P L D 1988 Lahore 553 (PLP)

This is a petition under Article 199 of the Constitution instituted by Mrs. Saeed Bokhari, a civil servant of the rank of Head Mistress in the Provincial Education Department; by it, she calls in question an order of the Secretary to the Government of the Punjab Education Department dated 3rd April, 1988 which reads: "Mrs. Saeeda Bokhari, awaiting orders of posting, is hereby adjusted as Headmistress, Government Girls High School, District Jail, Multan, against a vacant post with immediate effect."

2. Before me, arguments have proceeded on the basis that the order, whatever its wording, is an order of transfer and I shall proceed accordingly.

3. The facts as they appear from the petition may be shortly stated as follows. The petitioner was posted as Head Mistress Government Girls High School, Pandant Ram Narain, Multan. She obtained the orders of the then Provincial Minister of Education for her transfer to Government lqbal Girls High School, Hussain Agahi, Multan. The Minister's order was given effect to in an order dated 24‑6‑1987 of the Director Public Instructions, Punjab, Lahore. The petitioner assumed charge of her new assignment 6n 27‑6‑1987. However, by his order dated 30‑6‑1987, the Director of Education, Multan, an authority subordinate to the Director Public Instructions, Punjab, Lahore, directed her posting as Head Mistress, Government lqbal Girls High School, Hussain Agahi, Multan, to remain in abeyance. The petitioner approached the Provincial Minister of Education again and he directed that her posting as Head Mistress Government lqbal Girls High School, Hussain Agahi, Multan, should be implemented. The Director of Education, Multan, again, by his order dated 11‑7‑1988, made an order withdrawing the order of her posting as Head Mistress, Government Iqbal Girls High School, Hussain Agahi, Multan; not only that but the Secretary Education, by his order dated 23‑7‑1987, reduced her in rank and posted her as Deputy Head Mistress, Government Girls High School, Haram Gate, Multan. She instituted a writ petition in‑this Court and the operation of that order was suspended on 5‑9‑1987. When this Court's order was not complied with, she moved a contempt petition. By yet another order dated 22‑9‑1987, the petitioner was directed to resume charge of Government Girls High School, Pandant Ram Narain, Multan. This gave rise to another contempt petition and ultimately, by an order dated 8‑10‑1987, the Secretary Education withdrew the order dated 23‑7‑1987. Then the District Accounts Officer, Multan, withheld her salary and she again filed a writ petition (W.P.No.140 of 1988), and had the operation of the District Accounts Officer's objection suspended. In view of the order dated 8‑10‑1987, she withdrew her Writ Petition No. 1124 of 1987 challenging her transfer on the commitment "on behalf of the respondents to the effect that she will continue to be paid against the post that had been assigned to her". She also withdrew her Writ Petition No.140 of 1988. "Having thus made the petitioner change her position in face of the orders dated 8‑10‑1987 she has once again been mala fide shown to have been waiting for her posting orders and has thus been retransferred to the Government Girls High School District Jail, Multan vide order dated 3‑4‑1988 under the cloak of a posting order without there being a least lawful justification for the same, whatsoever".

4. The above‑mentioned orders, it is asserted, were "uncalled for interference in her original orders of transfer dated 24‑6‑1987... by various functionaries time and again" and they clearly speak of the mala fides of the respondents, "who are out to cause her dislocation by all means"; "the impugned order and the entire exercise on the part of the respondents, from the beginning to the end, has been promoted by the ulterior motive and favouritism extended .... by Mrs. Azhari Gilani and has nothing to do with the administrative reasons and hence not sustainable in law"; it is also maintained that "retransfer of the Government employees within a period of less than a year is against the established policy of the Government and as such the impugned order is unwarranted, uncalled for and violative of instructions".

5. It is. therefore, prayed that "an appropriate writ may kindly be issued to the effect that the impugned order dated 3‑4‑1988 ..... is illegal, wrongful, mala fide, uncalled for and unwarranted, without lawful authority, without jurisdiction and hence of no legal effect".

6. The respondents, Secretary, Ministry of Education, Government of the Punjab, and the Director of Education, Multan Region, Multan, have filed a written statement controverting the averments of fact, in so far as they concern the alleged mala fides.

7. Learned counsel for the petitioner referred to the Government of the Punjab Education Departments letter dated 21‑8‑1997, containing the transfer] posting policy in the Education Department as approved by the Chief Minister Punjab and contended that the instructions contained therein have the force of law. He particularly relied upon Instructions No. 1, 3 & 9 for his contention that the petitioner's transfer from Government Iqbal Girls High School. Hussain Agahi, Multan, to Government Girls High School, District Jail, Multan, is against law. The relevant instructions provide that transfers should normally be made during summer vacation; that subject to availability of vacancies the teachers would be posted in the institutions located closest to their place of residence and that "the minimum tenure at one station would be 3 years except in cases where the transfer is ordered on administrative / disciplinary grounds or on the request of concerned officer, or when it has been necessitated on account of promotion/ demotion of the concerned officer".

8. There is no question that the petitioner is a civil servant within the meaning of the Punjab Civil Servants Act, 1974. Section 9 of the Act provides that "every civil servant shall be liable to serve anywhere within or outside the Province in any post under the Government of the Punjab or the federal Government lot any provincial Government or a local authority or a corporation or a body set up or established by any such Government". By section 23, Governor, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act" In the exercise of his powers under section 23, the Governor of the Punjab was pleased to make the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Part 11 of those rules provides for the appointment by promotion, transfer or deputation of civil servants.

9. The principle of law that appears to emerge clearly from a long line of authorities is that in order to qualify as statutory rules, capable of creating rights and obligations enforceable at law, the departmental instructions must have been issued by the same authority as has, in law, the power to make rules. For, the power to make rules is statutory, and, therefore, the power to issue instructions for which the status of statutory rules is claimed must necessarily be referable to the statutory provision granting the power to make rules. See Pakistan v. Sh. Abdul Hamid (P L D 1961 Supreme Court 105), The Province of West Pakistan etc. v. Ch. Din Muhammad and others (P L D 1964 Supreme Court 21) and Dr. Habib Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (P L D 1973 Supreme Court 144). Learned counsel has placed on the record a copy of the judgment of the Supreme Court in a case C. A. No.69 of 1987, Nasir Saeed v. WAPDA, decided on 31st May, 1987. In that case, the rule‑making power under the Water and Power Development Authority Act vested in the Water and Power Development Authority; that Authority had made the rules, and "thereafter it had proceeded to issue general instructions, and had prescribed the procedure for retiring those officers who had rendered 25 years' service or attained the age of 55 years irrespective of the fact whether they belonged to grade 20 or not". The general instructions, so issued by the Authority, were held to have the force of the rules. Thus, in that case also, the general instructions had been issued by the same authority as had the power to frame the rules under the Water and Power Development Authority Act.

10. Here, the power to make rules under section 23 of the Punjab, Civil Servants Act, 1974 vested in the Governor. The instructions relied upon by the petitioner's counsel were,‑ however, issue by the Chief Minister,, that is, by an authority different from the one in B whom the power to make rules under section 23 resided. It, therefore, 1 follows inevitably that these instructions cannot have the force the rules under the Punjab Civil Servants Act, 1974, and are therefore, incapable of creating rights and obligations enforceable at law.

11. Learned counsel then referred to clause (b) of the proviso to section 4 of the Punjab Service Tribunals Act, 1974 and contended that no appeal lies to the Service Tribunal. Section 4 of the Punjab Service Tribunals Act gives a right of appeal to an aggrieved civil servant against a final order by a departmental authority "in respect of any of the terms and conditions of his service"; the proviso by its clause (b), however, enacts that "no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade". Learned counsel, to support his contention, referred to two cases decided by the Service Tribunal, namely, G.A. Mirza' V. Military Accountant‑General, Rawalpindi (PLJ 1976 Tr.C (Service) 322) and Raja Muhammad Ashraf v. Secy. M/O Education, Islamabad (1977 P L C (C.S.)

96. The view of the above‑mentioned provision of law taken in these cases appears to be that an order of transfer amounts to determining the fitness or other wise of a person to be appointed to or to hold a particular post and is, therefore, not appealable to the Tribunal.

12. For the purposes of this petition, it is not necessary to decide the question of the appealability or unappealability of an order of transfer or whether an order of transfer amounts to determining the fitness or otherwise of a person to hold a particular post. It suffices to say that the petitioner was Headmistress and was, by the impugned order, posted as Headmistress, and there could possible be no question of determining her fitness to hold that post. However that may be ' it has long been settled that so far as suitability for or promotion to a particular post is concerned, this is a matter to be dealt with by the Government its administrative Sloe and is not justiciable in Court of law, "except possibly in a case of proved mala fides". (SeeMuhammad Aboo Abdullah, v. The Province of East Pakistan and another (P L D 1960 Supreme Court (Pak.) 164). This was plainly the reason to excluding recourse to the Service Tribunal in such matters. As before the enactment of the Punjab Service Tribunals Act, 1974, the view was well established . that such matters are not justiciable, it could not have been the intention that though those matters should remain excluded from the jurisdiction of the Service Tribunal, yet they should be within ~ the Constitutional jurisdiction of this Court.

13. Nothing was said before me concerning the allegations constituting the alleged mala fides. By themselves, those allegations do not, in my view, provide the necessary substratum of fact sufficient to establish mala fides.

14. In the result, the petition is dismissed with costs. M.B.A./S-274/L Petition dismissed.