MIAN ALLAH NAWAZ, J.--This I.C.A. is preferred by Shaghufta Bibi against the order of the learned Single Judge of the High Court dated 2-7-1989 whereby the Constitutional Petition No, 1016 of 1989 against the order of transfer passed by District Education Officer, Sahiwal dated 3-6-1989, was dismissed.
2. The controlling facts of this appeal are not in dispute. The uncontested facts are; that Mst.
Shaghufta Bibi herein appellant was appointed as P.T.C. lady teacher in Scale No, BPS-7 vide order dated 18-10-1987. She was appointed in Government Girls Primary School Arazi Shahmand near Harrapa. Alongwith four other teachers she was transferred by Deputy Education Officer (Women)
Tehsil and District Sahiwal to Government Girls Primary School Dhudian-DiBahni. This was vide order dated 17-5-1989. The appellant had been performing her duties in the said Primary School when on 3-6-1989 her order dated 17-5-1989 was cancelled by Deputy Education Officer (herein being referred as respondent).
3. Feeling aggrieved by this order, petitioner filed Constitutional petition before the High Court of Lahore, Multan Bench on the ground that the impugned order of the transfer was passed at the dictation of Minister of Revenue, Government of Punjab and that respondent had not passed any order by application of independent mind.
4. The learned Single Judge of the High Court dismissed the petition in limine holding that order of transfer had taken effect and therefore discretionary relief under Constitutional jurisdiction could not be granted to the appellant. This I.CA. is directed against the said order dated 2-7-1989.
5. The petition was admitted to regular hearing to examine the contention of the appellant that respondent had not passed any order for transfer and that order was passed in pursuance of directive by Minister for Revenue, Government of Punjab. The Deputy Education Officer (Woman) entered appearance before this Court on 9-8-1989 and made the statement wherein she catagorically stated that she passed the impugned order in compliance with the direction of Minister for Revenue Government of Punjab.
6. It will he advantageous to reproduce statement of Mrs. Jameela Sikandar respondent which is as follows:- "Shagufta Bibi (appellant) a teacheress was transferred from Government Girls Primary School, Arazi Shahamand to Government Girls Primary School, Dhuddian-Di-Bhaini vide my order, dated 17-5-1989. Subsequently, I received a direction from Minister for Revenue to cancel the transfer of Shagufta Bibi (appellant). In compliance with the direction of Minister for Revenue, I had cancelled the aforementioned transfer of Shagufta Bibi vide my order dated 3-6-1989 and appointed Ferzana Aslam, P.T.C. teacheress and posted her in Government Girls Primary School, Dhuddian-Di-Bhaini."
7. The learned counsel for the appellant in support of appeal contended that the order of the learned Single Judge of the High Court was illegal as the learned Single Judge had not adverted to the fact that the impugned order of the transfer was illegal, void ab initio (ii) that from the statement of respondent it was very clear that the order of the transfer was passed by respondent without any administrative necessity and that it was passed in mechanical obedience to the direction of the Revenue Minister who was not competent authority to issue such direction of transfer. Attention was drawn to the powers of competent authority in respect of primary school teachers given in Schedule of Punjab Education Department School Education Recruitment Rules, 1987 which is as follows:-- Name of Appointing Method of Age for initial the post. authority. recruitment recruitment.
Primary Deputy by initial 18 - 25 School District recruitment. teachers Education BPS-7. Officer of Tehsil concerned.
(iii) On the basis of aforesaid arguments it was asserted that the impugned order of the transfer was totally void and merited to be treated as such. The reliance was placed on Prof. Dr. Syed Adil Hussain v. University of Karachi and others 1989 PLC (C.S.) 527; Muhammad Gul Kakar v. Province of Balochistan 1986 PLC (C.S.) 560; Bashir Ahmed v. D.C. Sialkot and others 1985 PLC (C.S.) 1067; Mazhar Hussain v. Province of Punjab PLD 1985 Lah. 394, Muhammad Sadiq v. Director, Agriculture Economics and Marketing, Punjab, Lahore and 2 others 1981 PLC (C.S.) 432, Islamuddin v. Deputy Director of Education 1981 PLC (C.S.) 843; Abdul Karim Khan, Chairman Road Transport Board N.- W.F.P. v. Jamshed Begum 1976 PLC 314; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331.
8. We have heard arguments of the appellant in length. The appeal was not resisted by the respondent. After hearing we have given the anxious consideration to argument of the appellant and hereinafter proceed to determine the contentions put forward by appellant.
9. Before we proceed to examine the merit of the contention it will be appropriate to ascertain the applicable law.
10.The terms and conditions of the civil servants are given in Punjab Civil Servants Act, 1974 (Act IX of 1974) the relevant section 9 of the ibid is as follows:-- "9. Postings and transfers.--Every civil servant shall be liable to serve anywhere within or outside the province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a body set up or established by any such Government: Provided 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 entitled if he has not been so required to serve."
Under section 23 of ibid, the Governor or any person authorised in this behalf has been given powers to make rules which appear to him necessary or expedient for carrying out the purpose of this Act.
11. From the bare examination of section 9 and Rules it is very clear that the transfer is a part of terms and conditions of service. It is usual incidence of service. From the examination of law it is clear that the Minister for Revenue who is neither the competent authority nor the supervisory authority for primary teachers in Education Department, has no authority to issue direction for transfer. The Deputy Education Officer herein respondent is a competent authority under Punjab Education Department School Education Recruitment Rules, 1987 to make appointment and transfer of the petitioner. We have therefore no doubt in our mind that Minister for Revenue had no powers to issue I direction to competent authority for the purpose of making transfer.
12. There is another aspect of the matter which persuaded us to accept this appeal. The respondent made a categorical statement that she had passed the order in compliance with the order of Revenue Minister; that she had not passed the impugned order after applying her mind and on the basis of the administrative necessity. The Government in our country is a Government of B laws. The Government functionaries are bound to act within the domain of law. Each and every authority is required to pass the order after the application of its mind. In this case no such order was passed. Therefore we have no hesitation in coming to conclusion that the order was null and void and has no legal effect.
In Mazhar Hussain Khan and others v. Government of West Pakistan and 5 others 1983 SCMR 40, it was held "the orders are palpably against the instructions contained in the memorandum in question and are therefore, void ab initio. They were rightly directed to be ignored."
In Bashir Ahmed v. D.C. Sialkot and others 1985 PLC (CS) 1067, High Court quashed the order of Deputy Commissioner, Sialkot whereby the petitioner was compulsory retired under section 12(2) of Punjab Civil Servants Act, 1974 on the premises that the order passed was completely without jurisdiction.
In Director, Agriculture Economics and Marketing, Punjab, Lahore and 2 others 1981 PLC (C.S.) 432 the order of compulsory retirement of petitioner Muhammad Sadiq was quashed as having been passed by the authority who was not competent to pass the order of compulsory retirement.
In Dr. Syed Adil Hussain v. University of Karachi and others 1989 PLC (C.S.) 527 High Court quashed the order of transfer as the order of transfer was held to be illegal and detrimental to employee's interest.
13.Needless to reiterate the Federal Government and the Provincial Governments wield the executive power under the Constitution and laws. The Government functionaries are the creature of law and bound to obey the law and exercise their authority strictly within the sphere of law. If the authorities transgress their limits their actions or acts are beyond their sphere and these actions are coram-non-judice and are to be declared as such.
14.Applying the ratio emerging from the said cases to the facts of the case we are clear in our mind that impugned order is without jurisdiction and totally void. The order of learned Single Judge, therefore, cannot be sustained.
15.In peculiar circumstances of this case we accept this appeal, the order of the learned Single Judge dated 2-7-1989 is set aside. The impugned order of transfer dated 3-6-1989 is declared to have been passed without any lawful authority, it is declared as such. This order shall not preclude the competent authority from making the order of transfer in respect of appellant in accordance with law in future.