1993 PLP (C (PLC(CS))

FALAK SHER, J.‑‑‑Petitioner an officer of Secretariat Group BPS‑21 while serving as Director‑General, Communications, Lahore on 2‑5‑1993 was transferred and posted as Member (Finance), WAPDA with immediate effect until further orders. Aggrieved by the reversal thereof vide the impugned order dated 8‑6‑1993 with Khalid Mahmood respondent No. 3, Officer of the Income Tax Group BPS‑21, then Accountant Member, Income Tax Appellate Tribunal, Karachi, being the replacement through even dated separate order envisaging identical term, re-coursed to the present petition.

2. Contending that section 4(2) of the West Pakistan Water and Power Development Authority Act, 1958 (herein after referred to as the Act) inter alia envisages appointment of a member for a fixed term of 3 years (with eligibility for reappointment for another term or such shorter period as the Government may decide by virtue of subsection (3) thereof) was not amenable to pre mature recall save by way of removal for the encircumscribed reasons enshrined in section 6 of the Act viz., failure or refusal to or incapable of discharging responsibilities, declared insolvent or disqualified for employment in or dismissed from service of Pakistan or convicted of an offence involving moral turpitude or unauthorised acquisition of or continued interest in any beneficial transaction as a result of the Authority's operation. Reliance for the canvassed proposition was placed on Prof. Abduh Qayyum Qureshi v. The Government of the Punjab etc. (1975 SCMR 457)" Prof. Abdul Qayyum Qureshi v. The Government of Punjab etc. (1976 SCMR 48), Prof. Alaud .Din Akhtar, Chairman, Punjab Textbook Board v. Government of the Punjab through the Chief Secretary, Punjab, Lahore and another (PLD 1979 Lahore 324) and G.M. Malik, Chairman, Board of Intermediate and Secondary Education, Faisalabad v. Province of Punjab through Secretary Education, Government of Punjab and 2 others (1990 CLC 773).

3. To which the learned Deputy Attorney‑General and counsel for the present incumbent joined issue both as to maintainability of the petition as well as on merits submitting that the acclaimed fixed statutory term of 3 years within the contemplation of section 4(2) of the Act, is subservient to the rubric of direct appointment conceived by section 4(1) of the Act excluding serving transferee civil servants from the peripheral realm thereof especially the deputationists with inherently inbuilt phenomenology engraved in the suffix till further orders, who in terms of section 10 of the Civil Servants Act, 1973 are liable to serve anywhere within or beyond the geographical national frontiers with no vested right to a particular place of posting or tenure thereof, the petition is not maintainable in terms of the bar envisaged by section 17(1‑B) of the Act and Article 212(2) of the 1973 Constitution for the matter pertains to the terms and conditions of a civil servant qua the redress whereof specific remedy before the Service Tribunal has been catered for.

4. Controverting the objections learned counsel for the petitioner urged that the expression "appointed" appearing in section 4(1) ibid read conjunctively with the WAPDA (Chairman and Members) Service Rules, 1972, rule 3‑B(i) catering for remuneration, the WAPDA (Chairman and Members) (Salary, Allowances and Conditions of Service) Rules, 1980, rule 3(4)(d) rendering a serving civil servant of BPS‑21 eligible for appointment as a Member, The WAPDA (Chairman and Members) (Conditions of Service) Rules, 1982, Rule 4(2) making provisions for pay and allowances of a Member; is of wider import and connotation postulating posting of a serving civil servant by way of transfer leaving the fixed statutory terms of 3 years unimpaired; being the special law overrides provisions of the Civil Servants Act, 1973 catering for civil servants terms and conditions of service in general, referring to the case reported as Inspector‑General of Police, Punjab, Lahore v. Mushtaq Ahmad Waraich and others (PLD 1985 SC 159); provisions of section 17(1‑B) of the Act can't be pressed into service since it only caters for the persons serving under the Authority and not for the Chairman and Members comprising the Authority as prescribed in section 4(1) of the Act, whereas the bar envisaged by Article 212(2) of the 1973 Constitution is not attracted in view of proviso (b) to section 4 of the Service Tribunals Act, 1973 being a matter pertaining to holding of a particular post placing reliance on Dr. Bashir Ahmad v. Province of the Punjab and others (1992 PLC (C.S.) 306).

5. Having considered the arguments canvassed at the Bar, I am of the view tht the present petition is not maintainable by virtue of the bar envisaged by Article 212(2) of the 1973 Constitution because the complained of grievance in terms of juridical classification being transfer simpliciter, of a civil servant is a matter relating to the terms and conditions thereof within the contemplation of Article 212(1)(a), for the redress whereof remedy by way of an appeal before the Federal Service Tribunal has been specifically catered for and could be availed of under section 4(1) of the Service Tribunals Act, 1973.

6. The ouster perceived by proviso (b) whereto being banked upon by the learned counsel for the petitioner is of no avail because of its circumscribed scope postulating exclusion of the Tribunal's jurisdiction as to determining fitness or otherwise of a person's a2ogi~ to or hold a particular post or, promotion to a higher grade. Text whereof for the sake of convenience of reference is reproduced herein below: "

4. Appeals to Tribunals: ‑‑(1) Any civil servant aggrieved by any final order, whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him (or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal): Provided that‑‑‑ (a) . (b) no peal 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 grade."

7. Perusal whereof leaves no manner of ambiguity that adjudication as to fitness, being prefix to the initial appointment, continual holding thereof and further promotion only has been classified to be beyond the Tribunal's pale I which is not the instant case.

8. Consequently, the petition is not maintainable in terms of the bar contemplated by Article 212(2) of the 1973 Constitution and is hereby dismissed leaving the parties to bear their respective costs. AA./H‑P2/L Petition dismissed.