This Constitutional petition is directed against the order dated 1-2-1994 cancelling the earlier order of transfer dated 3-1-1994 the effect of which is that the petitioner Malik Irshad Ahmed Sub- Engineer stands transferred from Quarry Section-I of Shahpur Division, Sardgodha.
2. Briefly stated the facts of the case are that Government of Punjab Irrigation and Power Department issued postings/transfers of Sub-Engineers of Sargodha Irrigation Zone, by order dated 19-8-1993 in respect of 136 Sub-Engineers and the petitioner figures at No. 31 of the list and transferred to Quarry Section-I Shahpur Division, Sargodha. This order dated 19-8-1993, was issued with immediate effect in the public interest and is so stated. Thereafter the Chief Engineer by his order dated 12-12-1993 transferred the present petitioner from Quarry Section-I Shahpur Division and in his place posted Mohammad Shafi Sub-Engineer whereupon a Writ Petition No. 23 of 1994 was filed where the learned Advocate-General was called for and the writ petition of the petitioner alongwith several others were disposed of on the statement of the Law Officer in respect of all the writ petitions that if there was any injustice the same will be remedied. It may be observed that by order dated 12-12-1993 the petitioner was directed to report to his Zonal Office for further posting, as is observed above, and this order was held in abeyance on the statement of the learned Advocate-General.
3. Now by the impugned order dated 1-2-1994 the petitioner stands transferred from Quarry Section I, Shahpur Division against which the present writ petition-has been filed.
4. The learned counsel for the petitioner has vehemently urged that the impugned order of transfer is politically motivated, mala fide, without jurisdiction, not passed in the public interest and in fact no order in the eye of law. It can at best be termed as a simple and pure action of the respondent which on the face of it is without jurisdiction. He further emphasised that the order in question is not relatable to the terms and conditions of the service and, therefore, no cause of action has arisen to the petitioner to move the appropriate tribunal as envisaged under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973.
5. In support of the plea of the petitioner reliance is placed on Abdul Rauf etc. v. Abdul Hamid Khan etc. PLD 1965 SC 671, Siddique Ahmad Chaudhry v. Chairman, West Pakistan Agricultural Development Corporation PLD 1968 Lah. 685, M.S. Faruki, Chief Officer, Lahore v. The Province of West Pakistan and others PLD 1970 Lah. 195, State v. Zia ur Rehman etc. PLD 1973 SC 49, The Federation of Pakistan v. Saeed Ahmad etc. PLD 1975 SC 151, Brig. (Retd.) F.B. Ali and others v. State PLD 1975 SC 506, M. Yamin Qureshi v. Islamic Republic of Pakistan etc. PLD 1980 SC 22, Iqan Ahmad Khurram v. Government of Pakistan etc. PLD 1980 SC 153, S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612, Islamic Republic of Pakistan v. Dr. Safdar Mahmood PLD 1983 SC 100, The Superintendent of Police Headquarter, Lahore v. Muhammad Latif PLD 1988 SC 387, Mst.
Yasmeen Nighat v. National Bank of Pakistan etc. PLD 1988 SC 391, Abdul Wahab Khan v.
Government of Punjab PLD 1989 SC 508, Pakistan International Airlines and another v. F.M. Shamsi PLD 1990 SC 943, Iftikhar Alam etc. v. Province of Punjab etc. 1991 CLC 2004, Rao Shamsher Ali Khan v. Government of Punjab etc. 1993 SCMR 1692. The petitioner has also pointed out certain portions from each case-law and, therefore, consumed considerable time to complete his arguments.
Reliance is also placed on admitting note dated 17-1-1994 in Writ Petition No.17538 of 1993 of this Court.
6. I have considered the plea of the learned counsel with reference to the case-law cited at the bar and am of the view that the facts of the precedent cases are inapplicable and, therefore, the principle cannot be applied in the present case.
7. It was pointed out to the learned counsel that the case of the petitioner is directly covered by the law laid down in 1991 SCMR 477 (Syed Afzal Ahmad Hydari v. Secretary, Defence Production Division, Ministry of Defence, Rawalpindi and 3 others and 1992 SCMR 1843, Nazir Hussain (Ex---Director Excise and Taxation), Administrator Auqaf N.-W.F.P., Peshawar v. N: W.F.P through the Chief Secretary/Secretary, Services and General Administration Department, Government of N.-W.F.P., Peshawar and 2 others) but he states that these two cases are not applicable in the case of the petitioner.
8. In Syed Afzal Ahmad Hydari's case (supra) the petitioner was posted to Karachi as Research Officer, in Defence Science and Technology Organization Labs Karachi and in the same capacity was transferred to Chaklala vide order dated 22-11-1987. His representation against this was dismissed and against this he filed appeal before the Federal Service Tribunal on the ground that the order was mala fide, that the petitioner was transferred to a post where he could not render services as per his qualification and that the petitioner's ill-health did not permit him to discharge his duty at the place of new posting. His appeal was dismissed by order dated 3-11-1988 of the learned Chairman and Members of the Tribunal resulting in the aforementioned appeal which was dismissed by Honourable Supreme Court and the operative part is as hereunder:-- "We have every sympathy with the petitioner but he has not been able to find any rule or law placing any bar on the jurisdiction of the. Competent authority in making the transfer without the consent of the affected person. Section 10 of the Civil Servants Act, 1973 in clear and unambiguous terms says that every civil servant shall be liable to serve anywhere within or outside Pakistan on any post under the Federal Government or the Provincial Government or a Local Authority or the Provincial Government or a Local Authority or a Corporation. We are, therefore, of the view that the petitioner could be transferred to work in any post under the Federal Government, without his consent."
8-In the second case of Nazir Hussain, he filed writ petition challenging the order dated 16-8-1990 transferring him from the post of Director, Excise and Taxation, N.-W.F.P., Peshawar to the post of Deputy Secretary, Board of Revenue and posting of Muhammad Riaz Khan in his place and this writ petition was dismissed resulting in the aforementioned Civil Petition No.201-P of 1991 before the Hon'ble Supreme Court and the following is the operative part of the order:-- "Under section 10 of the N.-W.F.P. Civil Servants Act, 1973, any civil servant is liable to transfer anywhere within or outside the province to any post under the Federal Government or any Provincial Government or local authority or corporation or body set up or established by any such Government and the Government employee cannot object to his transfer. The petitioner was transferred from the post of Director, Excise and Taxation by the Government of N:--W.F.P. And in his place respondent No.3 was posted. This was within the power of the transferring authority/respondent No.1 and could not be legally assailed by the petitioner. The impugned order of High Court, therefore, does not suffer from any legal infirmity."
9. In the precedent cases it has been clearly laid down that a public servant is liable to transfer. In view of this the plea of the learned counsel that the ratio in the aforementioned two cases is not applicable in the case of the petitioner is not tenable.
10. It is correct that the impugned order dated 1-2-1994 has been passed, as stated in' it, in pursuance of the directive of the Chief Minister but does not render the impugned order passed by the Chief Engineer Irrigation, Sargodha Zone as without jurisdiction because the law is otherwise clear and the petitioner cannot insist for a particular posting. No material has been shown on the record that the order is mala fide except an oral assertion that the same has been passed in pursuance of the directive of the Chief Minister. In case of Afzal Ahmad Hydari it was argued that the transfer order was mala fide and this was taken note of in the order dismissing the appeal of the petitioner by the Hon'ble Supreme Court holding that every civil servant shall be liable to serve anywhere within or outside Pakistan.
11. The impugned transfer is made in series of several other transfers of 136 Sub-Engineers including the petitioner as is evident from order dated 19-8-1993 of the respondents Government of the Punjab Irrigation and Power Department and it is not understandable why the petitioner is insisting for a particular posting. In this view of the matter I am not inclined to exercise my extraordinary jurisdiction in this case.
Resultantly, there is no merit in this writ petition which is dismissed in limine