' RANA BHAGWAN DAS, J.---Petitioners who were appointed as Assistant Commissioners in pursuance of advertisement published in daily 'Dawn', Karachi dated 17-7-1995 after due selection process by the. Government of Sindh in the Services-and General Administration Department seek to impugn the vires of a notification, dated 11th February, 1998 issued by Government of Sindh Services and General Administration Department transferring them from their respective positions as SDM/Special Magistrate/City Magistrate and equivalent positions in connection with the affairs of the Province of Sindh and ordered to report to S & GAD with immediate effect until further orders.
2. It is the case of the petitioners that after fulfilling requisite formalities prescribed by the competent Authority and in pursuance of Notification dated 14-11-1995 issued by the S & GAD Selection Committee with approval of the competent Authority recommended their case for appointment as Assistant Commissioners in ex-PCS cadre (BPS-17) on regular basis with effect from the date of assumption of their office. After prescribed training they were posted- at various places as Assistant Commissioners and SDMs and some of them against equivalent positions in the Province. They were later served with copy of Notification dated 25-1-1997 issued by the S & GAD deciding that the question of their appointment be referred to the Sindh Public Service Commission for interview to assess their suitability for the posts held by them. A Constitution Petition No,D-465 of 1998 against such decision was filed which was dismissed as not maintainable. In the petition for leave to appeal before the Honourable Supreme Court of Pakistan, leave was granted to consider the point as to whether the controversy in question can be dealt with by the High Court in the exercise of its Constitutional jurisdiction or by the Service Tribunal.
While granting -leave to appeal Supreme Court observed that the petitioners may appear before Public Service Commission but, debarred the Provincial Government from passing any final order till the decision of the appeal. Faced with this situation the respondent-Government passed the impugned order removing the petitioners from the office of Assistant Commissioner/SDM and directing them to report to the S & GAD till further orders without the approval of the competent authority and mala fide in a manner that some of the petitioners were relieved of their office on Sundays.
3. In the parawise comments filed by the respondents, appointment of the petitioners and reference of their case to the Public Service Commission for assessing their suitability to retain such posts has been admitted but it is urged that the petition is not maintainable before this Court in view of the bar contained in Article 212 of the Constitution. It is pointed that transfer of the petitioners from their place of posting is an administrative/service matter which cannot be agitated before this Court in view of Article 212 of the Constitution. Furthermore, according to the respondents since no fundamental right of the petitioner was breached by their transfer there is no ground for maintaining the present petition.
4. By order dated 26-8-1999 we admitted this petition to regular hearing with liberty to the parties to place any other relevant material on record in support of their respective contentions within one month. For the sake of convenience and comprehending the real question in controversy this order may be reproduced which reads as under:-- "It is inter alia contended that the petitioners' case was taken out from the purview of Sindh Public Service Commission vide rule 5 of the Sindii Public Service Commission (Functions) Rules, 1990; that they were subjected to a test and an interview by a Selection Committee before their appointment; that after the appointment they were given necessary departmental training in various fields and their services utilized at different places in different capacities to the satisfaction of the respondents but all of a sudden for extraneous reasons and not in the larger public interest they were made O.S.Ds. With the stroke of pen vide Notification dated 11-2-1998 without the approval of the competent authority. It is further urged that the salaries and allowances of the petitioners were withheld but on an application moved before this Court and upon intervention, salaries and allowances were disbursed after a long delay. As to the jurisdiction of this Court a reference has been made to the case reported as Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530) and vehemently submitted that the impugned action amounts to administrative tyranny which can only be determined by the High Court in the exercise of Constitutional jurisdiction. Contentions raised require consideration. We, therefore, admit the petition to regular hearing. Since the respondents are already on preadmission notice, duly represented and parawise comments filed, no fresh notice need to be issued to them. It would, however, be open to both the parties to place any other relevant material on record in support of their respective contentions within one month from today whereafter no extension of time shall be asked for."
5. No additional material was placed on record by any of the parties with the consequence that we have heard the learned counsel for petitioners as well as learned Addl. A.-G. On behalf of the respondents.
6. Mr. M. L. Shahani learned counsel for the petitioners vigorously urged and contended that act of the respondent-Government in depriving the petitioners of their right to serve in the field after due selection followed by appropriate training in the relevant academy and field training amounts to a gross administrative tyranny which is not without any malice. He further submitted that the impugned order itself is mala fide and without jurisdiction on the face of it as it was passed without the approval of the competent Authority as required by Rule 35(i) of the Rules of Business read with Column 2 of Schedule VIII which enjoins that Chief Minister will be the competent Authority to order transfer and posting in cases relating to Deputy Commissioners, Superintendents of Police, Assistant Commissioners, Sub-Divisional Magistrates and Sub-Divisional-Police Officers. It is stated at the bar and not seriously controverted by the Addl. A.-G. That in relation to transfers and postings of the Assistant Commissioners approval of the Chief Minister is invariably obtained and is a condition precedent. Mr. Shahani has in addition referred to the Table below rule 9 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 clause (d) whereof expressly prescribes that Chief Minister is the authority competent to make transfers in respect. Of Deputy Commissioners, Assistant Commissioners and Superintendents of Police. In order to reinforce his argument Mr. Shahani has placed on record another Notification, dated 11th February, 1998 issued by Government of Sindh Services and General Administration Department which commences with the expression "With the approval of the Competent Authority following transfers/postings of Assistant Commissioners/SubDivisional Magistrates (BPS-17) are hereby ordered with immediate effect and, until further orders". Surprisingly and very conspicuously the expression "With the approval of the Competent Authority" is missing from the notification impugned by the petitioners which suggests that this course of action was taken without prior or post facto approval of the competent Authority as none has been alleged or even placed on the record despite the fact that maximum latitude was shown by this Court to both the parties to adduce relevant material on the record. Even today the section officer deputed by the respondents for assisting the Addl. A.-G. Is not in a position to controvert the aforesaid state of affairs. He is not in possession of the relevant file/summray containing approval of the Chief Minister to the transfer of the petitioners from their respective posts and to sit idle as OSDs under the S & GAD without formal posting for the last twenty-three months. It is well-settled that evidence which is in possession of a party and is withheld would have been unfavourable to him had it been produced before the Court or the Tribunal. We are fortified in this view by Article 129 of Qanune-Shahadat Order. In the absence of any document tending to suggest that due approval was accorded by the competent Authority, we are entitled to legitimately presume that no such approval was ever accorded and the respondent-Government acted in hot-haste for reasons best known to them and at any event not divulged in the parawise comments. Refer to Eastern Express Ltd. v. Western India Skin Exporters (PLD 1958 (W.P.) Karachi 355), M. Imamuddin v. Bashir Ahmed (1989 CLC 2309), Ziauddin Siddiqui v. Mrs. Rana Sultana (1990 CLC 645) and Tyeb v. Alpha Insurance Co. Ltd. (1990 CLC 428).
7. There is another aspect of the case. Public power is a sacred trust in the hands of the public functionaries which must be exercised in larger public interest and not otherwise. If a power or discretion is conferred upon an authority it is always expected that such functionary shall exercise such discretion in the larger interests of the public at large and not for personal or extraneous interest. Should the respondents feel that the petitioners were not fit and suitable to hold the office of Assistant Commissioner at least their services should have been utilised against equivalent posts in BPS-17 as they are liable to serve anywhere throughout the Province in any Government department, a Local Authority or a Government-controlled and managed corporation at the discretion of the competent Authority. The fact that the petitioners' services were not utilised anywhere also would itself suggest that the respondents perhaps desired that the petitioners be compelled to give up the job by reason of sitting idle and their capabilities becoming dormant for they can neither adopt any other profession nor join any other service while waiting for their posting orders for an inordinately long period of time. Improper motive of the respondent- Government can also be gathered from the circumstance that the petitioners alongwith their rejoinder affidavit dated 17-9-1998 submitted a list of Divisionwise 100 vacant positions in the Province of Sindh as on 5-8-1998 against which the petitioner's services could be advantageously utilised till the decision of the appeal before the apex Court. Admittedly payment of salaries and emoluments to the petitioners without the performance of any duty making them sitting idle and not deciding their fate clearly amounts not only to gross maladministration but also administrative excesses and tyrannical attitude towards the citizens of Pakistan. In Black's Law Dictionary expression "tyranny" has been defined to mean "Arbitrary or despotic government; the severe and autocratic exercise of sovereign power, either vested Constitutionally in one ruler, or usurped by him by breaking down the division and distribution of Governmental powers".
8. Basic principle of rule of law and good governance is that administrative actions should be just and fair and not perverse and arbitrary. By allowing the petitioners to draw their salaries and emoluments with all other fringe benefits without any work very clearly amounts to sheer wastage of public resources and intellect of the nation. Respondents' action by prohibiting the petitioners from performing their duties while continuing to remain in service of Pakistan can hardly be justified and validated. With the increasing financial constraints and resources it is incumbent upon the Public functionaries to make optimum use of the public servants rather than to waste public funds in this manner. In any event respondents cannot be permitted to derange the public talent and skill at the command of civil servants while in the employment of the Government. A reference may be made to a case from the Lahore Jurisdiction reported as Muhammad Afzal v.
Secretary Education, F 1992 PLC (C.S.) 117.
9. The matter does not end here. While as many as twenty-five petitioners impugned the action of the respondents, petitioner No,7, namely, Sikandar Ali son of Shah Nawaz Khan has been given posting on 21-8-1998 as Sub-Divisional Magistrate Tando Adam subsequent to the filing of this petition as would be evident from the counter-affidavit filed by Mr. Abdul Waheed Pirzada, Secretary, Services and General Administration Department, Government of Sindh. In his affidavit this officer states that case of Mr. Sikandar Ali was separated from the remaining Assistant Commissioners purely on humanitarian and compassionate grounds because his brother Mr. Muhammad Nawaz Khushk who was also Assistant Commissioner was killed by some unknown terrorists. While the attitude of the respondent-Government towards this petitioner may be considered as an act of acknowledgement of right of the petitioners, remaining petitioners are equally entitled to such treatment and they cannot be deprived of their due and legitimate right to be treated in equal terms as all the petitioners are placed in similar circumstances. Alternatively the act of the respondent may be taken as act of discrimination which can hardly be appreciated.
Be that as it may, the impugned order cannot be upheld as having not been passed in the larger public interest as expected of public functionaries.
10. Learned Addl. A.-G. Finding him on Weak wicket on the merits of the case seriously contended with all emphasis at his command that the jurisdiction of this Court to entertain the petition is barred by Article 212 of the Constitution as the impugned action would fall within the ambit of terms and conditions of service of a civil servant which can only be agitated before the Sindh Service Tribunal to the exclusion of all Courts including the High Court. On the face of it argument may have an element of attractiveness but examining the proviso (b) of section 4 with reference to proviso (b) of the Sindh Service Tribunals Act, 1974 we find that the impugned order does not appear to fall within the terms and conditions of service of a civil servant and would rather fall within the exception clause. This proviso postulates that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. Obvious effect and impact of the impugned order appears to be that the petitioners were not found fit and suitable to hold the office for which they were selected and they were not considered even fit for holding another equivalent position which order may not fall within the exclusive domain of the Service Tribunal as misunderstood by the learned Law Officer appearing for the respondent- Government. For this reason alone we are of the definite view that the case of the petitioners falling outside the ambit of the jurisdiction of Service Tribunal, remedy lay only before this Court in the exercise of Constitutional jurisdiction and not before the Service Tribunal.
11. Learned Addl. A.-G. Cited Abdul Bari v. Government of Pakistan (PLD 1981 Karachi 290), I.A.
Sharwani v. Government of Pakistan (1991 SCMR 1041) and Asif Ali Khoja v. Government of Sindh (1997 PLC (C.S.) 776), but all these cases are distinguishable on facts and do not deal with a situation as in the present petition.
12. For the aforesaid facts and reasons and following the dictum laid down by the apex Court in Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530) we are inclined to allow this petition and declare the impugned order to have been passed without any lawful authority and of no legal effect. Petition is accordingly allowed.