Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), petitioner, who as an Addl. Inspector General of Police (BS-21) in Police Service of Pakistan (P.S.P.) was posted as Capital City Police Officer, Lahore (C.C.P.O., Lahore), has called in question three separate notifications dated 20.09.2022, 27.10.2022 and 05.11.2022 issued by respondent No.2 (Secretary Establishment Division, Govt. of Pakistan Cabinet Secretariat, Islamabad) whereby petitioner was transferred from Punjab Government to Federal Government, directed to relinquish the charge and submit his joining report and services of petitioner were placed under suspension. The following prayer has been made in this petition: "In view of above submissions, it is most respectfully prayed that the impugned Notification F.
No.12(27)/93-E-3(Police), dated 05.11.2022 whereby the petitioner has been suspended and the earlier Notification No.F-12(27)/93-E-3(Police) dated 20.09.2022 whereby the petitioner was transferred and directed to relinquish the charge and report to the Establishment Division and letter No.F-12 (27)/93-E-3 (Police) dated 27.10.2022 whereby the petitioner was required to relinquish the charge and report to the Establishment Division within 3 days, may be declared arbitrary, illegal, unlawful, unwarranted, unjustified in the eyes of law and the same may ordered to be set aside on the ground that the Provincial Government had restrained the petitioner from relinquishing charge till further order of the competent authority/Chief Minister Punjab.
It is further prayed that till the final disposal of the instant Writ Petition the operation of the impugned Notification F. No.12(27)/93-E-3(Police), dated 05.11.2022, No.12(27)/93-E-3(Police) dated 20.09.2022 and impugned letter No.F-12 (27)/93-E3 (Police) dated 27.10.2022 may very kindly be suspended.
Any other relief which this Honourable Court deems fit and necessary may also be granted."
2. The operative parts of the impugned notifications dated 20.09.2022, 27.10.2022, 05.11.2022 are reproduced below respectively: "Mr. Ghulam Mahmood Dogar, a BS-21 Officer of Police Service of Pakistan, presently serving under Government of the Punjab, is transferred and directed to report to Establishment Division, with immediate effect and until further orders."
"I am directed to refer to the subject cited above and to state that you were transferred from Government of the Punjab and directed to report to Establishment Division vide this Division's notification dated 20.09.2022, with immediate effect and until further orders on the basis of a compliant with the approval of Prime Minister being competent authority as envisaged in Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, for subsequent initiation of fact finding inquiry but you have not yet submitted your joining report pursuant thereto.
2. I am, therefore, directed to instruct you to comply with the above mentioned notification by submitting your joining report to this Division within three (03) days of issuance of this letter failing which disciplinary proceedings under the Civil Servants (Efficiency and Discipline) Rules, 2020 shall be initiated against you."
"Mr. Ghulam Mahmood Dogar, a BS-21 officer of Police Service of Pakistan, presently serving under Government of the Punjab, is placed under suspension, with immediate effect and until further orders."
3. It is contended by learned counsel for the petitioner that no disciplinary proceedings were pending against petitioner and his services could not have been suspended merely as a punishment, which had been done with mala fide intentions as according to learned counsel for the petitioner an F.I.R. was registered against some Federal Minister in the Province of Punjab within jurisdiction of the petitioner resulting into initiation of proceedings against the petitioner by Federal Government. Seeks setting aside of the impugned orders/notifications.
4. On the other hand, learned Additional Attorney General has referred to transfer order dated 20.09.2022 and letter dated 27th October, 2022 issued after approval of Prime Minister being competent authority as envisaged in Rule 6 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 requiring petitioner to relinquish the charge and submit his joining report to the Establishment Division within three days of issuance of said letter failing which disciplinary proceedings under Civil Servants (Efficiency and Discipline) Rules, 1973 shall be initiated against him and states that as the matter relates to terms and conditions of service of petitioner resulting into suspension of his services, hence, this Court has no jurisdiction to entertain this petition. When confronted, learned counsel for the petitioner state that there is dispute between Federal and Provincial Governments relating to this matter wherein jurisdiction of Federal Government to initiate proceedings against petitioner is under challenge, therefore, this Court has jurisdiction to decide the matter as the impugned orders are coram non judice, mala fide and without lawful authority.
5. The petitioner, who is a member of police Service of Pakistan, was appointed on 29.07.2022 as C.C.P.O. by the Governor of Punjab, operative part of notification is reproduced below: "MR. GHULAM MEHMOOD DOGAR (PSP/BS-21), Additional Inspector General of Police, Logistics & Procurement, CPO, Punjab, is hereby transferred, with immediate effect, and posted as Capital City Police Officer, Lahore, against the vacant post in public interest."
6. Vide order dated 20.09.2022 the Federal Government had required the services of petitioner to be transferred to its Establishment Division. The petitioner has not been released by the Chief Minister of Punjab, who is stated to be appointing authority of police officers in Punjab. This has resulted into tussle between the two Governments relating to transfer and relieving of the petitioner by the Provincial Government to join the Establishment Division of the Federal Government. The claim of the petitioner is that he cannot join the Federal Government unless relieved by the Provincial Government from his duties. Petitioner has relied upon Rule 23 of the Punjab Government Rules of Business, 2011 to state that for the purpose of transfer and posting of C.C.P.O. approval of Chief Minister is a mandatory requirement to be obtained before issuance of transfer order and in view thereof claims that unless he is relieved by the Chief Minister, he is not in a position to join the Federal Government. Further it is claimed that if disciplinary proceedings are to be initiated against the petitioner by the Federal Government, it has to refer the case to Chief Secretary, Government of Punjab for probe or fact finding inquiry and may initiate proceedings after receiving his findings of that probe or fact finding inquiry and if such report is not received within two months, the Federal Government may on its own proceed against the petitioner in view of Section 18 of the Efficiency and Disciplinary Rules, 2020 and not otherwise, hence, according to the petitioner the Federal Government has not got any authority to initiate proceedings against the petitioner without first having resort to the procedure prescribed in the said Rule, which is reproduced below: "18. Procedure of inquiry against civil servant on deputation or working in other Governments or organizations etc.--(1) Where an authority determines to proceed against a civil servant who is on deputation to any other Government, department, corporation, body corporate, autonomous or semiautonomous body, statutory body or any other organization or institution, hereinafter referred to as the borrowing organization, the authority of such civil servant in his parent department may --
(a) ask the relevant Government or borrowing organization, to frame charges against the civil servant and forward the same to his parent department; or
(b) initiate proceedings against him on its own under these rules.
(2) In case of members of All Pakistan Service posted in a Province, Establishment Division may refer a case to the Chief Secretary concerned for probe or fact finding inquiry and may initiate proceedings on the findings of that probe or fact finding inquiry, or on its own if no findings are received within two months: Provided that in case of proceedings against any Chief Secretary of a Province, the Establishment Division shall frame the charges and initiate the disciplinary proceedings with approval of the Prime Minister."
7. The main grievance raised by the petitioner is against his suspension order resulting from non compliance of his transfer order due to circumstances beyond his control and this Court has been approached to set aside the said orders on the ground that the orders have been passed without lawful authority and no other equally and efficacious alternate remedy is available to the petitioner to call the same in question.
8. Be that as it may, Honourable Supreme Court of Pakistan in judgment reported as "Asadullah Rashid Vs. Haji Muhammad Muneer and others" (1998 SCMR 2129) has categorically laid down that constitutional petition under Article 199 of the Constitution is not maintainable by civil servant in relation to any matter connected with terms and conditions of his service in respect whereof the Service Tribunal has jurisdiction in view of Article 212 of the Constitution. Orders, even if mala fide, ultra vires or coram non judice fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as a result of barring provision of Article 212 of the Constitution. The same view was reiterated by the Honourable Supreme Court of Pakistan in judgment reported as "National Assembly Secretariat through Secretary Vs. Manzoor Ahmed and others" (2015 SCMR 253).
9. In judgment reported as "Syed Arshad Ali and others Vs. Pakistan Telecommunication Company and others" (2008 SCMR 314) it has been laid down as under: "It is well-recognized that if a right has been conferred by a statute and a complete mechanism has been provided for enforcement thereof, there could hardly be any occasion to invoke the applicability of fundamental rights. The jurisdiction of the High Court will be patently barred under Article 212 of the Constitution of Islamic Republic of Pakistan, in view of the specific forum provided for redressal of the grievances of the petitioners, even if the order proposed to be challenged may have been passed in whatsoever circumstances viz. mala fide, coram non judice or without jurisdiction. This principle has been laid down in the case of I.A. Sharwani and others V.
Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041. Besides it is also well-settled proposition of law that writ jurisdiction could not be exercised where equally efficacious remedy is available."
10. In view of the principles laid down in afore-referred judgments all the questions relating to terms and conditions of service of a civil servant including the grounds of mala fide, lack of jurisdiction, ultra vires the jurisdiction, order being coram non judice and involvement of fundamental rights can be determined by the Services Tribunal in view of Article 212 of the Constitution and this Court lacks jurisdiction to entertain the same in view of bar imposed by the said Article. Reference in this behalf may also be made to judgment reported as "Ali Azhar Khan Baloch and others Vs. Province of Sindh and others" (2015 SCMR 456) wherein while holding that transfer, posting and disciplinary matters fall within terms and conditions of service of a civil servant, it has been laid down as under: "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 Tribunals. "
11. Moreover, in judgment relating to transfer and posting reported as "Peer Muhammad V.
Government of Balochistan through Chief Secretary and others" (2007 SCMR 54) the Honourable Supreme Court of Pakistan has reiterated the established position of law that the bar contained in Article 212 of the Constitution ousts jurisdiction of all other Courts even if the order under challenge is without jurisdiction or mala fide.
12. The order of transfer of a civil servant squarely falls within terms and conditions of his services and resultantly could not be called in question before this Court. The order to relinquish the charge and join service at the place of posting is a continuation of earlier order of transfer and as a necessary corollary same also falls within the ambit of terms and conditions of services of civil servant and beyond jurisdiction of this Court in ordinary circumstances. Reliance in this behalf can be placed on judgment reported as Ali Azhar Khan Baloch's case mentioned supra.
13. It is already noted above that disciplinary matters fall within the terms and conditions of service of a civil servant. The question relating to suspension of services of an employee came up for consideration in the case titled "Imdad Ali Khawaja versus The State and others" (2016 SCMR 2057) wherein the Honourable Supreme Court of Pakistan while dealing with the order of suspension of a civil servant who was a police officer held as under:- "7. We are also not in agreement with the observations made by the learned Judge in the order dated 12.08.2016 that if an enquiry is initiated, the officer must be placed under suspension. This is the discretion of the competent Authority and the discretion can be exercised considering relevant factors in the enquiry. Under Police Rule 16.19, during the enquiry against a police officer, who is involved in a criminal case, such police officer needs to be placed under suspension in order to avoid his influence. Therefore, the perception that an officer who is facing enquiry must be placed under suspension is against the spirit of service rules. Even otherwise, it is never encouraged that the High Court in collateral proceedings can step in the shoes of the competent Authority by ordering suspension of 'civil servant' while directing initiating of departmental inquiry.
The discretion in regard to placing an officer under 'suspension' falls within the domain of competent authority under the service law, and in case the competent Authority considers and or anticipates that during enquiry, the officer may tamper with the evidence or influence the witnesses or act in a manner to prejudice the outcome of the enquiry, the competent authority may suspend such officer. The learned Judge of the High Court lost sight of the fact that jurisdiction of the High Court is barred under Article 212(3) of the Constitution in relation to the terms and conditions of a civil servant besides the fact that while hearing a criminal appeal, High Court cannot pass order of suspension of police officer in a collateral issue but can always recommend for enquiry against him if his conduct during the course of hearing appears to be unbecoming of a police officer."
14. From the perusal of the principles mentioned in the afore-referred judgment it is clear that suspension order of a civil servant falls within the ambit of terms and condition of service of the civil servant which include transfer, posting and disciplinary matter and same would come under the domain of the Service Tribunal and hence beyond the jurisdiction of this Court to interfere under Article 199 of the Constitution. Reference in this behalf may also be made to judgment titled "Abdul Malik versus Government of Punjab and others" (2019 PLC (CS) 764) passed by this Court wherein the afore-referred principles have been reiterated. The operative part of the same is reproduced below: "5. The petitioner being PST Teacher and an employee of Education Department is a civil servant.
The suspension order assailed through the instant writ petition necessarily falls within the terms and conditions of service of civil servants. Mere suspension is not a punishment and suspension of a government servant during the course of his service simply means that no work is to be taken from him during the period of his suspension. Suspension is only a temporary measure, wherein the petitioner is entitled to receive his full emoluments in view of the judgment of the Hon'ble Supreme Court of Pakistan in case titled Government of N.W.F.P v. I.A Sherwani (PLD 1994 SC 72).
The Service Tribunal had jurisdiction to decide such like matters in due course of law and writ petition is not maintainable. Reliance is placed on Abdul Hameed v. Province of K.P.K. through Chief Secretary, Peshawar and 3 others (2016 PLC (C.S) 424) and Khawaja Wajid Ali v. District Coordination Officer and another (2017 PLC (C.S.) 749 (Lahore). In view of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 this Court is not vested with jurisdiction to interfere in the impugned order dated 28.09.2018 passed by respondent No.3.
Reliance can be placed upon the judgments of august Supreme Court of Pakistan reported as Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456) and Sh. Riaz-ul- Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 Supreme Court 501).
6. Even otherwise the petitioner has been suspended under the PEEDA Act, 2006, which provides for its own mechanism and suspension order is a preliminary stage in the disciplinary proceedings initiated against a civil servant which may culminate into a final order providing cause of action to the petitioner to seek remedy under the said law, therefore, this constitutional petition challenging such order would be premature at this stage. The petitioner has an alternate efficacious remedy by approaching the departmental appellate authority and then the respective Service Tribunal for redressal of his grievance. Reliance in this regard is placed on Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842) and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813).
7. Discretion of a competent authority to place an officer/official under suspension fell within the domain of competent authority under the relevant service law. In case the competent authority considered and or anticipated that during enquiry, the officer may tamper with the evidence or influence the witnesses or act in a manner to prejudice the outcome of the enquiry, the competent authority may suspend such officer. The Hon'ble Supreme Court observed that the High Court in collateral proceedings could not step in the shoes of the competent authority by ordering suspension of civil servant while directing initiating of departmental proceedings.
Reliance in this regard is placed on Imad Ali Khawaja v. The State and others (2016 SCMR 2057).
8. For what has been disused above, in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan and availability of alternate remedy to the petitioner, this constitutional petition is not maintainable and, therefore, stands dismissed in limine."
15. Similar principles have been laid down in judgments titled "Mian Zafar Haider versus Deputy Commissioner and others" (2019 PLC (CS) 658) and "Manzoor Hussain Mari versus Chief Secretary and 2 others" (2019 PLC (CS) Note 23) (Sindh).
16. The learned counsel for the petitioner have relied upon judgment reported as "Federation of Pakistan through Secretary establishment, Islamabad Vs. M.Y. Labib-Ur-Rehman and others" (2021 SCM R 1554) by stating that in the said judgment it has been held that jurisdiction of the High Court is not ousted in the matters relating to terms and conditions of service of civil servants. The said judgment does not refer to a general rule rather refers to certain exceptions where constitutional petition may be entertained, however, also provides that said jurisdiction is to be used sparingly and exercising of said jurisdiction should not frustrate statutory remedies available under the law which may be against the legislative intent. It is important to note here that the order passed by the High Court was set aside in the said judgment by referring to principles on the subject, the operative part of which is reproduced below: "The High Court without indulging into the question of maintainability passed the order in cyclostyle fashion while assuming the jurisdiction which is not vested in it. This Court in the recent judgment dated 21.05.2021 titled as Khalilullah Kakar v. PPO Balochistan passed in Civil Appeal No. 909/2020 etc. has candidly held that Article 212 of the Constitution specifically places an embargo on all other courts except the Service Tribunal to assume jurisdiction. It is now established that any relating to terms and conditions of service is within the domain of administrative courts and tribunals established under Article 212 and even if the element of mala fides, ultra vires or coram non judice is pressed into, the same can be entertained and decided by the said courts in its jurisdiction. There is no denial to this fact that the bare reading of the said Article is of significant importance especially with reference to its exclusive jurisdiction to entertain matters relating to terms and conditions of service. Hence, in all eventualities any petition relating to terms and conditions of service is to be dealt with by administrative courts and tribunals specifically established for its adjudication in pursuance of Article 212 of the Constitution. As a general principle, the framers of the Constitution while inserting the said provision have ousted the jurisdiction of other courts including the High Court under Article 199 of the Constitution. There are certain exceptions depending upon the facts and circumstances on case to case basis because of the reason that the law is not static and the same is growing day by day, therefore, it cannot be said with certainty that in all eventualities the service issues cannot be called in question in Constitutional jurisdiction before the High Court. The Constitutional jurisdiction is always considered as extraordinary, which is to be exercised in extraordinary circumstances if so warranted, hence, the Constitutional jurisdiction cannot be curtailed stricto senso leaving some room for its application where it is so demanding for safe administration of justice and fair play.
The superior courts while exercising Constitutional jurisdiction must satisfy themselves that they may not interfere or infringe the jurisdiction of any other statutory forum in any manner when an equally efficacious/adequate remedy is available under the statute for the redressal of the grievances of the litigants. Hence, the superior courts should be reluctant to frustrate the statutory remedies while exercising their Constitutional jurisdiction, which otherwise has to be exercised sparingly while enabling to advance the legislative intent. "
17. In view of the principles mentioned above, this Court would have jurisdiction in matters of civil servants only to the extent where the said matters do not fall within the jurisdiction of Services Tribunal. In the present case, the petitioner has remedy to challenge the impugned notifications/orders before the relevant forums including departmental authorities and Service Tribunal, consequently this Court lacks jurisdiction to entertain the dispute in hand and reliance of the petitioner on judgment reported as "Federation of Pakistan through Secretary establishment, Islamabad Vs. M.Y. Labib-Ur-Rehman and others" (2021 SCMR 1554) is misplaced as the case of the petitioner does not fall within the exceptions referred to in the said judgment as the petitioner has raised grievance against transfer, direction to relinquish charge and join at place of posting and against his suspension order which squarely fall within terms and conditions of petitioner's service, consequently, this petition is not maintainable before this Court and is disposed of as High Court lacks jurisdiction to entertain the same. The petitioner, if advised, may seek appropriate remedy in accordance with law.