The brief facts out of which the present writ petition arises are that the petitioner . alongwith seven others filed Constitutional Petition No, 11437-2003 with the following prayer:-- "It is, therefore, humbly prayed that this petition be allowed and an appropriate writ/direction be issued to the respondents to refrain from allocating particular' posts to particular services making promotions, postings or appointments without complying with an abiding by the provisions of law referred to above and without framing any statutory rules-regulations to regulate the integrated services i,e, LG&RD, HUD&PHE and LCS in any manner whatsoever. The respondents be also directed to address to. the , representations made by the petitioners and other like employees before proceeding further in the matter."
The said writ petition was disposed of by this Court vide circler dated 1.9.2003. The respondents passed the order dated 15.1.2004. The petitioner being aggrieved filed a representation before Respondent No, 1, who did not decide the same till date. The petitioner being aggrieved filed this Constitutional petition.
2. The learned counsel of the petitioner submits that respondents was restrained to pass any order till the decision of the representation of the petitioner in the earlier round of litigation but the respondents transferred the petitioner without any justification in violation of the order of this Court on 15.1.2004. He further submits that order dated 15.1.2004 was passed by the respondents in violation of the transfer policy. He further submits that competent authority has imposed ban qua .the transfer of the petitioner and others. The respondents passed the impugned order during the subsistence of the ban policy on the transfer. .He further submits that the impugned order was passed under political influence. The person who was transferred in place of the petitioner is not eligible to be transferred. He further submits that it is the duty of Respondent No, 1 to decide the representation of the petitioner without fear, favour and nepotism within reasonable time.
3. Mr. Muhammad Hanif Khatana, Addl. Advocate General, entered appearance on Court's call, he submits that Constitutional petition is not maintainable as the petitioner has already filed representation before Respondent No, 1.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is admitted fact that petitioner has filed representation before Respondent No, 1 against the impugned order dated 15.1.2004. In this view of the matter, Constitutional petition is not maintainable as the law laid down by the Honourable Supreme Court in Ch. Tanbeer Ahmed Siddiky's case (PLD 1968 S.C. 185). It is also settled principle of law that public functionaries are duty bound to act in accordance with law. Even the Chief Executive of the country is bound to act in accordance with law in view of Article 4 read with Article 5(2) of the Constitution as the law laid down by the Honourable Supreme Court in Ch. Zahoor Elahi's case (PLD 1975 S.C. 282). The Honourable Supreme Court has laid down the guidelines for the public functionaries to exercise statutory powers in Zahid Akhtar's case (PLD 1995 S.C. 530). The relevant observation is reproduced hereunder:-- "A reading of Rule 21(2) with Schedule V of the Rule of Business .ibid, makes it clear that the .transfer of a Section Officer/Under Secretaries and other officers of equivalent rank within the Department is to be done by the Secretary of that Department. Rule 21 of the Rules of Business, which deals with powers of posting, promotion and transfer of Government Servant, does . not contemplate exercise of these 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 three years, which has to be followed in the ordinary circumstances; unless for reasons of exigencies of services 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. We are not in no doubt .that if the transfer orders in the case before us would have been made in accordance with law with policy directives of the Government referred to above and power was exercised by the competent Authority as contemplated by Rule 21(2) read with Schedule V of the Rules Of Business, ibid, there would have been no room for manoeuvring by the officers affected by such transfer. The fact that the transfers were made in violation of policy directive of the Government, which has the status of a Rule, and provisions of Rule 21(2), ibid, were not followed strictly, opened the door for the Government Servant concerned to bring in outside influences to obtain the desired transfer. We are also sorry to note that the Secretary L.G. and R.D. neither insisted these unethical and undesirable moves of his subordinates nor he pointed out to the Honourable Minister In-charge, that the transfer orders made by him from time to time in respect of various officers of his Department were neither in conformity with the declared policy of the Government nor these transfer orders conform to the provisions of the Rule 21(2) of the Rules of Business ibid. It was the duty of the Secretary LG&RD to have pointed out to the Minister concerned the extent of his authority in such matter, besides bringing to his notice that such frequent transfer of Government Servant could neither be justified as exigencies of service nor it could .be described in the public interest. We are constrained to observe that such unconcerned and lukewarm attitude on the part of the Head of a Government Department is not expected to promote discipline of efficiency in the Department. On the contrary such attitude may have a demoralizing effect on his subordinates encouraging them to seek intervention and favours of outside agencies, which may ultimately adversely affect the over all discipline and efficiency in the . Department. We, therefore, expect that the guidelines mentioned in the policy directives of the Government referred to above and the provisions of Rule 21 of the Rules of Business, ibid, will. be kept in view by all concerned while dealing with transfers of Government Servants.. The office is directed to send a copy of this Judgment to the Government of Punjab for circulating it to the all its Department, for future guidance. With these observations, this petition stands dismissed as not maintainable."
It is also settled principle of law that it is duty and obligation of the public functionaries to decide the representations of their subordinates without fear, favour and nepotism within reasonable time as is envisaged by Article 4 of the Constitution read with Section 24-A in the General Clauses Act as the law laid down by the Honourable Supreme Court in M/s. Airport Support Service Vs. The Airport Manager, Karachi, Airport (1998 S.C.M.R. 2268). In this view of the matter, let a copy of the writ petition be sent to Respondent No, 1, who is directed to decide the representation of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including Respondent No, 2 the petitioner and any other person, who would be aggrieved by his order, preferably within twenty days after receiving, the order of this Court, after verifying the record of the respondents, in case the petitioner had already filed representation before him and he has not passed any order on the representation of the petitioner till date. The petitioner is directed to appear before Respondent No, 1 in his office on 29.1.2004, at 11.00 a.m., who is directed to decide the representation of the petitioner strictly in accordance with law in terms of the aforesaid direction preferably within twenty days till 18.2.2004 either himself or send the same to the competent authority for its decision, who is also directed to decide the representation of the petitioner strictly in accordance with law, in the terms of aforesaid direction of this Court preferably within twenty days till 18.2.2004. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period. The learned counsel of the petitioner is directed to hand over copy of writ petition along with all the annexures to Mr. Muhammad Hanif Khatana, Additional Advocate General, who is directed to send the same to Respondent No, 1 for necessary action and compliance. Office is also directed to provide one copy of this order to the aforesaid learned law officer for onward transmission to Respondent No, 1 for necessary action and compliance.
With these observations, the writ petition is disposed of.
Copy Dasti on payment of usual charges.