2015 PLP (C (PLC(CS))

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.

This review application is directed against the order dated 16th September, 2013 passed in C.P. No.655 of 2013, whereby, the constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, filed by the petitioner was dismissed in limine in the following terms; "Learned counsel states that the petitioner and one Muhammad Younis had agreed amongst themselves for mutual posting/transfer and summary was moved in this regard, which was approved by the Chief Minister, however, the Secretary Secondary Education is not implementing the same and through this petition he seeks the implementation of the said mutual posting/transfer. He further states that certain junior officers have been assigned ditties on higher grades. Two distinct remedies have been sought; one of a personal nature and one where the colour of public interest is being given in respect of certain alleged illegal appointments. As far as the matter of non-implementation of the mutual posting/transfer is concerned the same lies within the domain of the Government and does not call for interference by this court in its constitutional jurisdiction. Learned counsel has also failed to point out as to under which provision mutual transfer/posting can be resorted to by government servants. That as regards the matter of assailing the appointment of junior officers allegedly against senior posts such matter cannot be clubbed along with the instant matter as it is a separate and distinct cause of action and as the alleged incumbent has not been posted to the post held by the petitioner or sought by him."

2. The applicant was present in person and stated that he himself will argue the case, because his counsel was not in attendance, however, he could not satisfy us how this review application was maintainable and just reiterated the prayer clause of review application and main petition. Therefore, in the interest of justice, we have decided to consider the questions involved in this review application.

3. The petitioner has made four different prayers in this application. Firstly, the order dated 16th September, 2013 is assailed to be reviewed/recalled and petition was sought to be decided on its own merits. Secondly, to declare that the impugned notification dated 3rd July, 2013, pertaining to posting of respondent No.3 is without lawful authority. Thirdly, directions be given to the official respondents to appoint the petitioner as Deputy Director (B-18) in the Directorate of Education. Fourthly, to initiate contempt proceeding against the official respondents for violating the order dated 11-6-2012 passed in C.P. No.429 of 2012 Naseem-ur-Rehman Khan v. Government of Balochistan and other.

4. By virtue of section 117, C.P.C. the provisions of the Code of Civil Procedure, 1908 ("CPC") are made applicable to the High Court. The power and procedure of review jurisdiction are governed by section 114 and Order XLVII of the C.P.C. and Rule I of Order XLVII provides the scope of review jurisdiction. The review application can only be entertained when applicant establishes that "on discovery of new and important matter or evidence, which after the exercise of due diligence was not within his knowledge, or could not be produced, on account of some apparent error or mistake, or for any other sufficient reasons, may apply to the court which passed the order". The review is only permissible and maintainable if conditions stipulated in Order XLVII are fulfilled and not otherwise.

5. The petitioner's contention as narrated in the main petition and in the instant application mainly relates to "Transfer and Posting" on particular post. Moreover, the 'transfer and posting' was solicited on basis of mutual transfer. It is well-settled by now that maker of transfer and posting of civil servant are relatable to the terms and conditions of his service, therefore, fall within the exclusive domain of the Service Tribunal, which is competent authority to consider the validity of transfer order if issued without lawful authority and is corum-non judice. The constitutional jurisdiction of the High Court is ousted by virtue of Article 212 of the Constitution, notwithstanding, the fact that the transfer order is based on mala fide, corum non judice or issued without lawful authority. Reference may be made to the following precedents:

(i) Peer Muhammad v. Government of Balochistan (2007 SCMR 54) (ii) Islamic Republic of Pakistan v. Dr. Safdar Mahmood (PLD 1983 SC 100). (iii) Mst. Shagufta Yunus v. Director of Education (1992 PLC (C.S.) 906). (iv) Dr. Alif Arif v. Secretary Health, Government of Punjab (PLD 1993 Lahore 286). (v) Syed Afzal Ahmed Haidri v. Secretary Defence Production Division. Ministry of Defence, Rawalpindi (1991 SCMR 477). (vi) Miss Rukhsana Ijaz v. Secretary Education, Punjab (1997 SCMR 167). (vii) Rafique Ahmed Chaudhry v. Ahmed Nawaz Malik (1997 SCMR 170). (viii) Rashid Ahmed v. Mst. Jiwan (1997 SCMR 171). (ix) Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab (1998 SCMR 1948). (x) Muhammad Nadeem v. District Officer Revenue and Estate Peshawar (2005 PLC (C.S.) 573). (xi) Nazir Hussain (Ex-Director Excise and Taxation), Administrator, Auqaf N.-W.F.P. Peshawar v. N.-W.E.P. through the Chief Secretary (1992 SCMR 1843). The grievance of transfer and posting cannot be called in question before the High Court under Article 199 of the Constitution.

6. The transfer, posting and promotion of civil servants are governed by the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 (Rules) and its Part-II Rule 7(1) relates to Appointments by Promotion or Transfer, which prescribes that the promotion and transfers to the posts in basic pay scale (BPS) 17 and above or equivalent shall be made on recommendation of the Provincial Selection Board. The Rules are totally silent about any such facility of mutual transfer. The assignment of 'transfer and posting' is prerogative of the government only, and civil servants cannot be allowed to decide the place of their posting according to their whims and wishes. It was rightly held in order dated 16-9-2013 that under which provision the mutual posting/transfer can be restored to by government servant.

7. The multifarious remedies under the garb of review application were sought and except the initial prayer clause, rest of the prayers do not lie led thin the scope of a "Review Application". A prayer for contempt can also not be made in a review application because contempt would be of an order/judgment, which is incompatible with seeking a review of the same. Thus, the question of initiating contempt proceeding in review application is without any substance and logic. All the facts now being alleged by the applicant and the documents being relied upon were available on record at the time of order in question and the applicant has miserably failed to point out any apparent error or mistake in the order in question. It is settled law that the main aim of power of review is to enable the corrections of error alone and nothing else. The review is not equated with an appeal. Review could not be made the pretext for rehearing the case. The power to review a court's own judgment/order is only discretionary and the reason for conferring discretionary power of review to a court was to present injustice being done. The powers of review are meant to enable correction of an error. A review in no case should amount to rehearing the ease on merits and case cannot be re-opened on pretext of review. Reference is made to Hussain Bakhsh v. Settlement Commissioner, PLD 1970 (sic) 1; Fatima v. Shah Muhammad PLD 1975 SC 318 and Faqir Muhammad Khan v. Akbar Shah PLD 1973 (sic)

110. Therefore, for the above reasons application is dismissed in limine. HBT/14/Bal. Application dismissed.