' ZIA MAHMOOD MIRZA, J.---These two appeals by leave of this Court are directed against an order of the Punjab Service Tribunal dated 18-5-1994 whereby operation of the order of transfer dated 17- 8-1993 impugned before the Tribunal was suspended till the final disposal of the appeal. As both the appeals seek to call in question the same order giving rise to common questions of law and facts, they are being disposed of together by this single judgment.
2. Facts relevant for the disposal of these appeals, briefly stated, are that Syed Imran Raza Zaidi, appellant in C.A. No, 742 of 1994 and Shamshad Hussain Butt respondent No, 3, both Superintending Engineers in Public Health Engineering Department were respectively posted in Lahore Circle and Circle-I, Gujranwala. By order dated 17-8-1993, issued by Secretary, H.P. And E.P. Department, Government of Punjab, fifteen officers of the rank of Superintending Engineer including the appellant and respondent No, 3 were transferred and posted at different places/stations.
Respondent No, 3 was transferred from Gujranwala and posted as Managing Director, WASA, Rawalpindi Development Authority,, on deputation and in his place, the appellant was posted as Superintending Engineer, P.H.E. Circle-I, Gujranwala. The appellant is stated to have assumed the charge of his new posting at Gujranwala on 19-8-1993 and the respondent, too, took over as Managing director, WASA, Rawalpindi Development Authority, on 23-8-1993. Case of the respondent is that after he took over the charge of the post of M.D., WASA, he found that no such post was sanctioned with the result that he was not paid his salary and travelling allowance etc. He, therefore, made a representation to the Governor of the Punjab on 14-10-1993 against his transfer from Gujranwala and posting as M.D., WASA, Rawalpindi Development Authority. Getting no response to his representation, the respondent preferred an appeal before the Punjab Service Tribunal against the order of his transfer contending therein that the deputation could not be forced on a civil servant and he was never asked to give his comment for his deputation to WASA, as its Managing Director; that he was transferred from Gujranwala after only one year and two months of his posting there when he had yet to complete his normal three years' tenure in Gujranwala and that the post of M.D., WASA, R.D.A. Against which he was transferred had not been sanctioned and, therefore, he was not paid salary and travelling allowance etc. Ever since his posting as Managing Director.
3. It appears that while the respondent's appeal was pending before the 'Service Tribunal, the Chief Minister had issued two directives, one on 1-2-1994 and the other on 27-2-1994 for transferring the respondent back to Gujranwala. In view of these directives, the respondent withdrew his appeal on 1-3-1994 reserving his right to get it revived if the directives of the Chief Minister were not given effect to. His appeal was accordingly disposed of in the said terms by the Service Tribunal on 1-3- 1994 with the observation that it is expected of the respondent/Secretary, H.P. And E.P. To implement the orders of the Chief Minister with immediate effect. Pursuant to this observation, it appears, the Secretary, H.P. & E.P. Department issued an order dated 2-3-1994 whereby respondent No, 3 was repatriated to his parent department and posted as Superintending Engineer, P.H.E.
Circle-I, Gujranwala while the appellant was directed to report to the Secretary, H.P. And E.P. For further posting. The appellant challenged this order in Lahore High Court in Writ Petition No,2668 of 1994 which petition, it is stated, was admitted to regular hearing on 6-3-1994 and operation of the order dated 2-3-1994 impugned therein was suspended with the result that the appellant continued to perform his duties at Gujranwala. He, however, withdrew the writ petition on 26-4-1994 as he was allegedly given to understand by the authorities that if he withdrew the writ petition, order dated 2-3-1994 would be cancelled. The order dated 2-3-1994, it is stated, was cancelled on 27-4-1994 and formal cancellation order was passed on 3-5-1994. Respondent No, 3 thereafter approached the Service Tribunal on 10-5-1994 with a Miscellaneous application seeking revival/restoration of his appeal which was revived and admitted to regular hearing by order dated 11-5-1994. Notice in the stay matter (respondent's application for suspending the operation of the impugned transfer order) was also issued on that date to the present appellant for 16-5- 1994. The appellant resisted the stay application. The learned Tribunal, however, by order dated 18- 5-1994 suspended the operation of the impugned order of transfer dated 17-8-1993 mainly on the ground that the post of Managing Director, WASA,. Rawalpindi, against which the respondent was transferred was not available as it was not created or formally sanctioned or provided in the Budget and the respondent complained that he was not paid the salary for the last 8/9 months because of non-existence of the post of Managing Director, WASA, where he was sent on transfer.
4. The stay order issued by the Service Tribunal was assailed in this Court in two separate petitions, one filed by Syed Imran Raza Zaidi and the other by the Government of Punjab. Petition filed by the Provincial Government was barred by ten days. Leave was, however, granted in both the petitions to consider the "question whether the Service Tribunal is possessed of the power to make an order in the nature of temporary injunction--mandatory or prohibitory---during the pendency of an appeal before it.
5. Learned counsel for respondent No, 3 raised a preliminary objection that the appeal (C.A.
743/94) filed by the Government of Punjab was barred by time and although leave was granted in this case together with the connected matter, no order was passed condoning the delay. The learned counsel vehemently contended that no good cause having been shown by the appellant for the delay in filing the leave petition, the appeal merited dismissal on the ground of limitation.
We have gone through the application moved by the appellant seeking the delay to be condoned and have not been impressed by the explanation given therein. Erroneous view of the departmental authorities that the remedy of review was available and they were contemplating to file a review petition until they were informed by the District Attorney that review before the Service Tribunal was not competent does not, in our view, constitute a valid ground for condoning the delay. However, since the order of the Service Tribunal impugned in this appeal also forms the subject-matter of the connected Appeal (C.A. 742/94) which undoubtedly was within time and the leave has been granted in both the cases to consider an identical question coupled with the fact that the respondent did not press the objection now being raised, at the time of grant of leave although he was duly represented by a counsel who was very much- present in Court, we do not find it fit and proper to dismiss this appeal on the ground of limitation. Needless to observe that in similar situations, the delay has been condoned by this Court. Refer PLD 1969 SC 449. We, therefore, condone the delay in this appeal in the interest of justice.
6. Learned counsel appearing for the appellant in C.A. 742/94 did not seriously contest the proposition that Service Tribunal has the jurisdiction/ power to pass an order granting or refusing the interim relief/temporary injunction during the pendency of an appeal before it but took strong exception to the passing of the impugned order by the Service Tribunal in the instant case. Learned counsel assailed the validity of the impugned order of the Service Tribunal on a number of grounds.
His first contention was that there was no competently filed appeal pending before the Service Tribunal when it passed the impugned to Precise argument of the learned counsel was that the appeal of respondent No, 3 having been disposed of on his statement on 1-3-1994, the same could not be revived/restored on a Miscellaneous application filed by the respondent. According to the learned counsel, there was no provision in the Punjab Service Tribunals Act or the Rules framed thereunder permitting revival/restoration of the appeal nor did the Service Tribunal have any power of review. Reliance for this submission was placed on a judgment of this Court in "S.A. Rizvi v.
Pakistan Atomic Energy Commission and another" (1986 SCM R 965) wherein it was held that the Service Tribunal had no power to review its order or to hear the appeal de novo.
' It was next contended by the learned counsel for the appellant that the impugned order was passed against the weight of authority and in total disregard of the settled principles governing the grant and refusal of temporary injunctions/orders particularly in service matter. Learned counsel submitted that it is trite law that a party seeking an interim injunction must show that he has a prima facie good case; the balance of convenience lies in favors of grant of injunction and that he shall suffer irreparable loss and injury in the event of injunction being refused. Learned counsel referred to the cases of Muhammad Umar Beg v. Sultan Mahmood (PLD 1970 SC 139) and Province of West Pakistan v. Asghar Khan (1971 SCM R 569) and submitted that in both these cases, these principles were reiterated and it was held that issuance of temporary injunction to Government Departments in respect of service matters is bound to disturb their working and they should not ordinarily be issued unless there are compelling reasons to do so because balance of convenience would not lie in disturbing their administrative arrangements and there was also no question of irreparable injury being caused to the plaintiff who could be monetarily compensated if he ultimately succeeds. It was submitted by the learned counsel with reference to section 9 of the Punjab Civil Servants Act that the respondent being a civil servant was 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 Corporation or a body set up and established by any such Government and he could not legitimately object to his transfer and posting as Managing Director, WASA, R.D.A. In support of this proposition, learned counsel also cited
(1) Allah Rakha and another v. Government of the Punjab and others (1980 PLC (C.S.) 397), (2) Afzal Ahmad Hydari v. Secretary, Defense Production Division, Ministry of Defense, Rawalpindi and 3 others (1991 SCM R 477) 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 SCM R 1843) and a judgment from Indian jurisdiction reported in AIR 1986 SC 1955. Proceeding on this premise, learned counsel contended that no prima facie case was made out in favors of respondent No, 3 balance of convenience also lay in favors of not upsetting the administrative arrangements and the respondent was also not likely to suffer any irreparable loss or injury as non-payment of salary for the post of Managing Director, WASA, R.D.A. Could well be quantified in terms of money.
Grievance made by the learned counsel was that when issuing the impugned stay order which evidently interfered with the administrative arrangements, the learned Service Tribunal completely ignored the afore-noted principles laid down by the superior Courts. Yet another contention raised by the learned counsel was that the order of transfer impugned in the appeal before the Service Tribunal had been acted upon long before its operation was suspended by the impugned order and it was not available to the learned Service Tribunal to have passed the impugned order which had the effect of restoring status quo ante. According to the learned counsel, by virtue of the impugned order, the learned Tribunal has granted full relief to respondent No, 3 which could only be granted after fully adjudicating the controversy raised in the appeal.
10. Learned counsel appearing for the Government of Punjab adopted the arguments advanced by the learned counsel for the appellant in C.A. 742/94 and further added that the main consideration which prevailed with the Service 'Tribunal for suspending the operation of the impugned was that the post of Managing Director, WASA was not formally sanctioned and respondent No, 3 was not being paid his salary. According to the learned counsel, the grievance of the respondent on account of non-payment of salary could well be rectified and was in fact rectified by adjusting him against the post of Chief Engineer, R.D.A., Rawalpindi for the period during which he remained posted as Managing Director, WASA, for the purpose of drawal of his pay and allowances.
11. Learned counsel appearing for respondent No, 3defended the impugned order by reiterating the grievance that the post of Managing Director, WASA, to which the respondent was transferred did not exist as it was not formally sanctioned with the result that the respondent was not paid his salary during the period of his posting. Learned counsel referred to certain Summaries and Notes of Departmental Authorities to highlight this point and urged that the terms and conditions of service of the respondent were adversely affected as a result of the impugned transfer. Learned counsel argued that the appeals merited dismissal as they did not involve any substantial question of law of public importance and in any case, the leave having been granted to consider whether there is power in the Service Tribunal to make an order in the nature of a temporary injunction, the appellants could not be permitted to assail the validity of the impugned order of the Service Tribunal on merits on the grounds other than that of incompetence of the Tribunal.
12. We first take up the question whether the Service Tribunal has the power to issue temporary injunction, mandatory or prohibitory, during the pendency of an appeal before it. This question can be examined with reference to the provisions of the relevant law as also on the basis of the well- settled principle that the power to grant' interim relief is implicit in the power to grant the main relief, being incidental and ancillary thereto. Service Tribunal in the instant case is established under section 3 of the Punjab Service Tribunals Act and appeal thereto is provided under section 4 while the powers conferred on it are reflected in section 5 which is reproduced hereunder in extenso:-- "Power of Tribunals.---(1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of--
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents; and
(c) Issuing commission for the examination of witnesses and documents.
(3) No court-fee shall be payable for preferring an appeal to, or filing, exhibiting or recording any document in or obtaining any document from a Tribunal."
Under subsection (2) of section 5, Service Tribunal is deemed to be a Civil Court having all the powers which are vested in the Civil Court under C.P.C. Such powers would include the jurisdiction of the Civil Court under Order XXXIX, rules 1 and 2, C.P.C. To grant temporary injunction and that of the appellate Court under Order 41; rule 5, C.P.C. To stay the execution/operation of the decree/order appealed from. These provisions can well be invoked by the Service Tribunal for the purpose of granting temporary injunction/interim relief pending the final disposal of the appeal.
Apart from this, law is fairly well-settled that even in the absence of an express provision for the grant of interim relief, the appellate Court/Tribunal having the power to grant the main relief can also grant the interim relief by suspending wholly or partially, the operation of the order under appeal before it as such a power is reasonably incidental or ancillary to the main appellate jurisdiction. Refer Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975 SC 32). Needless to observe that under section 5(1) 'afore-referred, the Service Tribunal on an appeal filed before it can set aside, vary or modify the order appealed against, of course, after full and final hearing of the appeal. That being so, the Tribunal can very well grant the interim relief during the pendency of the appeal on the basis of aforementioned principle. Thus, viewed from whatever angle, the Service Tribunal has the power to grant interim relief/temporary injunction during the pendency of the C appeal.
13. The objection raised on behalf of the appellants as noted hereinabove, however, was that in the instant case, the learned Punjab Service Tribunal passed the impugned order without considering that transfer was an ordinary incident of service and under section 9 of the Punjab Civil Servants Act, the respondent could be transferred to work as Managing Director, WASA, R.D.A., a body set up by the Government. As regards the objection that the post to which the respondent was transferred was not formally sanctioned and he was not being paid the salary, it was pointed out on behalf of the appellants that taking cognizance of this position, Secretary, Housing, Physical and Environmental Planning Department proposed on 22-1-1994 to amend the earlier order and to post the respondent as Chief Engineer, in his own pay and scale, instead of Managing Director, WASA, R.D.A. But this proposal was turned down by the Minister and the respondent in the meantime managed to obtain directives from the Chief Minister for his posting back in Gujranwala. We do not wish to go into this question as it is a matter to be decided by the Service Tribunal at the time of final hearing of the appeal. We also refrain from expressing any opinion on the question whether the respondent's appeal could be revived/restored after it was disposed of in terms of his statement. Appellants, if so advised, can raise this objection before the Service Tribunal. We, however, find substance in the grievance made by, the appellants that when passing the impugned order, the learned Tribunal did not examine the case of the respondent in the light of the settled principles governing the grant and refusal of temporary injunctions particularly in service matters highlighted by this Court in the aforereferrecl cases of Muhammad Umar Beg and Asghar Khan. We are of the considered view that by reason of the provisions of section 9 of the Civil Servants Act, a civil servant is liable to be transferred from one place to another and to any post' specified in the said provision subject, of course, to the condition that the terms and conditions of his service are not varied to his disadvantage and he cannot ordinarily raise any legal objection to such a transfer. Assuming, however, that the respondent had Some legitimate grievance and he could be said to have a prima facie good case for the purpose of interim relief, he did not satisfy other two considerations. He would not have suffered any irreparable loss if the operation of the transfer order had not been suspended because in case of acceptance of his appeal, he would be restored to his parent department and paid the arrears of his salary. Even the balance of convenience was not in his favors which in fact lay in favors of the Government-appellant in view of clause (2) of section 56 which prohibits the grant of an injunction which interferes with public duties of any department of the Central or the Provincial Government. The learned Tribunal quite evidently failed even to advert to these vital factors much less to consider them when making the impugned order. Yet another important factor which has remained completely unnoticed by the learned Tribunal is that the transfer order sought to be suspended by it had been implemented and acted upon by both the parties, the appellant and the respondent, soon after it was passed almost nine months before and thus the impugned order would in fact result in restoring status quo ante upsetting administrative arrangements existing for the last about 9 months. For all these reasons, we are constrained to hold that the impugned order has been passed by the learned Service Tribunal in utter disregard of the well-established legal principles and without proper application of mind to the relevant-factors. It cannot, therefore, be sustained and has to be set aside.
14. Upshot of the above discussion is that both the appeals are allowed and the impugned order of the Punjab Service Tribunal suspending the operation of the transfer order is set aside. No order as to costs.