The following Constitutional petitions which involve identical question of law will be decided by this common judgment:
(1) Writ Petition No. 2819-S/96.(2) Writ Petition No. 4498-S/96.(3) Writ Petition No. 4449-S/96.(4) Writ Petition No. 4415-S/96. (5) Writ Petition No. 4423-S/96.(6) Writ Petition No. 4195-S/96.(7) Writ Petition No. 4290-S/96.(8) Writ Petition No. 3735-SI96.(9) Writ Petition No. 4138-S/96.(10) Writ Petition No. 3745-S/96.(11) Writ Petition No. 3505-S/96.(12) Writ Petition No. 830-S/96.(13) Writ Petition No. 584- S/96.(14) Writ Petition No. 4719-S/96.(15) Writ Petition No. 4754-S/96.(16) Writ Petition No.4806-S/96.
(17) Writ Petition No. 4810-S/96.(18) Writ Petition No, 707-S/96.(19) Writ Petition No, 728-S/96.(20)
Writ Petition No. 5392-S/96.(21) Writ Petition No. 5357-S/96.(22) Writ Petition No. 5622-S/96.(23) Writ Petition No. 41-S/96.(24) Writ Petition No. 921-S/96.(25) Writ Petition No. 6553-S/95.(26) Writ Petition No. 7525-S/95.(27) Writ Petition No. 441-S/96.(28) Writ Petition No. 7698-S/96.(29) Writ Petition No. 7054-S/96.(30) Writ Petition No. 7072-S/96.(31) Writ Petition No. 6687-S/96.(32) Writ Petition No. 124- S/96.(33) Writ Petition No. 190-S/96.(34) Writ Petition No. 352-S/96.(35) Writ Petition No. 5962-S/96.
(36) Writ Petition No. 6362-S/96.(37) Writ Petition No. 7095-S/96.(38) Writ Petition No. 5761-S/94.(39)
Writ Petition No. 3763-S/96.(40) Writ Petition No. 4875-S/96.(41) Writ Petition No. 5823-S/94.(42) Writ Petition No. 4840-S/96.(43) .Writ Petition No. 5880-S/96.(44) Writ Petition No. 3588-S/96.(45) Writ Petition No. 4509-S/96.(46) Writ Petition No. 4431-S/96.(47) Writ Petition No. 3671-S/96.(48) Writ Petition No. 3740-S/96.(49) Writ Petition No. 3513-S/96.(50) Writ Petition No. 407-S/96.(51) Writ Petition No. 286-S/96.(52) Writ Petition No. 5841-S/94.(53) Writ Petition No. 964-S/90.(54) Writ Petition No. 2580-S/92.(55) Writ Petition No. 4891-S/96:(56) Writ Petition No. 4753-S/96.(57) Writ Petition No. 3978-S/96.(58) Writ Petition No. 3015-S/96. (59) Writ Petition No. 3055-S/96; (60) Writ Petition No. 3365-S/96; (61) Writ Petition No. 3367-S/96; (62) Writ Petition No. 149-S/96; (63) Writ Petition No. 7107-S/96; (64) Writ Petition No. 2967-S/96; (65) Writ Petition No. 2897-S/96; (66) Writ Petition No. 468-S/96; (67) Writ Petition No. 3274-S/96; (68) Writ Petition No. 2782-S/96; (69) Writ Petition No. 6841-S/95; (70) Writ Petition No. 2641-S/96; (71) Writ Petition No. 2356-S/96; (72) Writ Petition No. 1771-S/96; (73) Writ Petition No. 1795-S/95; (74) Writ Petition No. 229.6-S/92; (75) Writ Petition No. 5248-S/96; (76) Writ Petition No. 3000-S/96; (77) Writ Petition No. 2355-S/96; (78) Writ Petition No. 2194-S/96; (79) Write Petition No. 2301-S/96; (80) Writ Petition No. 2184-S/96; (81) Writ Petition No. 1578-S/96; (82) Writ Petition No. 7080-S/96; (83) Writ Petition No. 6852-S/96; (84) Writ Petition No. 6809-S/96; (85) Writ Petition No. 6697-S/96; (86) Writ Petition No. 6705-S/96; (87) Writ Petition No. 6680-S/96; (88) Writ Petition No. 4048-S/94; (89) Writ Petition No. 6639-S/96; (90) Writ Petition No. 6629-S/96; (91) Writ Petition No. 6627-S/96; (92) Writ Petition No. 6380-S/96; (93) Writ Petition No. 6332-S/96; (94) Writ Petition No. 6331-S/96; (95) Writ Petition No. 6171-S/96; (96) Writ Petition No. 4258-S/96; (97) Writ Petition No. 5249-S/96; (98) Writ Petition No. 5644-S/96; (99) Writ Petition No. 4455-S/96; (100) Writ Petition No. 3609-S/96; (101) Writ Petition No. 2691-S/96; (102) Writ Petition No. 1852-S/96; (103) Writ Petition No. 3387-S/96; (104) Writ Petition No. 4625-S/96; (105) Writ Petition No. 369-S/95; (106) Writ Petition No. 176-SI96; (107) Writ Petition No. 179-S/96; (108) Writ 'Petition No. 545-S/96; (109) Writ .Petition No. 604-S/96; (110) Writ Petition No. 5559-S/96; (111) Writ Petition No. 3400-S/96; (112) Writ Petition No. 4225-S/96; (113) Writ Petition No. 4268-S/96; (114) Writ Petition No. 3440-S/96;'(115) Writ Petition No. 1794-S/96; (116) Writ Petition No. 5089-S/96; (117) Writ Petition No. 1577-S/96; (118).Writ Petition No. 6413-S/96; (119) Writ Petition No. 6690-S/96; (120) Writ Petition No. 7223-S/95; (121) Writ Petition No. 5179-S/96; (122) Writ Petition No. 1842-S/96; (123) Writ Petition No. 6667-S/96; (124) Writ Petition-No. 363-S/96; (125) Writ Petition No. 306-S/96; (126) Writ Petition No. 217-S/96; (127) Writ Petition No. 264-S/96; (128) Writ Petition No. 247-S/96; (129) Writ Petition No. 4958-S/96; (130) Writ Petition No. 296-S/93; (131) Writ Petition No. 442-S/94; (132) Writ Petition No. 644-S/96; (133) Writ Petition No. .972-S/94; (134) Writ Petition No. 1032-S/94; (135) Writ Petition No. 4282-S/94; (136) Writ Petition No. 4433=5/94; (137) Writ Petition No. 5490-S/93; (138) Writ Petition No. 2997-S/96; (139) Writ Petition No. 3587-S/96; (140) Writ Petition No. 3465-S/96; (141) Writ Petition No. 578-S/96; (142) Writ Petition No. 4910-S/96; (143) Writ Petition No. 3575-S/96; (144) Writ Petition No. 2780-S/96; (145) Writ Petition No. 3366-S/96; (146) Writ Petition No. 3137-S/96; (147) Writ Petition No. 2348-SI96; (148) Writ Petition No. 3059-S/96; (149) Writ Petition No. 950-S/96; (150) Writ Petition No. 292-S/96; (151) Writ Petition No. 5561-S/96; (152) Writ Petition No. 3619-S/96; (153) Writ Petition No. 4834-S/96; (154) Writ Petition No. 1717-S/96; (155) Writ Petition No. 1876-S/96; (156) Writ Petition No. 113-S/96; (157) Writ Petition No. 3768-S/96; (158) Writ Petition No. 1269-S/96; (159) Writ Petition No. 995-S/96.
2. All the aforementioned writ petitions have been filed by the civil servants serving in various departments of the Punjab Government. The orders impugned in these petitions relate to their transfers and postings. Some of the writ petitions have been admitted to regular hearing and some of them are still at the motion stage. Objection has been taken on behalf of the respondents that this Court under Article 199 of the Constitution has no jurisdiction to interfere in matters of posting and transfer of civil servants, being relatable to the terms and conditions of their service, in view of the bar created by Article 212 of the Constitution. Resultantly, all the writ petitions were directed to be heard together, to decide the question of jurisdiction of this Court.
3. Almost all the writ petitions mentioned above have been filed on the averment that the impugned transfer orders have been passed by the departmental authorities not in their administrative discretion but on the dictation of extra-departmental authorities on extraneous considerations which include political influence of the MPAs/MNAs/Ministers. In a large number of cases transfer orders have been passed in quick succession with the result that the civil servants have been made shuttle-cocks, going from one place to another.
4. Mr. Muhammad Younas Bhatti, Advocate appearing for the petitioner in Writ Petition No. 2819- S/96 has submitted that jurisdiction of this Court to interfere in matters of transfers and postings in the special factual background of these writ petitions is not ousted. Elaborating this point he has argued that when an order of transfer and posting of a civil servant is passed by a departmental authority in the normal course and in the public interest, then the jurisdiction of this Court is not available and such an order can be challenged before the appropriate Service Tribunal alone.
However, according to him, jurisdiction of the High Court under Article 199 can be invoked notwithstanding the ouster clause contained in Article 212 of the Constitution, when transfer orders are without jurisdiction, coram non judice or mala fide. It is submitted that where a departmental authority passes an order without application of his own mind simply on the dictation of extra- departmental authority i.e. MPA/MNA/Minister or any other unconcerned person without determining whether the transfer is in the public interest and is otherwise justifiable on merits, then such an order has to be treated nullity in the eye of law. Only an order passed by a competent departmental authority in the exigencies of service and keeping in view the service interest without being influenced by the desire of any other unconcerned person will be an order with jurisdiction having backing of the law. In support of the above submission learned counsel has placed reliance on the following pronouncements of the Hon'ble Supreme Court:--
(i) Zahid Akhtar v. Government of the Punjab and 2 others (PLD 1995 SC 530).
(ii) Syed Mazhar Hussain Bokhari v. Secretary to the Government of the Punjab (1996 SCMR 59).
(i.e) Akhlaq Ahmed v. Secretary to the Government of the Punjab (C.P.S.L.A. No. 1190-L/96).
(iv) Pir Sabir Shah v. Government of N.-W.F.P. (PLD 1994 SC 738).
5. According to the learned counsel, the true import of these precedents is that where violation of the transfer policy is made in fulfilment of the personal desire of MPA/MNA/Minister to transfer a civil servant from one place to another, then such an order can be subjected to judicial review under Article 199 of the Constitution, because the same cannot be treated to be a valid order passed with jurisdiction.
6. Article 212 of the Constitution which confers exclusive jurisdiction on the appropriate Service Tribunal to decide the questions relating to terms and conditions of service of a civil servant is reproduced below-- '
"(1)Notwithstanding anything hereinbefore contained, the appropriate Legislature tray by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of---
(a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortuous acts of Government,, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) 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 proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends (and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal (other than an appeal pending before the Supreme Court), shall abate on such establishment): Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act or a Provincial Assembly made in the form of a resolution, Majlis-e- Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance grants leave to appeal."
7. It is now well settled that disputes relating to the transfers and postings of civil servants are relatable to the terms and conditions of their service and the same have to be decided by the appropriate Service Tribunal. The latest pronouncement of a Full Bench of the honourable Supreme Court on this point made in Ayyaz Anjum v. Government of Punjab (1997 PLC (C.S.) 123) is reproduced below:-- "Clearly, the matters relating to the posting and transfer of a civil servant relate to the terms and conditions of his service. Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal. The jurisdiction of the High Court is barred in these matters by the express provisions of Article 212(2) of the Constitution. We are, therefore, unable to support the interim order made by it in this case."
8.Learned counsel appearing for the petitioners in the above writ petitions have not cited any decision of the Hon'ble Supreme Court taking a different view. So far as the case of Zahid Akhtar (supra) is concerned, it may be observed that thereby the Hon'ble Supreme Court has held that the transfer policy of the Government has the status of a rule and the same must be followed by the competent authorities. Certain guidelines have also been highlighted, which should be kept in mind by the competent departmental authorities in the matters of transfers and postings of the civil servants. It has not been held in the precedent case that if a transfer order is passed in violation of the transfer policy or it is otherwise unlawful on account of political influence or any other mala fide ground then the same can be challenged in the High Court under Article 199 of the Constitution. The case of Pir Sabir Shah (supra) is clearly distinguishable. In disputes relating to the terms and conditions of civil servants the Constitution itself has provided forum of exclusive jurisdiction under Article 212 of the Constitution, therefore, the dictum laid down in the aforesaid case is not applicable in such matters. Respectfully following the law laid down in the latest judgment in Ayyaz Anjum's case, which has been reproduced above I am of the considered view that a High Court under Article 199 of the Constitution has no jurisdiction to interfere in matters relating to the transfers and postings of civil servants. Disputes relating thereto must be agitated before B the appropriate Service Tribunal.
9. It has been held by the Hon'ble Supreme Court in so many cases that even the mala fide actions taken in respect of the terms and conditions of civil servants have also to be agitated before and decided by the appropriate Service Tribunal. In this view of the matter, where a transfer order has been passed by competent departmental authority under the political influence of an MPA/MNA/Minister or on any other extraneous consideration, the same being mala fide shall have to be challenged before the appropriate Service Tribunal.
10. The Assistant Advocate-General after seeking instructions from the learned Advocate-General, Punjab, has stated that the orders which have been impugned in the above petitions shall be re- examined by the competent departmental authorities in the light of the guidelines given by the Hon'ble Supreme Court in Zahid Akhtar's case (supra) and by this Court in the case of Munshi Muhammad Azam (1996 PLC (C.S.) 415). This exercise, according to him, shall be completed within to months. He has given further undertaking that till re-examination of an impugned order by the competent authority the same shall not be implemented if it has not already done so. He has also undertaken that the salaries to the civil servants involved in these petitions shall be paid in accordance with the actual postings/performance of duties. Learned counsel for the petitioners are satisfied with the concession/undertaking given by the learned law officer that matters of transfer and posting of the petitioners shall be reconsidered by the competent authorities purely on merit within to months.
11. The Hon'ble Supreme Court in Zahid Akhtar's case directed as follows:-- "A reading of Rule 21(2) with Schedule V of the Rules of Business ibid, makes it clear that the transfer of a Section Officer/Under-- Secretaries and other officers of equiva7:.-yo rant; within the department is to be done by the Secretary of that department Rule 21 of the Rules of Business, which deals with power of posting, promotion and transfer of Government servants does not contemplate exercise of the;, powers by the Minister. The normal period of posting of a Government servant at a station, according to the above-referred policy decision of the Government, is 3 years which has to be followed in the ordinary circumstances, unless for reasons of exigencies of service mentioned in the aforesaid policy of Government, a transfer before expiry of 3 years period becomes necessary in the opinion of competent authority. The transfer orders in the present case, therefore, could neither be justified on the plane of policy directive of Government referred to above, nor they were sustainable on the language of Rule 21(2) read with Schedule V of the Rules of Business, ibid."
In the case of Munshi Muhammad Azam (supra) the Division Bench of which I was also a member held as follows:-- "---..It is the right of every civil servant to be dealt with in respect of terms and conditions of his service including the transfer and posting in accordance with the rules and the instructions and not otherwise. We may, however, be not understood to hold that right of the civil servant is so absolute that it can under no circumstance 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.
In some of the cases we have noticed that the departmental authorities some the 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 principle of policy as enshrined in the Constitution which enjoins the State to protect the marriage, family, the mother and the child. The transfer of a female civil servant to far-flung area sometimes creates problems as regards security of life."
12. It may be observed that an elected/ public representative has a right to bring it to the notice of the concerned executive authority that posting of a particular public functionary at a particular place is not in public interest and, therefore, he may recommend/request for his/her transfer to some other place. Such a recommendation/request of a public representative may be based on complaints regarding inefficiency or misconduct of the public functionary or in some cases it may be actuated on compassionate grounds. For example, he can recommend posting of an unmarried lady teacher to the place of her permanent residence so that she may live under protection of her parents. But transfers and postings cannot be made merely on the desire of a public representative or any other person. Recommendation/request/requirement made in this behalf must be assessed by the competent transferring authority in his administrative discretion, purely on merit. It ought not to be automatically complied with. The authority receiving such recommendation/request must ask its maker to state the reasons and the grounds on the basis of which the recommendation/request has been made. If from the reasons stated by the recommending public representative the competent authority is satisfied that the civil servant working under him should be transferred, he' may pass the necessary order of transfer. However, if no reason is supplied or the supplied one does not justify transfer of the civil servant in the public interest, then the recommendation/request/order should not be complied with. The Hon'ble Supreme Court in Zahid Akhtar's case (supra) made following observations in this behalf:-- "Elected representatives placed in charge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is to apprise these elected representatives the nicety of administration and provide them guidance in the discharge of their functions. Succumbing to each and every order or direction of such elected representatives without bringing to their notice the legal infirmities of such orders/directions/requests may sometime amount to an at of indiscretion on the part of a bureaucrat which may not be justified hierarchical discipline."
13. Therefore, whenever a bare recommendation/order/request is received from an elected representative, or for that matter from any other quarter, the competent transferring authority should not comply with the same as a matter of course and instead a back reference should be made for supplying the reasons forming basis of the recommendation/order/request. If the reasons forwarded justify the transfer and posting then the same may be ordered, otherwise the recommendation/request/order should be declined.
14. In view of the undertaking given by the learned Law Officer these writ petitions are disposed of with no order as to costs, in the following terms.--
(i) The transfer orders which are subject-matter of these writ petitions shall be reconsidered by the competent authorities purely on merits, keeping in view the transfer policy of the Government, the compassionate ground justifying the departure from the transfer policy, if any, the guidelines in the cases of Zahid Akhtar and Munshi Muhammad Azam which have been reproduced above and the observations made in paras. Nos. 12 and 13 above.
(ii) The impugned transfer orders shall be reconsidered and fresh orders shall be passed; wherever necessary, within to months of the receipt of copy of this order.
(i.e) The salaries to the affected civil servants shall, be paid on the basis of their actual posting/duties performed.