Through this writ petition, the petitioner , who at present is serving as Principal Medical Officer/Medical Superintendent (BPS-20), Nishtar Medical Hospital, Multan, has challenged order dated 14.11.2020 ("the Impugned Order") passed by the Secretary , Specialized Healthcare and Medical Education Department, Lahore ("SHC & ME Department ") whereby the petitioner has been placed under suspension and directed to report to SHC & ME Department.
2. Report and parawise comments have been filed wherein it has been stated that the present petition is hit by bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution "). On merits, the parawise comments contemplate that there were numerous complaints received from various quarters against the petitioner regarding his unprofessional attitude towards the patients, faculty and other staff affecting provision of health services. He was asked time and again to mend his behaviour but to no avail. Therefore, keeping in view his unprofessional attitude, the petitioner has been placed under suspension.
3. Learned counsel for the petitioner submits that suspension of the petitioner under the Punjab Employees Efficiency , Discipline and Accountability Act, 2006 ("the PEEDA Act") without initiating any proceedings unde r the Act ibid is improper and hence, the present petition is maintainable. Adds that since the petitioner is working as Medical Superintendent, Nishtar Hospital, Multan, he is no more a civil servant and his services are being governed by the provisions, of Nishtar Medical University Act, 2017 ("the Act, 2017"). He lastly submits that the competent authority of the petitioner is the Chief Minister, however , the suspension order has been passed by the Secretary , SHC&ME Department, as such, it is without jurisdiction. Places reliance on S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others (PLD 1981 Supreme Court 612), Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another (1999 SCMR 819), Government of the Punjab through Collector , Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others (2001 SCMR 209), Province of Sindh through Chief Secretary Sindh Karachi and 4 others v.
Gul Muhammad Hajano (2003 SCMR 325), Syed Ibrar Shah v. Commissioner , Kohat Division and others (PLD 2004 Supreme Court 907), Meraj Din Bhatti v. Chairman, Punjab Board, of Technical Education, Lahore and 4 others (2005 PLC(C.S.)551), Aftab Gulzar and another v. Chairman, Punjab Local Government Board, Lahore and 2 others (2005 PLC(C.S.)714), Muhammad Amin Kalus and others v. Punjab Local Government Board and others (2006 PLC(C.S.) 394), Chaudhry Azhar Hussain v. Secretary , Local Government and Rural Development, Department, Government of the Punjab, Lahore and 2 others (2006 PLC(C.S.) 693), Roshan Khan, Set Government High School Kuz Pao, District Shangla v. Director Schools and Literacy , N.W.F.P., Peshawar and 4 others (2007 SCMR 599), Mustafa Lakhani v. Pakistan Defence Officers Housing Authority , Karachi (2008 SCMR 611), Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter , Lahore and others (2009 SCMR 339), Syed Mehboob Ali and 21 others v. Province of Sindh through Chief Secretary to Government of Sindh and 3 others (2011 PLC(C.S.) 37), Senior Member BOR and others v. Sardar Bakhsh Bhutta and another (2012 SCMR 864), SM Waseem Ashraf v. Federation of Pakistan through Secretary , M/O Housing and Works, Islamabad and others (2013 SCMR 338), S Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others (2014 SCMR 799), Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630), Muhammad Amin and another v. Gove rnment of Punjab and others (2015 SCMR 706), The Commandant, Khyber Pakhtunkhwa Constabulary , Headquarters Peshawar and another v. Muhammad Nasir and others (2015 SCMR 1040 ), Munawar Hussain Bukhari v. Appellate Authority/T ribunal, Alipur District Muzaf farsarh and others (2016 SCMR 1087 ), Muhammad Hanif Abbasi v. Jahang ir Khan Tareen and others (PLD 2018 Supreme Court 114), Pakistan Medical and Dental Council through Presiden t and 3 others v. Muhammad Fahad Malik and 10 others (2018 SCMR 1956 ), Amjad Ali Khan v. Ministry of Energy (Power Division), Islamabad through Secretary and 3 others (2019 PLC(C.S.) 300), Bashir Ahm ad and others v. The Director General, Lahore Development Authority , Lahore and others (2020 SCMR 471), PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others (2021 SCMR 637) and Dr. Karim Shah v. Chairman, Search and Nomination Council/Health Minister , Government Khyber Pakhtu nkhwa, Peshawar and others (2021 PLC(C.S.)235).
4. Conversely , learned Law Officer submits that the present petition has been filed by concealing and suppressing material facts inasmuch as Impugned Order dated 14.11.2020 was complied with by the petitioner on the same day by approaching the Secretary , SHC&ME Department, Lahore where he submitt ed his joining report and made request for release of his salary accordingly . Places reliance on Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54), Fazal Ahmad Ranjha and 28 others v. Government of the Punjab through Secretary Education (Schools), Lahore and 39 others (2016 PLC (C.S.) 1209) and. Chief Secretary Government of the Punjab, Lahore etc v. Ms. Shamim Usman (Civil Petition No. 1097-L of 2020) to plead that writ petition is hit by Article 212 of the Constitution. In rebuttal, learned counsel for the petitioner submits that there is no suppression of facts as the petitioner has disclosed this fact in the pleadings in terms of para 4 of the writ petition.
5. Arguments heard. Record perused.
6. The pivotal question involved in the matter is the maintainability of the present petition. The petitioner is admittedly a civil servant and is serving as Medical Superintendent in Nishtar Hospital, Multan on deputation. The ancillary questions raised by petitioner's side, which require adjudication are that whether without initiating any proceedings under the PEEDA Act, the suspension order simplicitor is imprope r and therefore, this petition is maintainable and whether after his transfe r and posting in the Nishtar Hospital on deputation, the petitioner was no more a civil servant and hence, the bar contained in Article 212 of the Constitution is not applicable to him.
7. Admittedly , the petitioner is a civil servant. Article 212 of the Constitution places absolute and inflexible bar on jurisdiction of this Court in matters relating to terms and conditions of the service of civil servants, which include appointment, posting, transfer , etc., and therefore, this Court has no jurisdiction to entertain a constitutional petition. In this regard, I am fortified by the judgment of the august Supreme Court of Pakistan in Peer Muhammad v.
Government of Balochistan through Chief Secretary and others (2007 SCMR 54) wherein it was held by the Hon'ble Supreme Court that the ouster clause embodied in Article 212 is a constitutional command, which ousts the jurisdiction of the High Court as well as the civil Court. While relying on Peer Muhammad's case supra, this Court in Dr. Ghazanf farullah ete. v. Secretary Health etc. (PLJ 2011 Lahore 392) held that Article 212 is a non-obstante clause and hence, prevails over Article 199 of the Constitution. In addition to the pronouncement in Peer Muhammad's case supra, the Hon'ble Supreme Court of Pakistan in Ali Azhar Khan Baloch and others v.
Province of Sindh and others (2015 SCMR 456) has exhaustively defined the jurisdiction al delineations of the High Court pertaining to the matters of terms and conditions of service of civil servants. In the said judgment, the apex Court deprecated the exercise of constitutional jurisdiction in the matters pertaining to terms and conditions of service of civil servants and held that the said exercise is not only in defiance of constitutional contours of Article 212 of the Constitution but also confronts and defies Article 189 thereof. Reliance is also placed on the law laid down by the august Supreme Court in National Assembly Secretariat through Secretary v. Manzoor Ahmed and others (2015 SCMR 253). In the said cases, the Honble Supreme Court of Pakistan has clearly held that any matter , which touches upon the terms and conditions of the civil servant, is to, be looked into by the departmental hierarchy followed by an appeal before the learned Service Tribunal and the jurisdiction of this Court is ousted. In fact, any intervention by this Court to probe into the matter involving the terms and conditions of service of a Civil servant has been deprecated and held to be in the defiance of the constitutional mandate as well as dicta laid down by the Hon'ble Supreme Court. Moreover , in Shamim Usman supra, the Hon'ble Supreme Court has reiterated the earlier position that any transgression of the constitutional limitation is void and illegal and assumption of jurisdiction by this Court in respect of matters of terms and conditions of a civil servant is unconstitutional and impermissible.
8. So far as the entire case law of the Honble Supreme Court of Pakistan, this Court and other High Courts relied upon by learned' counsel for the petitioner is concerned, the same is not applicable in the instant case as either the said cases are not related to terms and conditions of civil servants and these pertain to the employees of local government, autonomous bodies or such organizations, the employees of which are not civil servants. The only case relied upon by the petitioner , which may have some nexus with the instant matter, is S. Masood Abbas Rizvi supra, qua the point raised by the petitioner's side that since the petitioner was serving as a deputationist in Nishtar Hospital, he lost his status of being civil servant. The argument on behalf of the petitioner that he was no more civil servant once working in a borrowing agency is conjured out of thin fir and based on fallacy . The bar contained in Article 212 of the Constitution is fully attracted in the present case and the writ petition is not maintainable and reliance on S. Masood Abbas supra too is also misconceived. In fact, in S. Masood Abbas supra, the august Supreme Court held that there is no vested right of the deputationist to remain on the post of deputation for the stipulated period and parent department is not obligated to assign any reason for the repatriation. Moreover , the august Supreme Court of Pakistan, in Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad through Chairman and other (2010 SCMR 378) has clearly held that no deputationist, by any stretch of imagination and in absence of any specific provision of law, can ask to serve the total period of deputation in the borrowing agency . It has been further held that such civil servant can be repatr iated by the Competent Authority in the interest of exigency of service as and when so desired and such order of the Competent Authority cannot be quest ioned. It is also settled law that every civil servant is bound to serve anywhere within or outside the province in any post under the Government of the Punjab, Federal Government, any other provincial government or local authority or corporation or any other body set up or established by any such Government, which is evident from Sectio n 9 of the Punjab Civil Servants Act, 1974 (hereinafter "the Act"). Similarly , Section 2(b). (i) of the Act defines a civil servant in the following manner: "2. Definitions. (1) In this Act, unless there is anything repugnant in the subject of context, --
(a) ...........
(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 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"
(Emphasis supplied).
There is nothing in the Civil Service Laws or in the Act, 2017 to indicate that any civil servant working under the administrative control of the Government of the Punjab, once transferred to an organization like Nishtar Hospital will cease to be a civil servant and will be governed by the Act, 2017.
9. The petitioner is not only a member of the civil service of the Province but also held the post of Medical Superintendent, Nishter Hospital Multan, which involves functions in connection with the affairs of the province.
Therefore, as to the extent of the defin ition of civil servant, the petitioner is a civil servant for all intents and purposes. The exclusion clause attached to definition provided in Section 2(1)(b) of the Act reads that civil servant shall not include a person who is working on deputation to the Province of Punjab from the Federation or any other Province or authority . The conditions laid down in the said exclusion clause are that a person working on deputation in the Province shall not be a civil servant if sent to work on the said post from such Province to the Federation, any other Province or any authority which is not the situation in the instant case.
10. This takes me to the nub of the matter, which is to examine the scope of Impugned Order passed by the Secretary , SHC & ME Department, Lahore whereby the petitioner has been placed under suspension on administrative grounds and he has been directed to report to the said department. It is settled law that order of suspension of a civil servant is not a penalty and hence, would not violate any legal right vested in the suspended official/of ficer and hence, the jurisdiction of this Court cannot be invoked. Reference is made to the Divisional Superintendent, Pakistan Railways, Lahore v. Muhammad Halim, through Legal Representatives and others (PLD 2000 SC 55), Muhammad Amin Mughal v. Secretary Local Government and Rural Development Department/Chairman Punjab Local Government Board, Government of the Punajb Civil Secretariat Lahore and 4 others (2002 PLC (C.S.) 816), Sh. Iqbal Hussain v. Anwar Hussain (2005 YLR 181 Lahore) and Khalid Pervez Bhatti v . Mst. Madiha Rafiq ( 2017 MLD 323 Islamabad).
11. Even otherwise, perusal of record placed on file through CM No. 5999/2021 filed by the respondents indicates that the petitioner has in fact complied with Impugned Order on the same day, i.e. 14.11.2020, by submitting joining report to the department, which fact could not be denied by the petitioner's side during the course of arguments.
When contents of the present writ petition are perused, it appears that a vague reference has been made about the said fact in the words that the petitioner approached Respondent No. 2 for inquiry in about the Impugned Order .
Furthermore, on 19.1 1.2020, a letter has been written by the petitioner which reads as under: "To The Secretary to Govt. of Punjab Specialized Healthcare and Medical Education Department Lahore.
Subject: Request to Adjust for Salary Purpose Sir, It is submitted that I was working as M.S. Nishter Hospital, Multan. I have been suspended vide your order No. SO(GC-I)4-1/2018 dated 14.1 1.220. I have reported for duty in your of fice on 19.1 1.20.
It is requested that I may please be adjusted for salary purpose against any vacant post of BS-20.
Signed/ DR. SHAHID MAHMOOD BUKHARI P.M.O. Ex-M.S. Nishter Hospital (Under Suspension)
Mobile: 03007186420"
(Emphasis provided)
The above letter , written by the petitioner himself, unambiguously reads that the petitioner has not only submitted his joining report in compliance of the Impugned Order but also made request for release of his salary . Fair disclosure that Impugned Order has been acted upon by the petitioner and request made for release of the salary was not made before this Court regarding status of the Impugned Order evgn when the case was admitted and interim relief was granted on 1 1.12,2020. On this score alone, the petition merits dismissal.
12. A lot of emphasis has been laid on the point that the Competent Authority in the case of the petitioner is the Chief Minister but the impugned Order has been passed by the Secretary , SHC & ME Department. When confronted with, learned Law Officer submits that the suspension order was passed on verbal direction of the Chief Minister , who earlier visited the Hospital and took notice of non-professional conduct of the petitioner and later on, accorded ex post facto approval of the suspension on the summary put before him. As such, the Impugned Order has been passed with the approval of the Competent Authority and being so, it is a legal and valid order .
13. Since this Court has reached the conclusion that the present petition is not maintainable on the basis of what has been discussed herein above and the matter , at present, is before the Competent Authority , therefore, any further comments upon the merits of the case and grievance of the petitioner may prejudice the stance of either party before the . competent forum and hence, deference is being shown from any dilation thereof.
14. In the light of what has been discussed above, this writ petition is not maintainable, which is accordingly dismissed with no order as to cost.