' MUNIR A. SHEIKH, J.---This common judgment will also dispose of the following writ petitions:--
(1) Writ Petition No, 7433 of 1991; (2) Writ Petition No, 5969 of 1991; (3) Writ Petition No, 1168 of 1991; (4)
Writ Petition No, 8243 of .1994; (5) Writ Petition No, 2542 of 1994 (6) Writ Petition No,2617 of 1994; (7)
Writ Petition No, 1813 of 1994; (8) Writ Petition No,2645 of 1994; (9) Writ Petition No, 9662 of 1994; (10)
Writ Petition No,2984 of '1994; (11) Writ Petition No, 2523 of 1994; (12) Writ Petition No,5449 of 1994; (13)
Writ Petition No, 4660 of 1994; (14) Writ Petition No,4075 of 1993; (15) Writ Petition No, 54 of 1993; (16)
Writ Petition No, 2245 of 1994; (17) Writ Petition No,1767 of 1994; (18) Writ. Petition No, 3176 of 1994; (19)
Writ Petition No,4170 of 1994; (20) Writ Petition No, 2927 of 1994; (21) Writ Petition No,6833 of 1992; (22)
Writ Petition No, 11004 of 1992; (23) Writ Petition No, 9227 of 1992; (24) Writ Petition No, 9779 of 1992;
(25) Writ Petition No,9404 of 1992; (26) Writ Petition No, 5222 of 1993; (27) Writ Petition No,7291 of 1994; (28) Writ Petition No,17609 of 1993; (29) Writ Petition No, 7588 of 1994; (30) Writ Petition No,13730 of 1994; (31) Writ Petition No, 14066 of 1994; (32) Writ Petition No, 11193 of 1994; (33) Writ Petition No, 14071 of 1994; (34) Writ Petition No, 8488 of 1994; (35) Writ Petition No,10094 of 1994; (36)
Writ Petition No,11816 of 1994; (37) Writ Petition No,9280 of 1994; (38) Writ Petition No, 17656 of 1993;
(39) Writ Petition No, 3149 of 1994; (40) Writ Petition No, 583 of 1991; (41) Writ Petition No, 8779 of .1994; (42) Writ Petition No, 9921 of 1994; (43) Writ Petition No, 11359 of 1994; (44) Writ Petition No,12800 of 1994; (45) Writ Petition No, 2911 of 1994; (46) Writ Petition No,1758 of 1993; (47) Writ Petition No, 132 of 1994; (48) Writ Petition No,5545 of 1994; (49) Writ Petition No,6572 of 1991; (50) Writ Petition No, 2237 of 1994; (51) Writ Petition No, 7514 of 1994; (52) Writ Petition No, 7515 of 1994; (53)
Writ Petition No,3543 of 1994; (54) Writ Petition No, 4883 of 1993; (55) Writ Petition No,7651 of 1991 and
(56) Writ Petition No, 1958 of 1995 as the questions of law raised in all of them are identical.
2. The petitioners are admittedly civil servants of the Province of the Punjab. They have questioned the legality of orders of their transfers. The question which arises for determination in all these petitions is as to whether Article 212 of the Constitution operates in bar. Of jurisdiction of this Court under Article 199 of the Constitution in such matters.
3. Article 212(1) of the Constitution, provides that notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters". Sub-Article (2) of this Article provides that "notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends " Under Article 199 of the Constitution this Court has to exercise jurisdiction subject to the Constitution therefore, Article 212 of the Constitution has the effect of excluding the jurisdiction of this Court under the former Article in such matters provided by it.
4. Pursuant to. Article 212(1) of the Constitution the Provincial Government promulgated Punjab Administrative Tribunals Ordinance, 1974 (Ordinance V of 1974) under which a Service Tribunal was established, which provided that an appeal shall lie before the Service Tribunal against original or appellate final order of the departmental authority in respect of terms and conditions of service of a civil servant. This was followed by the Punjab Administrative Tribunals Act, 1974 (Act IX of 1974) through which the earlier Ordinance was repealed. This Act was amended through Punjab Act XXVI of 1975 as a consequence of which instead of Government the Governor was empowered to establish Administrative Tribunals through a Notification in the Official Gazette. The nomenclature of the Statute was also changed to the Punjab Service Tribunals Act, 1974, with the Establishment of Administrative Tribunals to adjudicate upon appeal against the order of the departmental authorities in relation to terms and conditions of a civil servant bar under Article 212 is fully attracted provided the matter relating to transfer of a civil servant is held to be a matter relating to terms and conditions of his service.
5. The Punjab Civil Servants Act, 1974 (Act VIII of 1974) is the law which provide, regulate and govern all matters regarding rights and privileges of civil servant including matters relating to terms and conditions of his service. Chapter II in which sections 3 to 21 fall provides the terms and conditions of service of a civil servant. Section 9 deals with the postings and transfers of a civil servant which ordains that 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 etc. In order to regulate the postings and transfers apart from the statutory rules, departmental instructions and guidelines have also been framed and issued for observance by the Departmental Authorities while passing orders in such matter's, which have the force of the law, the violation or defiance of which would provide a cause or grievance to a civil servant to call in question the same before the competent forum which is the Service Tribunal, being a matter relating to his terms and conditions of service.
6. Learned counsel for the petitioners when questioned as to how could they contend, in view of these express provisions of the Civil Servants Act, 1974 read with the Punjab Service Tribunals Act, 1974, that the jurisdiction of this Court under Article 199 of the Constitution by virtue of Article 212 is not barred, submitted that transfer of a civil servant is merely an incidence of service and not in stricto senso a matter relating to substantive terms and conditions of his service, therefore, appeal does not lie before the Service Tribunal in such matters and jurisdiction under Article 199 of the Constitution- could be invoked by an aggrieved civil servant if in respect of his transfer statutory rules and departmental instructions are violated.
7. The argument no doubt appears to be ingenious but not tenable on close scrutiny of the Punjab Civil Servants Act, 1974 and the Punjab Service Tribunals Act, 1974. Section 9 of the Punjab Civil Servants Act was enacted in the Chapter providing terms and conditions of a civil servant not merely for the sake of making a declaration that posting and transfer of a civil servant is an incidence of service. Had it been considered to be merely incidence of service no such declaration by enacting a provision in the law was required to be made.
8. The argument raised by learned counsel for the petitioners that it is merely an incidence of service cannot be accepted unless it is held that section 9, Punjab Civil Servants Act is redundant.
The redundancy to a provision of law according to well-established principles of interpretation of statutes cannot be attributed.
9. The view that posting and transfer of a civil servant is a matter relating to his terms and conditions of service finds support from judgment of the Supreme Court in the case of Musharaf Ali v. The Province of Punjab and others (1988 SCM R 991). In this reported case a civil servant challenged the order of his transfer through Constitutional petition before the High Court under Article. 199 of the Constitution. The writ petition was dismissed by High Court on the ground that his remedy was to approach the Service Tribunal. Civil Petition for Special Leave to Appeal was dismissed and the view taken by this Court was upheld.
10. Recently in the case of Zahid Akhtar, Assistant Engineer v. Government of the Punjab PLD 1995 SC 530 the Supreme Court of Pakistan reiterated the same view. It may be pertinently mentioned here that in this case a civil servant questioned the legality of his transfer order before this Court through Constitutional petition on the ground that the same was totally mala fide and without lawful authority having been issued under an unlawful command of an M..P.A. Who had no authority to interfere in the matter. This Court through judgment dated 12-2-1995 dismissed the' writ petition by holding that he should seek remedy by filing an appeal before the Service Tribunal as the matter related to terms and conditions of his service and jurisdiction of this Court was barred under Article 212(2) of the Constitution. This order was brought under challenge before the Supreme Court through Civil Petition No,175-L of 1995. A contention was raised before the Supreme Court that the transfer of a civil servant did not fall within the scope of terms and conditions of service as such bar contained in Article 212(2) of the Constitution was not attracted. In the alternative it was argued that the order of transfer being malicious having been passed by an authority not competent under the law to do so and for objects wholly alien to the Punjab Civil Servants Act as such was coram non judice, therefore, could be challenged under Article 199 before the High Court. The Supreme Court after elaborate scrutiny of the rules and instructions framed and issued by the Provincial Government for regulating the transfers of civil servants and making observation that the same should be strictly observed in letter and spirit by the Departniental Authority while transferring a civil servant dismissed the petition by holding that the same was not maintainable. The judgment under appeal passed by this Court was thus maintained.
11. Syed Jamshed Ali Shah, Advocate, learned counsel for the petitioner maintained that according to the rules no remedy to a civil servant against order of his transfer is immediately available as he is required to make a departmental representation or file appeal as the case may be before the higher departmental authorities and wait for 90 days before approaching the Service Tribunal for redress of the wrong, therefore, it should be construed to be a case where in fact no remedy in such matters under the law is available to attract bar under Article 212 of the Constitution. This aspect of the case has been thoroughly examined and dealt with in the case of Abdul Bari v.
Government of Pakistan and 2 others (PLD 1981 Kar. 290).
12. After considering the rule laid down in this case and subjecting the argument to rigorous test on the touch stone of Article 212(2) of the Constitution, we find that the same is wholly untenable. Bar under Article 212(2) of the Constitution is operative merely on the establishment of an Administrative Court or Tribunal under sub-Article (1) in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. If any law requires the aggrieved person to fulfil certain formalities before approaching such Tribunals in those matters which are within its exclusive jurisdiction, it cannot be argued that the bar under the said Article is not attracted, for ultimately the matter is within the exclusive jurisdiction of such Administrative Courts or such Tribunals.
13. Since Syed Jamshed Ali Shah, Advocate, learned counsel for the petitioner expressed grave concern as regards provision of law barring an aggrieved civil servant in such matters to approach the Administrative Court or Tribunals of exclusive jurisdiction immediately on the passing of the order by the Departmental Authority to seek relief therefore, we have examined the relevant rules in order to ascertain whether in fact any such bar to approach the Administrative- Court or Tribunal exists in respect of orders passed by, the Departmental Authority regarding the transfer of a civil servant. Under section 4 of the Punjab Administrative Tribunal Mt, 1974 an appeal lies against the final order of the departmental authority which may be original or appellate. Under the rules governing the matters relating to Departmental Appeals and Representations, against specified orders appeal lies to the higher Departmental Authority whereas against the others the aggrieved civil servant may file representation. Those original orders of the Departmental Authorities against which no appeal has been provided, have been termed as the original final orders whereas in those cases where appeal lies, the order passed in appeal is the final order. The order of the Departmental Authority of the transfer of a civil servant is such against which under the said rules no departmental appeal lies before the higher authority therefore, the said order once passed by the Departmental Authorities is the original final order against which the aggrieved civil servant if he wants to get relief in the form of interim order for suspension of the same may immediately approach the Administrative Court or Tribunal without exercising the privilege of filing a representation as under the law the filing of the same or the decision made thereon does not have the effect of destroying the finality of the order passed by the Departmental Authority to make it appealable before the Administrative Court or Tribunal. In our view, therefore, the aggrieved civil servant in the case of an order of the nature against which no departmental appeal lies may file appeal before the Administrative Court or Tribunal directly and in other cases where the appeal lies the aggrieved civil servant may apply to the Departmental Appellate Authority to pass an interim order regarding implementation of the impugned order during the pendency of the appeal which may be considered by the appellate authority on its own merits. This being so, the argument that the aggrieved civil servant was left with no remedy immediately before the Tribunal against an order of transfer has no force.
14. It has been provided in the Punjab Administrative Service Tribunal Act, 1974 that no appeal lies before the Service Tribunal in relation to an order or decision passed by the Departmental Authority as to fitness or otherwise of a civil servant to hold a particular post. With reference to this provision of law learned counsel for the petitioners attempted to argue that transfer of a civil servant from one post to another in the same department or from one post in one department to a post in another department necessarily involves the determination of the quantum of fitness to hold a post therefore, remedy of appeal before the Service Tribunal is not available in such matters and therefore, bar under Article 212 of the Constitution is not attracted. This argument has not impressed us. The fitness of a person to hold a particular post in all the cases is determined of the time of his induction in service. The transfer of a civil servant after induction in service from one post to another whether in the same department or in another department, does not involve the question of determination of fitness to hold a post, which under section 9 of Punjab Civil Servants Act, 1974 is a matter relating to his terms and conditions regarding which appeal lies to the Service Tribunal.
15. Sh. Zia Ullah, Advocate, learned counsel for respondents in one of the writ petitions called our attention to Rule 15 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 which deals with eligibility of a civil servant to be sent on deputation, which provides determination of question of fitness of such civil servant for appointment against another post on deputation whether by way of transfer or otherwise and only in such category of cases appeal before the Service Tribunal is not available and not in the case of transfer of a civil servant in routine'.
16. Learned counsel for the petitioners submitted that Service Tribunals in a number of cases did not interfere in the matters of transfer of a civil servant when appeal was brought before it by holding that under section 9 of the Civil Servants Act, 1974 no civil servant has a right as regards his posting and transfers. In view of the observations made in Zahid Akhtar's case supra; by the Supreme Court in our view a civil servant has a right to challenge the order of transfer on the grounds of mala fide or arbitrary or fanciful exercise of authority under the rules and the instructions issued by the Provincial Government to regulate the exercise of power by the departmental authority in such matters. If it is established before the Service Tribunal that the order passed by the departmental authority lacked bona fides or was otherwise arbitrary, fanciful or capricious, then the same can be struck down irrespective of the fact that civil servant under section 9 of the Act could be posted against any post. It is the right of every civil servant to be dealt with. In respect of terms and conditions of his service including the transfers and posting in accordance with the rules and the instructions and not otherwise. We may, however, be not understood to hold that the right of the civil servant is so absolute that it can under no circumstances be abridged by the competent departmental authority. The rules and the instructions have to be faithfully followed, subject to service discipline and to cater cases of hardship in the exigencies of service. But such an order passed in departure from the rules and the instructions will always be open to scrutiny by the Service Tribunal who can review the same in the objective reality of the circumstances of the particular case.
17. In some of the cases we have noticed that the departmental authority some time is careless and even cruel in the matter of transfer of female civil servants in particular of the teaching staff of educational institutions, such as teachers etc. By transferring them to places at considerable distances from their residences, which has the effect of disturbing their family life and particularly the bringing up of children. This should be discouraged as the same is violative of the Principles of Policy as enshrined in the Constitution which enjoin the State to protect the marriage, family, the mother and the child. The transfer of a female civil servant to far-flung area some times creates problem as regards security of life. In such matters the Service Tribunal certainly has ample jurisdiction to interfere.
18. Before parting with this judgment, we would like to dispose of a legal argument raised by Syed Jamshed Ali Shah, Advocate, learned counsel for the petitioners. He submitted that under Article 212 bar of jurisdiction is attracted only if a Service Tribunal was established under or by an act of the appropriate Legislature which in this case is the Provincial Assembly. He submitted that Administrative Tribunal was originally established under Ordinance V of 1974 and not Act of the Provincial Assembly, therefore, one of the conditions provided by Article 212 of the Constitution in this respect had not been fulfilled. He did not however press this argument any further when his attention was drawn to the definition of the expression "Act of Provincial Assembly" given in Article 260(2) of the Constitution, according to which the said expression also includes an Ordinance promulgated by the Governor.
19. He however, maintained that bar under Article 212 of the Constitution is attracted only if the Administrative Tribunal was established by the Act of Legislature and not by an Executive Act such like Notification issued by the Executive Authority. His precise argument was that under the Punjab Administrative Tribunals Act, 1974 as amended in 1975 the Governor has been empowered to constitute a Service Tribunal by making appointments through Notification of its Chairman and Members, which does not satisfy the criteria provided by Article 212 of the Constitution. The fallacy of this argument lies in erroneous assumption as if Article 212 of the Constitution provides that the Chairman and Members of Service Tribunal should be appointed by the Act itself. From a bare reading of Article 212(1) of the Constitution it is clear that it merely provides that in case the Act of appropriate Legislature for the establishment of an Administrative Courts or Tribunals the bar would be attracted whereas it does not provide for the constitution of the Tribunal i,e, appointment of its Chairman and the Members should also be made by the Act itself. Section 3(1) of the Punjab Administrative Tribunals Act, 1974 provided that there shall be one or more Tribunals each consisting of a Chairman and two Members According to section 3(3) the Government was empowered to appoint Chairman and Members of a Tribunal. Syed Jamshed Ali Shah, Advocate, submitted that in this provision of the Act, as it stood before amendment, it was provided that there shall be one or more Tribunals whereas according to the amendment made in 1975 in section 3 thereof the Governor has been empowered to establish one or more Service Tribunals through Notification therefore, the Tribunals established by the Governor in exercise of this power shall be deemed to have not been established by the Act itself, therefore, requirement of Article 212 of the Constitution regarding establishment of Service Tribunals or Administrative Courts to attract bar of jurisdiction shall be deemed to have not been fulfilled.
20. In our view the objection is merely a technical one and does not deserve serious consideration.
Unamended provision of the Act merely provided that there shall be more than one Tribunals the .Chairman and Members of which shall be appointed by the Government whereas the amendment has not made any departure or substantial change inasmuch as it merely provides that the Governor may establish one or more Tribunals and through Notification appoint their Chairman and Members. The Establishment of the Tribunals even under the unamended Act was also to be made through Notification by an executive Act, therefore, legality of the Tribunals as regards their mode of establishment under the amended Act is not adversely affected. This is apart from the fact that as observed above. Article 212 merely provides that if a law is made providing establishment of a Service Tribunal the bar under Article 212(2) is attracted. The Tribunals whether established under the unamended provisions of the Act or after amendment the same shall be deemed to have been established under the Act, therefore, the argument has no force.
21. For the foregoing reasons, we hold that order of posting and transfer of a civil servant is a matter which relates to terms and conditions of his service, as such jurisdiction of this Court under Article 199 of the Constitution to challenge the legality of such an order is barred under Article 212 of the Constitution. The writ petitions are hereby dismissed with no order as to costs.