' Briefly stated the facts of the case are that the petitioner, both doctors and husband and wife, were transferred to Tall, vide Order No. 11243-53/EL, dated 5-5-1994 (Not appended with the writ petition) District Kohat and took over the charge of their posts on 7-5-1994.
2. The petitioners, posting order was however cancelled vide Office Order No.13593-604/EL, dated 2-6-1994. Later, on 12-7-1994, the said cancellation order was recalled and the petitioners were allowed to continue to serve at Tall. Again, on 12-7-1995, the petitioners were transferred vide Order No.4735- 37/PF from Civil Hospital, Tall to Miran Shah. Within 7 days, the order in question, was modified vide Order No.16543-51/EL, dater 19-7-1995 and the petitioners stayed at Civil Hospital, Tall.
3. Finally, the impugned order, vide which both the petitioners (husband and wife) were transferred to the Rural Health Centre, Ahmad Abad, District Karak was issued on 12-6-1996 vide Order No.18731-38/EL. The petitioners have challenged the vires of this order, in the main, on the ground that the Chief Minister, N.-W.F.P. Had issued Letter No.SOI (S&GAD) 1-1/95 on 14-5-1996 whereby a direction has been issued to all the Departments that the transfers of officers in BPS-17 and BPS-18, before the expiry of their normal tenure, shall only be made after his approval. According to the petitioners the directions of the Chief Minister have been totally ignored brushed aside by respondents Nos.1 to 4 illegally, hence this petition.
4. The writ petition, for the first time, came up for hearing before a Division Bench of this Court on 8- 7-1996. Respondents Nos.1 to 3 were directed to submit their comments within a period of one month and the impugned order dated 12-6-1996 was suspended till the receipt of the comments.
The said order is reproduced as under:-- "C.M. No. 818/96.
' We have gone through the various orders passed by the respondents with the assistance of the learned counsel for the petitioners and in two years' time there are seven orders which have been issued by respondent No.3 and most of the orders have been issued on the instruction of the Minister for Health. The petitioners have been transferred from Tall to other places and then subsequently the orders have been cancelled.
' In view of the above, the final posting order dated 12-5-1996 is suspended till the receipt of the comments."
5. Director-General, Health Services, N.-W.F.P., Peshawar (respondent No.3) filed his comments on 21-8-1996 whereas Secretary Health, Government of N.-W.F.P., Peshawar (respondent No.1) filed his comments on 18-9-1996. The allegation contained in the writ petition were totally denied and it was averred that the petition is misconceived and is therefore liable to be dismissed. Para. 7 of the comments submitted by respondent No.1 is reproduced here for ready reference:-- "7. Not correct. The petitioner was in BPS-17 and was working against BPS-18 post of Senior Medical Officer, one Dr. Fida Muhammad who was a Senior Medical Officer working on BPS-18 post, was transferred and posted to Civil Hospital, Tall against BPS-18 post. So to adjust the petitioner, he was transferred and posted to Rural Health Centre, Ahmad Abad, Karak against his original post i.e. BPS-17 alongwith his wife."
5-A. The Secretary Health (respondent No.1) also pointed out that since the order had been issued with the approval of the competent authority and thus does not suffer from any illegality. It was submitted that the writ petition was misconceived, without any substance and therefore, liable to be dismissed with costs.
6. Since some factual issues were raised by the Secretary Health (respondent No.1) in his comments i.e. That the petitioner was a Grade-17 Officer and was working against a Grade-18 post at Tall and that the impugned order was issued with the approval of the competent authority etc., therefore, the petitioners were directed on 23-9-1996 to file their rejoinders within 3 days.
Unfortunately the petitioners failed to file the same for reasons best known to them.
7. Mr. Fida Gul, Advocate, assisted by Mr. Mazullah Khan Barkandi, Advocate, learned counsel for the petitioners, Mr. Saifur Rehman Kiyani, learned Advocate-General for respondents Nos. 1 to 4 and Mr. Saeed Baig, Advocate learned counsel for respondent No.5 present and heard. We have also gone through the record of the case with some degree of care.
8. At the outset, it may be stated, that in the exercise of its discretionary writ jurisdiction, the High Court is not supposed to exercise its powers in aid of an injustice. (PLD 1982 SC 413).
9. It would therefore follow that before a person is permitted to invoke the discretionary Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, he has to show that the impugned order, sought to be set aside, had occasioned some injustice to him. On the other hand, if the order impugned has not caused any injustice to the petitioner then in that case the extraordinary jurisdiction shall not be allowed to be invoked.
10. Resultantly the High Court shall interfere only when the concerned authority, while passing the order has either acted with malice, illegally or without lawful authority (PLD 1985 SC 131). Similarly the High Court is not to exercise its Constitutional jurisdiction if an equally efficacious remedy, by way of representation appeal, is available to the aggrieved person and he has failed to avail the same (PLD 1986 SC 192/PLD 1991 SC 102).
11. After taking into consideration the dictums as laid down by the Hon'ble Supreme Court of Pakistan we would not deal with the facts of the present case.
' Admittedly both the petitioners (husband and wife) have already remained posted at Tall for a period of about two and a half years, therefore, their transfer to Karak, in our view, has caused no injustice to them especially when both of them have been posted to the same place i.e. Karak. In fact petitioner No.1, a Grade-17 Officer, has been allowed to work against the post of Grade-18 Officer for a considerably long period (2-1/2 years). It appears to us that he has now taken a strong exception, without any rhyme or reason to his posting to his own grade i.e. BPS-17. The learned counsel for the petitioners vehemently argued that after the issuance of the directions by the Chief Minister the petitioners could be transferred only under his orders. The Secretary Health (respondent No.1), in his written comments, has categorically stated that the impugned order was issued with the approval of the competent authority. It was for this reason that the petitioners were directed to file a rejoinder. However, they chose not to do so again for reasons best known to them.
It shall, therefore, be presumed that they could not rebut the contention of the Health Secretary (respondent No.1).
12. Even otherwise if the petitioners are of the view that the orders of the Chief Minister have been flouted, with contempt, by respondents Nos. 1 to 4 then in that case too they should have filed a representation, in this respect, before the Chief Minister for the redress of their grievance. However a perusal of the file would show that there is nothing on the file to suggest that any attempt whatsoever was made in this regard by the petitioners.
13. We are constrained to remark that the petitioners have not come to us with. Clean hands. They have not placed the copy of the order vide which they were transferred posted to Tall in the first instance. The petitioners, in para. 1 of their petition stated:-- "That the petitioners are medical Doctors serving as Medical Officers at Civil Hospital Tall, District Kohat. Copy of the order is Annexure ' A'."
14. For the sake of convenience Annexure ' A' is reproduced as under:-- "No. 2767/PF, dated Kohat the 19-5-1994.
' From ' The District Health Officer, Kohat.
' To ' The Divisional Director, Health Services, Kohat Division, Kohat.
' Subject: POSTING OF MEDICAL OFFICER/WOMAN OFFICER. Sir, ' Reference the Director-General, Health Services, N.-W.F.P., Peshawar Office Order No.11243-53/E-L, dated 5-5-1994.
' I have the honour to state that Dr. Aurangzeb, Medical Officer submitted his arrival report at Civil Hospital, Tall on 7-5-1994, afternoon, and Dr. Naheed Aurangzeb resumed her duty at Civil Hospital, Tall on 7-5-1994 afternoon.
' Their charge report in triplicate are sent herewith for favour of further necessary action please.
(Sd.)
District Health Officer, Kohat.
' No.2768-69.
' Copy alongwith a copy of charge report forwarded to the District Account Officer, Kohat for information and necessary action.
2. Medical Officer, Incharge Civil Hospital, Tall for information.
(Sd.)
District Health Officer, Kohat."
15. A perusal of Annexure 'A' would reveal that this is not the transfer order by which the petitioner and his wife were transferred and posted to Civil Hospital, Tall. In fact Annexure 'A' is a letter addressed to the Divisional Director, Health Services, Kohat Division, Kohat by the District Health Officer, Kohat informing him that Dr. Aurangzeb, Medical Officer (petitioner No.1) submitted his arrival report at Civil Hospital, Tall on 7-5-1994 afternoon and Dr. Naheed Aurangzeb (petitioner No.2) resumed her duty at Civil Hospital, Tall on 7-5-1994 afternoon. No explanation is forthcoming as to Why this important document has been withheld and not appended with this writ petition.
16. In the circumstances, we are of the view that:--
(i) No injustice has been caused to the petitioners who have remained posted at Tall for a period of about 2-1/2 years.
(ii) No inconvenience has been caused to the petitioners (husband and wife) because both of them have been posted to the same Rural Health Centre Ahmad Abad, District Karak and would be working there together.
(iii) The petitioners have failed to submit a representation to the Chief Minister, N.-W.F.P. For the redress of their grievance.
(iv) The petitioners have not come to the Court with clean hand by withholding the original transfer order which could show that one of them (the husband) was posted against BPS-18 and
(v) the contesting respondents have not exercised their jurisdiction illegally and that their approach is neither unlawful nor is tainted with malice or patent error, therefore, the impugned order is neither void nor without lawful authority.
17. It was for this reason that the Hon'ble Supreme Court of Pakistan in case Noor Muhammad v.
Sarwar Khan and 2 others (PLD 1985 SC 131) has observed as under:-- "6. Before parting with the case we may observe that there is an increasing tendency to file Constitutional petitions even when the Courts whose orders are challenged has the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court (in contradistinction to a persona designata, has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal. Refer Badrul Hague Khan v. The Election Tribunal, Dacca and others PLD 1963 SC 704, Muhammad Hussain Munir and others v. Sikander and others PLD 1974 SC 139 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522.
' We are for the view that the tendency to file such Constitutional petition tends to clog the superior Courts with frivolous litigation and causes unnecessary delays in the disposal of the other cases and this tendency should therefore, be curbed with a strong hand."
18. This writ petition is frivolous, without any substance and is accordingly dismissed. The order of this Court dated 8-7-1996 vide 'Which the operation of the impugned transfer order dated 12-6- 1996 was suspended is hereby recalled.