1. This order will dispose of following connected Writ Petitions duo as they involve determination of common question of law:-- .
2. (1)Muhammad Yasin v. Government of Punjab, etc.' (W.P. No.10121 of 1993).
3. (2)Rafiq Ahmad Aleem v. Government of the Punjab, etc.' (W.P.No. 10122 of 1993).
4. (3)Mirza Muhammad Yamin v. Government of the Punjab etc.' (W.P. No.10123 of 1993).
5. (4)Ghulam Muhammad v. Government of the Punjab etc.' (W.P. No. 10124 of 1993).
6. (5)'Muhammad Hafeez Akhtar v. Government of the Punjab, etc.' (W.P. No.10091 of 1993).
7. (6)`M. Saleem v. Government of the Punjab, etc., (W.P. No.10092 of 1993).
8. (7)`Tasaddaq Hussain Niazi v. Government of the Punjab, etc.' (W.P No.10416 of 1993).
9. (8)`Ata Elahi v. Province of Punjab, etc.' (W.P. No.10417 of 1993).
10. (9)`Bashir Ahmad Zahid v. Secretary, Government of the Punjab etc, (W.P. No.9957 of 1993).
(10) 'Abdul Aziz v. Government of the Punjab, etc.' (W.P. No.10183 of 1993).
(11) 'Muhammad Boota v. Inspector-General of Police Punjab, Lahore etc.' (W.P. No.10065 of 1993).
(12) 'Muhammad Nadim-ud-Din v. Government of the Punjab, etc.' (W.P. No.10410 of 1993).
(13) `Arshad Jamil v. Province' of Punjab, etc.' (W.P. No.10413 of 1993).
(14) `Professor Muhammad Ashraf v. Province of Punjab etc.' (W.P. No.10097 of 1993).
2. Through the above Constitutional petitions the petitioners who are admittedly civil servants of- various departments of Punjab Government and who have been transferred from their present place of posting by the respondents, have challenged their orders of transfer as being illegal and without a lawful authority. Grievance of the petitioners in all these petitions is that the respondents who are the functionaries of the Care-taker Government have passed orders of their transfer enblock in violation of the transfer policy and in colourable exercise of jurisdiction inasmuch as the transfer orders have not been passed in the public interest but on the ground that those are necessary for holding of fair and free elections to the Provincial and National Assemblies of the country. All the learned counsel for the petitioners in all the petitions have been heard at length.
11. They have reiterated the arguments raised in the memorandum of writ petitions and have vehemently argued that the impugned orders are illegal and without a lawful authority and have been passed without any lawful basis and justification. Learned counsel have contended that there is no basis for coming to the conclusion that the petitioners would influence the coming elections but they have been transferred by passing of enblock orders, without judicious application of mind to each case, hence the orders besides being void are against the terms and conditions of their service. It is further contended that the Care-taker Government has no jurisdiction to transfer its employees as the only mandate of the said Government is to hold free and fair elections and to quit after handing over power to the elected Government. Reliance is placed on the following cases:-- IA. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041, Muhammad Azhar v. General Manager (Operation), Power, WAPDA PLD 1990 Lah. 352, Malik Ghulam Mustafa Khar and others v. Pakistan and others PLD 1988 Lah. 49, Kh.
12. Muhammad Sharif v. Federation of' Pakistan through Secretary, Cabinet Division, 'Government of Pakistan, Islamabad and 18 others PLD 1988 L.A. 725, Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 and Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC
506. Learned counsel have further relied upon the interim order passed by a learned Single Judge of this Court in W.P. No.9638 of 1993 (Capt. Rad. Abdul Oayyum v. Province of Punjab, etc., which is to the following effect:-- "Contends with reference to Kh. Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah. 72,5 that a Care-taker Government is only meant to carry on day-to-day business during the interregnum of dissolution of the National/Provincial Assemblies and induction of the new one after the elections but it cannot override the established and ongoing policies of the Government without any rhyme or reason. Ordinarily, according to him, the transfer of a public servant would not call for interference from a Court of law but wholesale transfers from top to bottom horizontally as well as vertically is beyond the mandate of Caretaker Government. He also asserts that this policy would result in the depletion of the already lean resources of the Province and it would be against the national interest.
(2) Let a pre-admission notice to issue to the Advocate-General for 28-8-1993. Till then all the Officers affected including the petitioner who have so far not relinquished their charge would continue to hold their offices and to perform their duties in accordance with law, Rules and the Policy of the Government."
13. It is argued by the learned counsel that keeping in view the principle of uniformity, this Bench should also pass a similar order in the writ petitions in question.
3. I have summoned Mr. Tasaddaq Hussain Jillani, learned Officiating Advocate-General, Punjab and Rana Muhammad Arshad, learned Additional Advocate-General, Punjab to assist this Court at limine stage in order to examine as to whether this Court has jurisdiction to entertain such like petitions in view of the provision of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Both the learned Law Officers have vehemently opposed the maintainability of the writ petitions and have contended that the transfer orders have been passed in bona fide exercise of jurisdiction within the four corners of the mandate given to the Care-taker Government to hold free and fair elections and at any rate the jurisdiction of this Court is barred to entertain these petitions inasmuch as the grievance of the petitioners, if any, can only be redressed by Punjab Service Tribunal, which has been constituted in pursuance of the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 which Tribunal is presently functioning. Elaborative argument of the learned Law Officers in this behalf is that the impugned orders of transfer having be6n passed by the competent authorities are final and are relatable to the terms and conditions of service of the petitioners who are civil servants, therefore, this Court has no jurisdiction to entertain the petitions. It is further contended that civil servants are liable to be transferred anywhere within the Province of Punjab and have no vested right to claim to remain posted at a particular place of posting as per section 10 of the Civil Servants Ad, therefore, there being no enforceable vested right to remain posted at a particular place of posting, the petitions are liable to be dismissed on this ground as well. In support of their arguments learned Law Officers have relied upon the following judgments:--
(1) 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 (1992 SCMR 1843).
(2) Syed Afzal Abmad Hydari v. Secretary Defence Production Division, Ministry of Defence, Rawalpindi and 3 others (1991 SCMR 477).
(3) IA Sharwani v. Government of Pakistan through Secretary, Finance Division, Islamabad (1991 SCMR 1041).
(4) Mst. Naseem Saddique v. District Education Officer (W), Sahiwal and 2 others (1991 MLD 2214).
4. I have considered the arguments addressed by the learned counsel for the petitioners as well as the learned Law Officers and have also gone through the judgment cited at bar. Although at one point of time, the view of this Court has been that even in transfer matters, this Court can interfere yet in the recent past. Their Lordships of the Supreme Court of Pakistan have laid down that neither the civil servant has any vested right to remain posted at a particular place of posting nor this Court has jurisdiction to entertain writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against order of transfer of a civil servant in view of the clear bar of jurisdiction as contained under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973. In case of "Syed Afzal Ahmad Hydari" supra, where the petitioner had challenged his transfer order, at page 478 of the report, it has been held as under:-- "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 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."
14. Similarly, in case of Nazir Hussain (Ex-Director Excise and Taxation), Administrator, Auqaf, N.W.F.P., Peshawar through the Chief Secretary/Secretary, Services v. General Administration Department Government of N: W.F.P., Peshawar and 2 others (1992 SCMR 1843) at page 1844 of the report, it has been held as under:-- "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."
15. In case of Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another (1990 SCMR 999), it has been held that even mala fide order is exclusively triable by a Service Tribunal and is not justiciable by the High Court. At page 1001 of the report, it has been held as under:-- "As under Article 212(3) of the Constitution the Service Tribunal has exclusive jurisdiction to deal with the terms and conditions and the relief claimed by the petitioner also form the terms and conditions of service, the High Court has appropriately held that the matter was a fit one for examination by the Service Tribunal."
16. Even this Court in later judgments rendered in case of "Mst. Naseem Saddique" who had challenged her transfer order, which is reported as Mst. Naseem Saddique v. District Education Officer (W), Sahiwal and 2 others (1991 MLD 2214) and Writ Petition No. 9749 of 1993 decided by me on 23-8-1993, this Court has taken the view that the orders of transfer passed by the competent authority in relation to the civil servants are not challengeable in writ jurisdiction of the High Court and the remedy available to the aggrieved civil servants is to approach the relevant Service Tribunal. The case of Muhammad Azhar v. General Manager (Operation), Power, WAPDA PLD 1990 Lahore 352 relied upon by the leaned counsel for the petitioners is not in accord with the latest view of the Hon'ble Supreme Court of Pakistan and, therefore, the law declared therein cannot be followed. In case of Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506, it has been held that High Court can entertain a writ petition if an order is passed in colourable exercise of jurisdiction even if the dispute arises out of an order passed by the authorities of the Armed Forces.
17. This case is distinguishable' inasmuch as Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 was not a part of the Constitution at that time and it has been added subsequently, and the matter in issue in the present case was not adjudicated upon in that case. Article 212 supra specifically excludes the jurisdiction of the High Court to entertain the disputes in relation to terms and conditions of civil servants and Article 199 of the Constitution of Pakistan, 1973 is to be read subject to the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. In case of Hakim Khan and 3 others v. Government of Pakistan through Secretary, Interior and others PLD 1992 SC 595, it has been held by the Hon'ble Supreme Court that all the Articles of the Constitution have to be harmoniously interpreted, and, therefore, the exclusion of jurisdiction of this Court to deal with the disputes which fall within the effusive jurisdiction of the Service Tribunal.
18. Being absolute this Court has no jurisdiction to entertain the writ petitions. The view taken in case of Kh. Muhammad Sharif v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan Islamabad and 18 others PLD 1988 Lahore 725 cannot be followed in view of the law declared by this Court in case of Khawaja Ahmad Tariq Rahim v. Federation of Pakistan and another PLD 1991 Lahore 78, wherein it has been held that the Care-taker Government is to perform-its functions with full responsibility until permanent cabinet is formed and is distinct from the Government appointed till other arrangements are made Case of IA. Sharwani and others v.
19. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) is also of no help to the petitioners inasmuch as this judgment rather goes against the petitioners as is clear from the findings recorded at page 1063 of the report which are reproduced as under:-- "From the above-cited case, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if, any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot bye --pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."
20. Order passed in writ petition by a learned Single Judge of this Court in re: 'Capt. (Recd.) Abdul Qayyum v. Province of Punjab, etc.' (W.P. No.9638 of 1993) is not a final order. Writ Petition has not even been admitted to regular hearing hence is of no help to petitioners referred to above.
5. It becomes crystal clear from the abovementioned statement of law that the petitioners who are civil servants have no vested enforceable right in exercise of writ jurisdiction of this Court and at any rate the only remedy available to them for redress of their grievance, if any, is before the Punjab Service drib al, which is a Tribunal of exclusive jurisdiction and not the High Court. As regards the argents of the learned counsel for the petitioners to the effect that the Care-taker Government has no jurisdiction to pass the impugned orders of transfer, as I have held that the transfer orders in question are not liable to be challenged before this Court, I need not dilate on this question in detail but suffice it to say that to allege that the Care-taker Government has no jurisdiction to pass orders of transfer of its employees is too bald a statement and the argument on the face of it appears to be self --contradictory and fallacious. The Care-taker Government is as good a Government as any other Government is and has to perform functions in accordance with the Constitution of Islamic Republic of Pakistan, as well as the laws of the country till the new- elected Government takes over. Refer case of "Khawaja Ahmad Tariq Rahim" supra. The impugned orders which have been passed by the Care-taker Government regulating the services of its own employees for the purpose of achievement of sacred object of holding of free and fair general elections, which is the basic mandate and priority of the Care--taker Government, cannot be said to have been passed without a lawful authority.
21. In view of the above all the writ petitions are dismissed in limine.