2019 PLP (C (PLC(CS))

SHAKIL-UR-REHMAN KHAN, J.

The instant writ petition has been filed with the following prayer:- "Under these circumstances it is respectfully prayed that this writ petition may kindly be accepted and the Respondents Nos. 1 and 2 be directed to decide the representation of the Petitioner (Annex-C&D) as early as possible and set aside the order dated 24.12.2018 (Annex-B) to the extent of the Respondent No.4 by which the petitioner has been ignored who scored 50.70 marks and Respondent No.4 has been transferred /posted who obtained only 25 marks. Any other relief to which the Petitioner is entitled too may also be granted."

2. Relevant facts for the decision of the instant writ petition are that the Petitioner is serving as Elementary School Teacher (G), Government Girls High School 53/12-L, Tehsil Chichawatni, District Sahiwal. Learned counsel for the Petitioner stated that District Education Officer (Elementary) Women, Sahiwal prepared a tentative merit list for transfer of EST/SESE, according to which the petitioner secured 50.70 marks while Respondent No.4, who is stated to be working as EST (Arabic) Government Girls High School situated at 44/12-L, Tehsil Chichawatni, District Sahiwal secured 25 marks. He further explained that Chief Executive Officer, District Education Authority, Sahiwal (Respondent No.2) vide order dated 24.12.2018 and against the merit list, transferred Respondent No.4. In this view of the matter, the Petitioner submitted an application to Respondent No.2/Chief Executive Officer, District Education Authority, Sahiwal on 29.12.2018, but no action has been taken on the same so far. Subsequently, the Petitioner on 08.01.2019 submitted an application before the Commissioner Sahiwal Division, Sahiwal/Chairman Complaint Redressal Cell, Sahiwal (Respondent No.1) and so far no order on the said application has been passed by any competent Authority. Learned counsel further stated that the Petitioner is entitled for transfer/posting on merit according to the list prepared by Respondent No.3/District Education Officer (Elementary) Women, Sahiwal.

3. In view of above circumstances, learned counsel for the Petitioner stated that Respondents Nos.1 and 2 be directed to decide the representations of the Petitioner as early as possible while setting, aside the order dated 24.12.2018 to the extent of respondent No.4 through which the Petitioner has been ignored despite securing much higher marks from the said Respondent No.4.

4. Learned counsel was asked, whether the petitioner is a civil servant and if so, how the instant writ petition is maintainable in view of bar contained in the Article 212 of the Constitution of Islamic Republic of Pakistan. In response, learned counsel for the Petitioner admitted that the Petitioner, as well as, Respondent No.4 are civil servants, however, as far as, maintainability of the instant writ petition is concerned, he relied upon the cases reported as Secretary, Revenue Division and others v. Muhammad Saleem (2008 SCMR 948) and Muhammad Saleh Asim v. Secretary Schools Education (2009 PLC (C.S.) 44) and stated that a direction can be issued to the respondents.

5. Learned law officer has vehemently opposed the writ petition on the basis of provisions of Article 212 of the Constitution Islamic Republic of Pakistan, 1973.

6. Arguments heard. Record perused.

7. I have gone through the above cited two reported judgments relied upon by learned counsel for the Petitioner but both of them are distinguishable and clearly not applicable to the facts and circumstances of the present case. Judgment reported as Secretary, Revenue Division and others v. Muhammad Saleem (2008 SCMR 948) deals with the matter relating to completion of Performance Evaluation Reports ("PERs"), which were incomplete and therefore, the promotion case of the Respondent was withheld. The Hon'ble Apex Court noted that Respondent having no legal remedy had approached the learned High Court, which ultimately found that the Reporting Officer, as well as, countersigning officer were biased as they were daggers drawn against each other due to criminal proceedings, therefore, PERs of the relevant period relating to the Respondent were not expected to be impartial, honest and fair. In such view of the matter, the Hon'ble Apex Court did not agree with the argument that the issue related to terms and conditions of service of the Respondent, hence the jurisdiction of this Court was barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The Hon'ble Apex Court further observed as under:- " .Before the application of the Article, the terms and conditions of person in the Service of Pakistan, are to be displayed which would prohibit that exercise of power and jurisdiction. It may be observed that each and every order/direction issued by the Superior Courts cannot be presumed and assumed to be in contravention of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, because the inherent and other powers and jurisdictions, conferred by law and Constitution, can be restrained to be exercised when the matter/case is shown to have fallen within the domain and scope of prohibition. The jurisdictions vested with the apex and Superior Courts are general, wider in scope and extent while the constraints/prohibitions are narrower in their applications and dimensions Jurisdiction of Superior Courts are to be stretched to take into its fold all the disputes to be resolved while limitation of jurisdictions and powers are to be squeezed and kept to the minimum extent and length. This is what we can call the rule of interpretation of jurisdiction, scope and limitations of Superior Courts in Pakistan. Viewed with this view, the learned counsel for the Department has not been able to display as to how this direction, which has been issued by the learned Judge of the aforementioned High Court, has come within the realm of prohibited exercise of jurisdiction or it can be found in the powers of jurisdiction of Administrative Courts or Tribunals constituted under the Civil Servants Act of 1973." In the case reported as Muhammad Saleh Asim v. Secretary Schools Education (2009 PLC (C.S.) 44) the matter before this Court related to transfer of a School Teacher due to political pressure of the President of Punjab Teachers Union, District Gujrat. This Court observed as follows:- "

5. In transfer matters of course the remedy for the aggrieved civil servants lie before the Service Tribunal and for that the aggrieved civil servants have to file departmental appeal/representation within 30 days of the issuance of transfer order and then they have to wait for a period of 90 days or to wait till the disposal of departmental representation before invoking the jurisdiction of Service Tribunal, meaning thereby that the aggrieved civil servant can knock the door of Service Tribunal only after a lapse of certain periods and fulfillment of condition of departmental appeal/representation, whereas for that very particular period the petitioner cannot be left remediless, provided the aggrieved person has genuine claim which could be established through some documentary evidence like:-- (i) Transfer order passed not in the exigency of service but on direction of some MPA/MNA/Minister. (ii) The civil servant is made a rolling stone by way of frequent transfer within days/weeks. (iii) If the aggrieved person is going to be superannuated in a year or so but he is dislocated from his place of posting without any cogent reason like complaint etc. against him and that too without enquiring into the said allegations" In view of the above, it was observed that only in such like situations an aggrieved civil servant may invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and accordingly a direction may be issued to the concerned authority. It is evident that the facts and circumstances of the above case are completely different from those of the instant matter.

8. On the other hand, keeping in view the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, jurisdiction of this Court is clearly barred and no such direction can be given to the Respondents herein. Reliance in this regard is placed on National Assembly Secretariat through Secretary v. Manzoor Ahmed and others (2015 SCMR 253), Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456), Rai Ahmad Ali v. Province of Punjab and others (1999 SCMR 1832), Faiz Ahmed v. Government of the Punjab and others (1998 SCMR 436), Ayyaz Ajum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169), Fazal Ahmad Ranjha and 28 others v. Government of the Punjab through, Secretary Education (Schools), Lahore and 39 others (2016 PLC (C.S.) 1209), Shahzad Tariq v. Secretary Schools (Education Department) Government of Punjab and 9 others (2012 PLC (C.S.) 284), Dr. Muhammad Shahid v. Government of Punjab through Secretary (Health), Punjab, Lahore and 5 others (2012 PLC (C.S.) 323), Muhammad Nadeem Shakir v. Government of Punjab, Communication and Works Department, Lahore through Secretary and 5 others (2012 PLC (C.S.) 606), Mulazim Hussain v. Director General Agricultural Research, A.A.R. Institute Faisalabad and 3 others (2010 YLR 1032) and Dr. Ghazanfarullah and 2 others v. Secretary Health, Government of the Punjab, Lahore and 6 others (2010 PLC (C.S.) 51).

9. The preposition of law in the above noted cases related to posting and transfers of civil servants, which were challenged through the constitutional petition before this Court. The outcome of all these cases was that this Court had no jurisdiction to entertain such cases in view of the bar contained in the Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Relevant portion of the judgment reported as Dr. Ghazanfarullah and 2 others v. Secretary Health, Government of the Punjab, Lahore and 6 others (2010 PLC (C.S.) 51) is reproduced hereunder, which clearly defined the bar contained in the Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and the question relating to the jurisdiction to be exercised under the Article 199 of the Constitution of Islamic Republic of Pakistan, 1973:- "...Article 199 is "Subject to the Constitution", while Article 212 being a non obstante Article prevails over Article

199. Article 212 clearly states that "no Court Shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends". Therefore, this Court has no jurisdiction to entertain a matter that stands barred under Article 212 of the Constitution. The arguments of the counsel that he has been left remediless after filing his representation under section 4 of the Punjab Service Tribunals Act, 1974 is without any force. The filing of the representation before a departmental authority is itself initiation of the remedy under section 4(1)(a) of the Service Tribunals Act, 1974. The pendency of the representation for a maximum period of 90 days is a part of the procedure/remedy prescribed for a civil servant which then culminates into right to file an appeal. In fact the pendency of the representation before the departmental authority cannot be taken to mean that the petitioners have left remediless. In fact the petitioner have invoked the remedy and the remedial process has been set in motion. For the sake of arguments even if a writ is issued during this period of 90 days it will make a mockery of the statutory process provided under section 4(1)(a) rendering the final right to appeal in 90 days totally meaningless. Constitutional jurisdiction cannot be put to use to frustrate statutory remedial process as in the present case. In any case this argument is totally fallacious. Once this Court has no jurisdiction under Article 212, the same cannot be conferred on it just because after filing the representation under section 4 of Punjab Service Tribunals Act, 1974 the Petitioner has been rendered "remediless" it is not the question of alternate remedy but of bar of jurisdiction. In fact Article 199 cannot be set in motion due to the jurisdictional bar, therefore the question of alternate remedy or mala fide or political consideration or the nature of grievance does not even begin to arise. This distinction between bar of jurisdiction and exercise of judicial power must be clearly understood.

11. It is often argued before this Court that either the order which pertains to the terms and conditions of a civil servant is mala fide, based on political consideration or against policy and prayer is made that a writ be issued setting aside such an order. The importance of the jurisdictional bar in Article 212 is conveniently ignored and therefore, the distinction between judicial power and jurisdiction is not kept in sight. If there is no jurisdiction, the question of exercise of judicial power does not arise."

10. In view of the above, the order dated 24.12.2018 cannot be set aside as prayed for by the learned counsel for the Petitioner. As per the record, the petitioner has already approached the Respondents Nos.1 and 2 through applications, this Court is confident that the same will of course be decided on merits and it would then be open for the Petitioner to approach the relevant forums including the appellate authority, as well as, the learned Service Tribunal having exclusive jurisdiction, as far as terms and conditions of her service are involved.

11. For the above reasons, the instant writ petition is dismissed in limine. ZC/A-67/L Petition dismissed.