect his terms and conditions of service as a civil servant, as held by this Court in the cases of Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others (PLD 1996 SC 222), Divisional Engineer Phones, Phones Division Sukkur and another v. Muhammad Shahid and others (1999 PLC(CS) 1208), Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller , PBC, Islamabad (PLD 2002 SC 1079 ) and Abdul Rahim v. Pakistan Broadcasting Corporation through Director-General and 8 others (1992 SCMR 1213 ), but at the same time it ought not to have been lost sight of by the learned Division Bench of the Islamabad High Court, Islamabad, that eligibility criteria laid down in the Terms and Conditions of the relevant Scheme was not with reference to being a civil servant but was mainly with reference to being employees of different categories and it did not matter whether the applicant was a civil servant or not if his application attracted any of the eligibility criteria contained in paragraphs No. 1.1(a) or 1.1(b) of the Terms and Conditions of the Scheme. The eligibility criteria relevant to the employees was with reference to the employer and not with reference to the applicant being a civil servant or not. Looked at from this angle it is but obvious that 75% quota of plots referred to in paragraph No. 1.1(a) of the Terms and Conditions of the Scheme was reserved for employees of the Federal Ministries/Divisions/Attached Departments and their subordinate offices, members of regularly constituted groups/services of the Federal Government and Members of the Superior Judiciary , i.e. Judges of the Supreme Court, High Courts and Federal Shariat Court whereas the employees of the autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government fell within a separate category contained in paragraph No.1.1(b) of the Terms and Conditions of the Scheme and for such employees a quota of 8% of the plots had been fixed. It is admitted at all hands that the private respondents in all these appeals are/were employees of autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government and, thus, we have enter tained no manner of doubt that their applications for allotment of residential plots in the Scheme attrac ted only paragraph No.1.1(b) of the Terms and Conditions of the Scheme fixing a quota of 8% of the plots. As we have already observed above that the eligibility criteria contained in the Terms and Conditio ns of the Scheme was focused on the issue as to who was the employer and not on the issue as to whether the applicant was a civil servant or not, therefore, we are constrained to observe that the learn ed Division Bench of the Islamabad High Court, Islamabad had completely missed the point in issue and the impugned judgment rend ered by it was based upon considerations which were hardly relevant."
18. After having an overview of the principles laid down hereinabove, no other inference can be drawn except to hold that despite establishment of the District Education Authority and District Health Authority under the repealed "Act, 2013" no change occurred with regard to the status of the petitioners, being civil servants. After holding so, no cavil left that all these petitions arise out of matter relating to the terms and conditions of service and as such bar under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 shall attract with its full force and rigors.
19. Needless to observe that bar under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 is absolute and inflexible. In the case of "CIVIL REVIEW PETITION NO.193 OF 2013 ETC.C.R.P . NO.193 OF 2013 IN CONSTITUTIONAL PETITION NO.71 OF 2011 ALI AZHAR KHAN BALOCH and others versus PROVINCE OF SINDH and others" ( 2015 SCMR 456 ) the Hon'ble Supreme Court of Pakistan held as under:- "146. Section 3(2) of the Service Tribunal Act provides that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants, including the disciplinary matters. In other words, the jurisdiction of all other Courts is barred by the provisions of the Sindh Service T ribunals Act, 1973, read with Article 212 of the Constitution.
147. Section 4 of the Service Tribunals Act provides Civil Servant with the right of filing an Appeal before the T ribunal, subject to the qualifications provided therein.
148. In this background, all the Civil Courts, including a Judge (in Chambers) of High Court of Sindh, exercising jurisdiction on the original side as a civil court under C.P.C. cannot entertain a civil suit of a civil Servant relating to the terms and conditions of his service. The exercise of jurisdiction by the High Courts is conferred under Article 175(2) which reads as under:-- "175(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law ."
149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of civil courts and High Courts on the subject, which squarely falls within the exclusive domain of T ribunals.
150. The High Court of Sindh has completely overlooked the intent and spirit of the Constitutional provisions relating to the terms and conditions of service, while entertaining Civil Suits and constitution petitions filed by the civil servants, which are explicitly barred by Article 212. The expression 'Terms and Conditions' includes transfer , posting, absorption, seniority and eligibility to promotion but excludes fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade as provided under section 4(b) of the Sindh Service Tribunals Act, 1973. Surprisingly , it has been ignored that it is, by now, a settled principle of law that the civil and writ jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the learned Judges of High Court of Sindh have erroneously exercised both civil and writ jurisdictions with regard to the terms and conditions of civil servants.
151. We, for the aforesaid reasons, conclude that the exercise of jurisdiction by way of suit and Constitution petition filed by a civil Servant with regard to his terms and conditions of service is violative of Articles 175, 212 and 240 and the law ."
The same view was reiterated by the Honourable Apex Court in the case of "NATIONAL ASSEMBL Y SECRET ARIA T through Secretary versus MANZOOR AHMED and others" ( 2015 SCMR 253 ).
20. For the reasons recorded hereinabove, instant petition as well as connected writ petitions No.5595 of 2020, 6538 of 2020, 6454 of 2020, 6804 of 2020, 6144 of 2020, 10542 of 2018, 6435 of 2020, 6601 of 2020 and 6706 of 2020 are dismissed being hit by Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 with no order as to costs.