' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by the petitioner Muhammad Jawwad Ali challenging the appointment of Rana Dilbar Khan respondent No,3, as Assistant Librarian vide order dated 13-4-1996, being illegal, without lawful authority and discriminatory.
2. The facts which have emerged from the contentions raised by learned counsel for the petitioner are, that applications were invited for the post of Assistant Librarian vide advertisement dated 21- 10-1995. The petitioner applied for the said post and was issued an interview call. However, declaring him unfit for the said post respondent No,3 was appointed vide Appointment Letter No,1346-50, dated 13-4-1996. His contention is that respondent No,3 was not eligible for the said post, as his requisite degrees of D.L.S. And M.L.S. Were the result of fraud for reasons enumerated therein and Selection Committee had also no power to appoint him, as impugned order could only be passed by the Syndicate on the recommendation of Selection Board, as per Islamia University, Bahawalpur Officers (Appointment) Statutes, 1977. He relied upon Shaukat Ali and others v.
Government of Pakistan through Chairman, Ministry of Railways and others (PLD 1997 SC 342), Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632), Mazhar Husain v. Province of Punjab (PLD 1985 Lahore 394), Muhammad Akram v. Director, Schools Elementary Education and 2 others 1996 PLC (C.S.) 305 and Rai Mazhar Iqbal, etc. v. University of Punjab (1992 CLC 1158).
3. Conversely, the stand of petitioner stands controverted, denied and repudiated by the respondents. It is asserted that both the petitioner and respondent No,3 applied for the said post, but respondent No,3 was selected and appointed due to his 15 years' past experience as well as his other academic qualifications. That the appointment was made by a duly and legally constituted Selection Committee. The contention of learned counsel for the petitioner regarding holding of questioned degrees of D.L.S. And M.L.S. Was also controverted. It was also asserted that there was no violation of any rules, so the writ merits rejection.
4. Both the learned counsel for the parties have been heard and record perused.
5. Reiterating his contentions, learned counsel for the petitioner submitted that appointment could only be made by the Syndicate on the recommendation of Selection Board, and admittedly the appointment order dated 13-4-1996 has not been issued by the said authority. He, thus, submitted that the impugned order violates the Statutory rules of appointment so the writ is maintainable and impugned order being illegal, void, and without lawful authority is liable to be set at naught and the petitioner's appointment against that post be ordered.
6. Controverting, repudiating and denying the assertions of learned counsel for the petitioner, it is argued that appointment of respondent No,3 is strictly in accordance with Rules and Regulations. It was vehemently argued that Selection Committee was a legally constituted body and had the powers to appoint or reject any candidate. That all allegations of the petitioner regarding academic qualifications of respondent are incorrect and based on mala fide. He argued that respondent No, 3 was debarred from appearing in the examination till 1st Annual 1992 vide order dated 12-3-1991. However, on his appeal, the said period was reduced to two years i,e, up to 1990 as such he could appear in 1st Annual 1991 and consequently, he appeared and qualified. It was also argued that there is no violation of any statutory rules and if at all there is any violation of rules, it is of non-statutory rules, and in both cases, no writ is maintainable. He placed reliance upon Jaffar etc. v. V.-C. Etc. (1993 MLD 1038), where it has been held that non-statutory rules cannot be enforced through Constitutional petition. Similarly he relied upon Khalid Hussain v. The Chancellor (Governor of Punjab) etc. (NLR 1995 CLJ 219), Dr. Barkat Ali v. Islamia University, Bahawalpur through its Vice-Chancellor and 3 others (1995 PLC (C.S.) 703) and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093).
7. The pivotal point which requires determination is, if the impugned order dated 13-4-1996 has been passed in accordance with the statutory rules governing said appointment. In order to appreciate this legal proposition, reference has to be made to the relevant provisions of the statutes governing such appointment.
8. According to Islamia University Bahawalpur Officers (Appointment) Statutes, 1977, appointment of Assistant Librarian is to be made by initial recruitment or by selection from amongst Library Assistant and classifiers cataloguers. Now the next question arises, as to who is competent to make such appointment. In order to find out its reply, we have to refer to Islamia University Bahawalpur Officers (Appointment) Statutes, 1977, of which section 3 is relevant for our purpose and which reads as follows: "Appointment of officers mentioned in column 2 of the Schedule shall be made by the Syndicate on the recommendation of the Selection Board: ' Provided that the Syndicate shall have full powers to make short term appointment of officers for a period not exceeding 3 years, if and when necessary."
It is, thus, clear that if the name of officer appears in column No, 2 of the Statutes, his appointment shall be made by the Syndicate on the recommendation of Selection Board. Now if we peruse the Schedule, the name of post of Librarian appears at Serial No,8. It is, thus, clear that appointment in question has to be made by the syndicate on the recommendation of Selection Board. Now the next question arises, as to what is the constitution of Syndicate and for this we have to refer to section 24 of Islamia University Bahawalpur, 1975, which reads as follows: ' The Syndicate shall consist of-- "(i) the Vice- Chancellor (Chairman);
(ii) two members of the Provincial Assembly of the Punjab to be elected by the Members of the Assembly from amongst themselves:.
(iii) two Members of the Senate to be elected by the Senate;
(iv) one Dean to be nominated by the Vice-Chancellor;
(v) one Professor or Associate Professor to be elected by the teachers of the University from amongst themselves;
(vi) one Assistant Professor or Lecturer to be elected by the teachers of the University from amongst themselves;
(vii) two nominees of the Chancellor;
(viii) the Chairman or a member of the Public Service Commission to be nominated by the Chairman;
(ix) Education Secretary and Director Public Institution, Punjab, Lahore;
(x) one Principal and one Teacher of the Affiliated Colleges to be elected by the Principals and Teachers of such Colleges from amongst themselves; and
(xi) two student representatives of the students' Unions, that is one from the Presidents of the Unions of the Affiliated Colleges to be elected from among themselves and one from the University Students' Unions.
(2) Members of the Syndicate, other than ex officio members shall hold office for three years.
(3) The quorum for a meeting of the Syndicate shall be one-half of the total number of members, a fraction being counted as one."
' Section 25 (ibid) relates to powers and duties of Syndicate and as sub-clause(s) is only relevant for our purpose so the same is reproduced as follows: "to appoint University Teachers and other Officers on the recommendation of the Selection Board for teaching and other posts in the initial pay of Rs,500 per mensem or above."
9. As appointment in question is to be made by the Syndicate on the recommendation of Selection Board, so we have to see what Selection Board means and this we find in sub-clause (vii) of section 2 of Islamic University Bahawalpur Officers (Appointment) Statutes, 1977, which reads as follows: "'Selection Board' means the Selection Board constituted under Statute 6 of the Schedule appended to the Islamia University of Bahawalpur Act, 1975."
10.. Now the question arises, if the impugned order of appointment has been made by Syndicate on the recommendation of Selection Board, as required by law governing such appointment. A perusal of appointment order of respondent No,3 dated 13-4-1996 reveals that the said order has been passed by Vice-Chancellor on the recommendation of Selection Committee. Thus, the very appointment order has not been passed in accordance with statutory Rules.
11. The stand of learned counsel for the respondent is that it is long standing practice of Islamia University, Bahawalpur that such appointments are made by the Vice-Chancellor on the recommendation of Selection Committee and he produced a list of about 34 such appointments.
He submitted that this practice of making such appointment by Vice-Chancellor on the recommendation of Selection Committee is being followed, since long and its deviation is also not permissible. In support of his contention, he relied upon Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453), in which it has been held: "Where the departmental practice has followed a course in. The implementation of the relevant rule whether right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by a long and consistent course by the practice. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the department. 'As regards Departmental construction', that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules Crawford, thus, observes: 'Where the executive construction has been followed for a long time an element of estoppel seems to be involved. Naturally placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities."
' This very authority has been relied upon Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 353), wherein the question involved related to interpretation of certain expression for the purpose of assessing customs duty. Both the authorities relied upon by the learned counsel are not applicable to the facts in hand, as the question involved is very simple and does not involve the question of interpretation, but it involves the question of implementation.
He next argued that even if it is assumed that appointment order has been issued in violation of procedure laid down for appointment, it involves violation of non-statutory rules, which cannot be enforced through Constitutional petition and has placed reliance on 1993 MLD 1038. In the instant writ, violation of statutory rules is involved and not that of non-statutory rules, as such, the said authority is also not applicable to facts in hand.
12. It is also pertinent to point out that a Notification No, 618/M & R, dated 11-7-1994 has been produced by the learned counsel for the respondents, whereby Syndicate has delegated its powers of appointment of employees in BS-1 to 16 to the Vice-Chancellor and Registrar. He has also brought on record photo copies of letters pertaining to University of Agriculture, Faisalabad, University of Engineering and Technology, Lahore, University of the Punjab and Bahauddin Zakaryya University, Multan to prove that power of appointment of employees in BPS-I to 16 is being exercised by the Vice-Chancellors of respective Universities. If the stand of respondents is accepted as correct that such powers vest with Vice-Chancellor, then why appointments shown at Serial Nos. 31 to 34, dated 25-4-1996 have been made by Vice-Chancellor on the recommendation of Selection Committee. Thus, it is clear that power of appointment of employees of BPS-1 to BPS-16 still vests with Syndicate, who is to act on the advice/recommendation of Selection Board. A flagrant violation and a deliberate disregard of law and relevant Rules would attract power of judicial review vesting in Superior Courts. I am fortified in this respect by illuminating observation made in PLD 1985 Lahore 394, which is as under: "Under Article 9 of the Provisional Constitution Order, 1981 as also under Article 4 of the Constitution of Pakistan, 1973, every act of the Government is required to be exercised lawfully and every individual has to be dealt with in accordance with law, as to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen."
13. As discussed above, act of respondents Nos. 1 and 2 in appointing respondent No, 3 is tainted with mala fide and is prompted with malice/mala fide, as such, this Court has inherent power to interfere and the bar contained is not applicable to the facts of this case.
14. Articles 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 provide equality of citizens before law. While dealing with this aspect of equality of citizens before law, it has been propounded in an illuminating judgment reported in PLD 1997 SC 342, as follows: "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concept of fair play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise. Wile discharging official functions, efforts should be made to ensure than no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary."
15. For what has been stated above, I accept this writ petition, set aside the impugned order dated 13-4-1996 about the appointment of Rana Dilbar Khan respondent No, 3 as Assistant Librarian and direct that Muhammad Jawwad Ali petitioner shall be appointed as Assistant Librarian forthwith.
This order shall be executed within a period of 15 days by respondents Nos.1 and 2 under intimation to the Additional Registrar of this Court. It means that Rana Dilber Khan is no more Assistant Librarian from tomorrow (28-5-1997) on the basis of impugned order dated 13-4-1996, which has been set aside. It is, however, made clear that benefits of Assistant. Librarian shall be available to Muhammad Jawwad Ali petitioner from the date of his appointment, as such, on the basis of this judgment and it is further clarified that this judgment shall not affect other appointments.
Petition accepted.
1998 PLC (C.S.) 556 [Lahore High Court] Before Karamat Nazir Bhandari, J Dr. SAMINA YOUNAS versus GOVERNMENT OF PUNJAB and others Writ Petition No, 13198 of 1997, decided on 17th December, 1997.
Punjab Civil Servants Act (VIII of 1974)--- ----S. 9---West Pakistan Government Servants (Conduct) Rules, 1966, Rr. 19 & 29---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Transfer orders from one place to another---Validity---Jurisdiction of High Court to entertain Constitutional petition against transfer of civil servant---Civil servant being liable to serve anywhere within or outside the Province, could not insist on particular post or particular place of posting--Controversy/dispute as regards posting and transfer formed part of terms and conditions of employment of civil servant---Affected person could only agitate grievance arising out of terms and conditions of his employment in Service Tribunal---Jurisdiction of High Court would not be attracted on account of Constitutional Bar in terms of Art. 212 of the Constitution---Civil servants (petitioner and respondents) had acted clearly in violation of Code of Conduct as enshrined in Rr. 19 & 29, West Pakistan Government Servants (Conduct) Rules, 1966 by exerting political influence to get themselves posted at place of their choice---Such litigants should neither expect such relief nor such relief could be extended to them in exercise of equitable Constitutional jurisdiction---Constitutional petitions against transfer orders were dismissed---Copy of judgment was directed to be sent to Chief Secretary, Health Secretary and Home Secretary for their information and for such action as they might like to take against both petitioner and respondent for having freely breached Rr. 19 & 29, West Pakistan Government Servants (Conduct) Rules, 1966---High Court observed that strict view of the matter would be taken as such view was likely to improve discipline within service. [pp. 558, 559, 560] A, B & C Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738 and Nawab Syed Raunaq Ali and others v.
Chief Settlement Commissioner and others PLD 1973 SC 236 ref. Sardar Muhammad Latif Khan Khosa for Petitioner.
Muhammad Amin Lone, A.A.-G., Punjab with Mehmood Ahmad, Assistant, Prison Section, Home Department for Respondents Nos. 1 to 3. Farooq Zaman for Respondent No, 4.
Date of hearing: 8th December, 1997.
' This judgment will dispose two writ petitions viz. Writ Petition No,11542 of 1997 brought by Doctor Muhammad Younas and Writ Petition No,13198 of 1997 brought by Dr. Samina Younas, wife of Doctor Muhammad Younas, the earlier writ petitioner.
2. In the first Writ Petition No,11542 of 1997 brought by Dr. Muhammad Younas, challenge is thrown to the validity of the order dated 8-5-1997 transferring him to District Jail, Rajanpur and posting him there as Medical Officer. By the same order, respondent No, 4, Doctor Javed Munir, Medical Officer, Rajanpur was transferred and posted at District Jail, Multan vice Doctor Muhammad Younas, the petitioner. In the second writ petition, Dr. Samina Younas, the wife, has challenged the order dated 9-7-1996 whereby the Government of Punjab and Home Department suspended its earlier order dated 2-7-1996 purportedly in pursuance to the order of his Court dated 3-7-1996 passed at Multan Bench. Under the earlier orders dated 2-7-1996, Dr. Samina Younas, the petitioner, was allowed to continue as Women Medical Officer in Women Jail, Multan while Dr. Naila Javed, respondent No,4, in this writ petition (W.P. No, 13198 of 1997) was directed to report back to her parent department namely Social Security Institution, Punjab, Lahore.
3. It is an unusual case where writ petitioners as husband and wife are locked in a bitter battle for place of posting against respondent No,4 in two writ petitions who were also husband and wife and Doctors by profession. Due to consideration of convenience or otherwise the two couples seem to have developed fancy for Multan and are not willing to be posted out and for this purpose are using all conceivable methods including political interference from the highest quarters, to achieve their ends.
4. The case of Doctor Samina Younas seems to be that respondent No,4 being an employee of Social Security Institution is not a civil servant, therefore, cannot claim posting as Women Medical Officer, Women Jail, Multan, not even on deputation. Her further case is that since the impugned order has been passed in pursuance to the interim order of this Court dated 3-7-1996, with the disposal of writ petition as well as the Intra-Court Appeal, the interim order came to an end and, therefore, the respondent department is bound to cancel the order dated 9-7-1996 and restore the earlier one dated 2-7-1996. The submission of Doctor Muhammad Younas, in support of his petition, is that he could not have been posted at Rajanpur without completion of his normal tenure of three years at District Jail, Multan. His further contention is that Doctor Javaid Munir has been able to man oeuvre his posting at Multan at the cost of the petitioner, through use of political influence.
5. Both the petitions are resisted on legal as well as factual grounds. The legal objection of course is the Constitutional bar as contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 as explained in repeated judgments of the Supreme Court of Pakistan. On merits it has been contended that there is no bar to respondent No,4, Doctor Naila Javaid, being sent on deputation to Government of Punjab and thereafter being posted as Medical Officer, Women Jail, Multan. Both the couples of course have pleaded their respective conveniences/ inconveniences in the event they are posted out of Multan.
6. During the course of hearing it transpired that both the couples i,e, writ petitioners and respondents No,4, have been using political and governmental influence from the highest quarters for achieving their ends. I, therefore, sent for the original Government file and have gone through the same. The facts reveal an astonishing state of affairs where the parties have been successfully inviting interference from Minister, Chief Minister, Senior Minister and Speaker, National Assembly to remain at Multan. These Honourable functionaries and holders of Constitutional office have been obliging their respective constituents without pausing for a moment that their intervention may lead to contradictory orders resulting in disturbance of discipline. The pitiable state seems to have been correctly summarized by Home Secretary through his note to the Chief Minister dated 10-6- 1996. This note appears at page No,97 of the file. In the note after pointing out the contradictory orders and the predicament of the concerned department, it was suggested that the Chief Minister be pleased to give a final direction in the matter. It was further suggested "this department, however, proposes that both Doctor Samina Younas and Doctor Naila Javaid be reverted back to their parent department and after suspension proceedings be started under Efficiency and Discipline Rules".
7. It is not clear as to what action, if any, has been taken by the Honorable Chief Minister on this summary. Apparently, it proved a cry in the wilderness. It seems that, thereafter, the battle shifted to the premises of this Court.
8. It is settled law that no civil servant has a right to any place of posting. Under section 9 of the Punjab Civil Servants Act (VIII) of 1974 "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 or a local Authority or a corporation or a body set up or established by any such Government provided".
9. Under the rules/instructions/policies issued from time to time, the matters of posting/transfers/deputations and consequential terms are described in detail. In the presence of the statutory provisions, no civil servant can insist on a particular post or a particular place of posting. Further, it is equally settled that controversy/dispute as regards the posting and transfer forms part of terms and conditions of the employment of a civil servant and under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as Constitution), an affected person can only agitate grievance arising out of terms and conditions of his employment in the Tribunal set up for the purpose and jurisdiction of the High Court under Article 199 of the Constitution will not be attracted, as Article 199 is subject to the Constitution. The only exceptions are when the order is void, ex facie mala fide and such cases as laid down in the case of Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738). The power of judicial review is available in such exceptional cases, in spite of the Constitutional ouster.
10. In this case the constraint of Constitutional bar is there but is sought to be avoided by urging that the impugned orders are mala fide on the face of it as the same have been passed in disregard of law and possibly are tainted with political intervention. The argument is open to serious debate but assuming that the Constitutional bar is not attracted, in my considered view, the direction as prayed for, can be withheld to both the petitioners on the- --- ground that their conduct is clearly unworthy of civil servant inasmuch as both of them in fact both the respondents also are guilty of inviting political intervention in a matter in which they have no right under section 9 of the Punjab Civil Servants Act, 1974. The departmental file speaks volumes about this and in fact during the course of hearing, both the sides have not disputed that their hands are tainted with this intervention. It may be noted that under Rule 19 and Rule 29 of the Government Servants (Conduct)
Rules, 1966, a civil servant is expressly barred from bringing or attempting to bring political or outside influence directly or indirectly to bear on Government or any Government servant in support of any claim arising in connection with his employment as such. Both the couples/parties have acted clearly in violation of the above code of conduct. Such litigant cannot expect nor can be extended relief in exercise of equitable Constitutional jurisdiction. Therefore, notwithstanding the assumption that Constitutional bar is not attracted and notwithstanding the so-called weight to the arguments of the petitioners (which I am deliberately not appraising) both the petitioners are disentitled to any relief from this Court on account of their acting in breach of the West Pakistan Government Servants (Conduct) Rules, 1966 as noted above and for this purpose I respectfully rely on well-known case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236). The summary put up before the Chief Minister on 10-6-1996 by the Home Secretary reflects an agonizing state of affairs and one can only wish that the Chief Minister had acted in the manner recommended by the Home Secretary.
10-A. For the reasons noted above, these two petitions are dismissed, leaving the parties to bear their own costs. It is, however, directed that copy of this judgment shall be sent to the Chief Secretary, Government of Punjab, Health Secretary and Home Secretary Government of Punjab for their information and for such action as they may like to initiate against both the petitioners as well as both respondent No,4 for having freely breached Rule 19 and Rule 29 of the West Pakistan Government Servants (Conduct ) Rules, 1966. This Court can only hope that a strict view of the miner will be taken as such a view is likely to improve the discipline within service.