By this judgment I intend to dispose of Writ Petitions Nos. 23011 of 1996 and 23487 of 1996 as the question/s in controversy in them are akin to each other. In the former Constitution petition, interim order dated 15-12-1996 reads thus: "Referring to Zahid Akhtar v. Government of the Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 SC 530), Syed Mazhar Hussain Bokhari v. The Secretary to Government of the Punjab, Local Government and Rural Development Department and others (1996 SCMR 59) and an unreported judgment of the Supreme Court dated 16-4-1996 made in C.P. No, 1190 of 1996 titled " Akhlaq Ahmed v. Secretary to the Government of the Punjab, Local Government and Rural Development Department, Lahore and 2 others", it is contended that transfer of the petitioner without considering that he has not yet completed his normal tenure of 3 years at his present place of work, is beyond the spirit of the rules.
"2. Call for a report and parawise comments from the 1st respondent so as to reach this Court within a month.
Civil Miscellaneous No, 1 of 1996 "2 This application is allowed and disposed of. Civil Miscellaneous No, 2 of 1996 "3 This application shall be listed alongwith the main case after the receipt of report/parawise comments from the 1st respondent. Meantime, the operation of the impugned order shall remain suspended.
Copy dasti on payment of usual charges."
It was on 31-.3-1997 that the case was admitted to regular hearing, in terms of the following order: "After hearing the learned counsel for the petitioner as well as the learned Law Officer and the learned counsel who is watching brief on behalf of respondent No, 2, I am inclined to admit this petition to regular hearing to consider the plea raised herein as also the contentions point whether the contents of the file can be presumed to have been made the basis of the order of transfer of an employee from one place of work to another. Order accordingly. Notice.
"2. At this stage Syed Jamshed Ali, Advocate accepts notice on behalf of respondent No,
2. Office need not issue any formal notice to him.
3. Being a service matter, office is directed to accommodate the petitioner in the matter of finalisation of this cause at an early date preferably during the month of May, 1997.,
4. Civil Miscellaneous No,2 of 1996 may be listed as a Notice Case, during the next week."
2. Writ Petition No, 23487 of 1996 was admitted to regular hearing on 19-12-1996, in the following terms: "Mr. Muhammad Farooq Bedar, Advocate.
It is contended that in the past three years of petitioner's service he has been made to exchange places with others for six times. According to the learned counsel, the last but one order of posting In the report and parawise comments in Writ Petition No, 23011 of 1996, written statement of respondent No,2 therein as also in the parawise comments, on behalf of the respondent in Writ Petition No, 23487 of 1996, preliminary objections to the maintainability of these petitions here was taken by pleading that jurisdiction of this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
4. I have heard Sh. Ziaullah, Advocate and Mr. Muhammad Farooq Bedar, Advocate for both the petitioners in these matters. Syed Jamshed Ali, Advocate for respondent No,2 in Writ Petition No, 23011 of 1996 has reiterated.the plea raised in the written statement and contended that the twin- reason referred to by the respondent-authorities, while commenting against para. 4, does advance the 'plea that they are competent to consider the material, regarding the allegation against the petitioner, while ordering his transfer/posting from.one place of work to another. The plea was that even if these reasons are kept in view while directing the transfer/posting of a civil servant as above, the matter remains within the category of terms and conditions of service of a petitioner and, therefore, amenable to appropriate Departmental representation/appeal, before taking the matter to the appropriate Service Tribunal. He has referred to section 9 of the Punjab Civil Servants Act (No, VIII of 1974), as interpreted in Allah Rakha and another v. Government of the Punjab and others (1980 PLC (C.S.) 397); Munshi Muhammad Azam v. A.C. and others (1996 PLC (C.S.) 415 and 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 SCMR 1843) in support of the plea that a civil servant is not an aggrieved person to maintain a petition for judicial review before this Court in that he is sans any right to a particular place of work. He has concluded his arguments by stating that even the observations made in Zahid Akhtar v. Government of the Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 SC 530) are of no avail to the petitioner for the simple reason that this Court is not possessed of the requisite jurisdiction, for undertaking judicial review of such orders.
5. Mr. Fauzi Zafar, learned Assistant Advocate-General supported the official stand, in both the cases, that jurisdictional constraints in terms of Article 212 of the Constitution are squarely attracted to these matters with the result that the causes in relation to the terms and conditions of the petitioners cannot be made the subject-matter of a petition for writ or order in the nature of prohibition; certiorari and mandamus. He has specifically pressed into service last paragraph of the judgment of the Supreme Court in Zahid Akhtar's case (supra) wherein Civil Petition No, 175(L) of 1995 on appeal from the judgment/order dated 12-2-1995 of Lahore High Court, Lahore passed in W.P. No, 995 of 1995 was dismissed as not maintainable. He was of the view that both the petitioners can object to the impugned order dated 15-12-1996 made by the respondent-Secretary, Housing and Physical Planning Department on available grounds before the appropriate departmental forum and the appropriate Service Tribunal for adhering to the transfer policy in terms of the ratio in the case of Zahid Akhtar (supra).
Learned counsel for the petitioner in Writ Petition No, 23011 of 1996 has placed on the record photo- copy of Order No, SOII (PHS) 15-91 of 1987, made by the respondent-Secretary, Housing and Physical Planning Department on 10-3-1997, which reads as under:-- "ORDER "No, SOII (PHS) 15-91/87. Malik Ghulam Hussain, Executive Engineer, awaiting posting, is hereby posted as Deputy Director (South), Punjab Rural Water Supply and Sanitation Project, Housing and Physical Planning Department, Lahore, against an existing vacancy, till decision of Writ Petition No, 23011 of 1996 by the Lahore High Court, Lahore.
2. In partial modification of this Department's Order No, S011 (PHE) 7-5/93/Pt-III, dated 11-12-1996, Mr. Saleh Muhammad, Executive Engineer, is hereby posted as Assistant Director (Works), Office of the Chief Engineer (North), Public Health Engineering Department, Lahore, against an existing vacancy.
3. The above orders are being issued in public interest and would take immediate effect. The above named officers are directed to assume the charge of their new assignments immediately."
According to him, respondent No,2 has taken over the charge in terms of order dated 10-3-1997 and that such situation has come about during the pendency of this petition. Commenting upon this order and its effect on the decision of Writ Petition No, 23011 of 1996, learned counsel for respondent No, 2 stated that the posting of his client against an existing vacancy has been specifically made "till decision of Writ Petition No, 23011 of 1996 by the Lahore High Court, Lahore" in the 1st paragraph thereof, with the result that the same has no adverse effect on the rights of either party until the resolution of the dispute.
7. Before proceeding with the discussion on the questions raised in these petitions, it seems appropriate to have some peep into the past history, in relation to the civil servants in the matter of resolution of all the disputes in that regard. It is an admitted position that before the partition of the subcontinent, the matters about the civil servants were a part of the general law of the land and the institution of suit/s before the Civil Courts and following of the procedure with a view to their finalization under the Code of Civil Procedure (V of 1908), held the field. The Constitutional dispensation came about under the Constitutions of 1956 and 1962 with the result that availability of forum, at the High Court level, to the civil servants on specified terms remained current, for a while. The doctrine of a civil servant holding his office at the pleasure of the employer-Government gave rise to the notorious phrase that his salary and/or arrears thereof is/are "bounty from the Crown". It was of necessity the outcome of the law/s then applicable in Britain. It was in the year 1948 that the British Parliament had themselves recognised the Principle of Crown being subject to proceedings by an interested party, to successfully complain against an action by it through a civil servant. The advent of fundamental rights and other allied dispensations saw to it that the civil servants were granted their due place in the entire legal structure, to secure their positions as such and also to provide the appropriate remedies to them, before the ordinary and Constitutional Courts. The so-called myth of 'bounty from State', stood exploded and the entitlement of a civil servant to the emoluments, both current and past, came to be recognized through the agencies of Constitutional Courts in the second half of the 20th century.
8. To cut a long story short, it was in the year 1973 that regular administrative Courts were established and their respective sphere of activity detailed in the legislation which followed, both at the Federal and Provincial level. The framing of rules by the competent,, Authority, under the parent legislation also took final shape to cover the undermentioned stages in the matter of civil servants:
(i) Induction into service.
(ii) Maintaining respective seniority lists in each and every Department of the Government/s.
(iii) The specification of the terms and conditions of service with a view to providing the civil servants a permanent tenure subject to interference by the competent Authority within the complete dispensation holding the field in that regard.
(iv) The framing of appropriate Efficiency and Discipline Rules with a view to consolidating the then current and existing rules for taking disciplinary action against the civil servants concerned.
(v) A recognition of right of appeal etc. to the civil servants with a view to laying a challenge against an adverse action taken by the appropriate authority within: (a) departmental hierarchy and (b) before the appropriate Service Tribunal.
It was in this context that the entire structure under went considerable redoing and, of necessity, did provide for exclusive jurisdiction of Courts/Tribunals in some causes. The treatment to be meted out to a civil servant by the employer/departmental authorities spells out the constraints on both the civil servants concerned and the ordinary Courts of the country. To take only the question with regard to the terms and conditions of service of a civil servant, it was provided that the civil servant will be required to challenge an original order before the appropriate departmental authority and if the appropriate rules do not provide for such an opportunity, then, the concerned civil servant will be obliged to file a representation/appeal against the original order before the next higher authority than the one which made the same. The matter does not rest there. As the appropriate Service Tribunal was to consider the case of the concerned civil servant who had remained unsuccessful even if the representation/appeal-stage, its decision could be further challenged, on available grounds, before the Supreme Court, in terms of clause (3) of Article 212 of the Constitution.
9. The issuance or otherwise of writs/orders in the nature of certiorari, prohibition and mandamus under sub-clauses (i) and (ii) of clause (a) and sub-clause (ii) of clause (b) as also of clause (c) of sub-Article (1) of Article 199 of the Constitution in relation to a civil servant, can be referred to in these causes. It is not denied that the civil servant concerned is not possessed of the requisite locus standi to approach this Court for the enforcement of such'of his rights under the appropriate enactments which relate to his terms and conditions of service. The availability of the right to a litigant in this regard, including the appropriate Government, to make a petition for special leave to appeal before the Supreme Court against the judgment of the appropriate Service Tribunal, stands reduced to its very minimum. I hasten to add that the concerned quarters will be within their right to ask for the issuance of a writ or order in the nature of mandamus only for expeditious disposal of their cause/s before the departmental authority and/or the Service Tribunal concerned. However, such a situation will arise only if an appropriate demand for justice has been made before the concerned quarters and still they procrastinate thc. cause to the disadvantage of one of the parties to the litigation. Even the jurisdiction of this Court to this extent will come to an end when the matter has been taken before the Supreme Court, by either party, in terms of clause (3) of Article 212 of the Constitution.
10.Looked at in this perspective, the instant petitions require resolution of the following two questions in both of them and the third question only in Writ Petition No, 23011 of 1996:--
(i) Whether the impugned orders dated 16-12-1996 do not fall within the category of orders in relation to terms and conditions of service of both the petitioners to entitle them to resort to these Constitutional petitions?
(ii)If the answer to the first question goes against the petitioners, then what is the remedy available to both the petitioners and where?
(iii)Can the contents of the file in relation to petitioner-Zafar Ali, be presumed to have been made the basis of the order of his transfer on 16-12-1996?
11.Dealing with point (iii) first, which arises in Writ Petition No,23011 of 1996, suffice it to say that the question regarding the consideration or otherwise of the personal file of any civil servant while taking any action under the existent discipline/s will be relevant only if the same falls for consideration before the appropriate forum. In other words, if the Government, as litigant, is made to commit to a particular situation during its pleadings before the appropriate forum, only then its resolution will be called for. No doubt, the respondent-Government had in these proceedings made a reference to some of the causes which were either resolved or were pending consideration before the departmental authorities in relation to petitioner-Zafar Ali, the fact remains that the matter does not arise for resolution in this cause. Be that as it may, the learned Law Officer did not press into service the contents of the personal file of petitioner-Zafar Ali in support of the order of his transfer made by the respondent-Secretary on 16-12-1996.
12.Reverting to the first question, I must refer to the argument of Sheikh Ziaullah, Advocate to the effect that the instant petition was brought by him for the reason that he thought that his such course has the support from the judgment of the Supreme Court in the case of Zahid Akhtar (supra). According to him, the failure on the part of the respondent-authorities to strictly follow the Transfer Policy will be justiciable. He further made a reference to the observations made by their lordships of the Supreme Court in C.P. No,1190 of 1996 on 16-4-1996 reiterating the position at law that the precedent case-law was declared and, therefore, the order of transfer impugned in C.P.
No,1190 of 1996 was set aside by treating the petition as an appeal against judgment dated 18-3- 1996 passed in Writ Petition No,4387 of 1996. The penultimate sentence of judgment dated 16-4- 1996 reads thus:-- "In other words, the petition of the petitioner shall be deemed to be still pending for its decision in accordance with law."
He also did not controvert the position that in none of the aforequoted precedents the question with regard to the availability or otherwise of a remedy of a civil servant for making a representation/appeal departmentally, was discussed in any measure.
13.Moreover, it is not even so much as alleged by either one of the petitioners that the matter in relation to transfer of a civil servant does not fall within the category of orders relating to the terms and conditions of service of the petitioners. As already observed in para. 8 above that civil servants similarly placed as the petitioners, have a right to make a departmental representation/appeal before the next higher authority than the originator of the order dated 16-12-1996, my answer to this question plainly is in the negative, with the result that the resort to both these petitions here, is ill- founded.
14.Coming to question No, (iii) above, suffice it to say that the remedies of both the petitioners clearly lie in making a representation/appeal before the appropriate authorities in terms of section 21 of the Punjab Civil Servants Act (No, VIII of 1974) and that in the event of the petitioners remaining unsuccessful in that attempt, they will be within their right to avail of the remedy of appeal, in terms of section 4 of the Punjab Service Tribunals Act (No,IX of 1974).
15.In view of the foregoing discussion, I am inclined to dispose of both the petitions with the observation that the petitioners may, if so advised, resort to the departmental remedy of representation/appeal in terms of section 21 of the Punjab Civil Servants Act, ibid and that it would be only in the event of their remaining unsuccessful in that endeavour of theirs that they will be possessed of the requisite locus standi to make the appeal before the Punjab Service Tribunal.
Order accordingly. No costs.