1998 PLP (C (PLC(CS))

Ch. Mushtaq Ahmad Khan for Petitioners. Farooq Bedar, Addl. A.-G. and Rana Muhammad Arshad, Addl. A.-G. for Respondents. Dates of hearing: 12th, 18th, 23rd and 24th November, 1991. This judgment shall dispose of sixty two writ petitions bearing Nos. 7630 of 1991, 7634 of 1991, 7635 of 1991, 7637 of 1991, 7639 of 1991, 7640 of 1991, 7642 of 1991, 7643 of 1991, 7646 of 1991, 7647 of 1991, 7649 of 1991, 8112 of 1991, 8115 of 1991, 8114 of 1991, 8113 of 1991, 8116 of 1991, 8117 of 1991, 8118 of 1991, 8119 of 1991, 8120 of 1991, 8121 of 1991, 8122 of 1991, 8123 of 1991, 8124 of 1991, 8125 of 1991, 8126 of 1991, 8164 of 1991, 8165 of 1991, 8166 of 1991, 8167 of 1991, 8168 of 1991, 8169 of 1991, 8581 of 1991, 8582 of 1991, 8583 of 1991, 8584 of 1991, 8023 of 1991, 8024 of 1991, 8025 of 1991, 8026 of 1991, 8163 of 1991, 9051 of 1991, 6909 of 1991, 7575 of 1991, 7430 of 1991, 9251 of 1991, 10023 of 1991, 8250 of 1991, 7843 of 1991, 7786 of 1991, 7722 of 1991, 8130 of 1991, 8160 of 1991, 8241 of 1991, 8233 of 1991, 8476 of 1991, 9346 of 1991, 9813 of 1991, 7798 of 1991, 7826 of 1991, 7778 of 1991 and 10201 of 1991 all of which are directed against almost identical orders passed by Education Authorities cancelling the previous transfer orders of the petitioners.

2. Petitioners in all these petitions are P.T.C. Teachers. They were working in different Government Primary, Middle and High Schools in various Districts when a project for improvement of primary education to be financed through foreign aid designated as Primary Education Project-III was initiated and the Government of Punjab vide Memo. No. SO(F.A.)1-61/91, dated 22nd January, 1991 (Annexure ' A' with the written statement in Writ Petition No. 7630 of 1991) sanctioned a large number of posts of supervisory and teaching staff commonly known as S.N.E. posts. These posts, according to the policy decision of the Government, were to be filled in by direct recruitment through Departmental Selection Committees at Tehsil level. It, however, appears that at the relevant time, direct recruitment was banned and the petitioners, therefore, either managed their transfers or the Authorities transferred them against the newly created/sanctioned S.N.E. posts. Most of these transfers were made in the month of February, 1991. When the matter came to the notice of the Chief Minister, Punjab, he took a serious view of the transfers in question and directed that all the orders of transfers made against S.N.E. posts be withdrawn and the posts kept vacant till the ban on recruitment is lifted. In compliance with the Chief Minister's direction, the concerned Authorities in the Education Department cancelled/withdrew orders of transfers/adjustments passed earlier and directed the petitioners to report back at their previous places of posting. These orders have been brought under challenge in the present Constitutional petitions. 3.I have heard the learned counsel for the petitioners as also the learned Additional Advocate-General on behalf of the respondents. Learned Additional Advocate-General raised a preliminary objection based on the provisions of Article 212 of the Constitution. His contention was that the petitioners were the civil servants. The matter of transfer agitated by them in these petitions essentially relates to the terms and conditions of their service and as such their remedy lay before the Service Tribunal which has exclusive jurisdiction in such matters by virtue of Article 212 of the Constitution read with section 3 of the Punjab Service Tribunals Act (IX of 1974). Reliance for this submission was placed on M. Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22), Iqan Ahmed Khurram v. Government of Pakistan (PLD 1980 SC 153), Mansoor Elahi v. North-Western Frontier Province (PLD 1980 Peshawar 81), Abdul Bari v. Government of Pakistan (PLD 1981 Karachi 290), Collector, Central Excise and Land Customs v Aslam Ali Shah (PLD 1985 SC 82), Begum lsmat Azhar v. Punjab Government (PLD 1987 Lahore 256) and- Superintendent of Police v, Muhammad Latif (PLD 1988 SC 387).

4. Ch. Mushtaq Ahmad Khan, Advocate, who mainly argued the case on behalf of the petitioners contended that the impugned orders though purporting to have been passed by the Deputy Education Officers were, in fact, issued on the direction of the Chief Minister who is not competent Authority in the matter of transfers of the petitioners. Learned counsel argued that only an order passed by a 'departmental authority' within the meaning of the Explanation appended to section 4 of the Punjab Service Tribunals Act is appealable before, the Service Tribunal. According to the learned counsel, impugned orders in these cases could not be said to have been passed by the competent 'departmental authorities' and, therefore, appeals could not be maintained before the Service Tribunal. It was further contended by the learned counsel that since the impugned orders were not passed by the Deputy Education Officers after independent application of their own minds but on the direction of the Chief Minister, they were complete nullity and as such this Court would have the jurisdiction to interfere under Article 199 of the Constitution notwithstanding the provisions of Article

212. Reliance for these submissions was placed on Ahmad Khan v. Member (Consolidation), P.O.R. (PLD 1990 SC 1070), Syed Saeed Hussain Shall v. Punjab Province, etc. (1981`PLC (C.S.) 190), Abdur Rauf v. Director, Local Government and Rural Development, Sargodha and another (1989 PLC (C.S.) 436) and Faiz Muhammad v. PRTB-S (1985 PLC (C.S.) 868). 5 1 have given my anxious consideration to the submissions made by the learned counsel for the parties with respect to maintainability of these petitions and have perused the case-law cited by them. Law by now is fairly well-settled that in matters relating to terms and conditions of service of a civil servant which lie within the competence of Service Tribunal? jurisdiction of all other Courts including this Court stands completely ousted by virtue of Article 212 of the Constitution. Reference may usefully be made to Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lahore 545) wherein it was held that in view of the jurisdiction ouster clause of Article 212 of the Constitution, petition under Article 199 of the Constitution pending before this Court had abated. This view was approved by the Supreme Court of Pakistan in the case of "M. Yameen Qureshi" cited by the learned Additional Advocate-General. In the case of Iqan Ahmed Khurram" PLD 1980 SC 153), Supreme Court of Pakistan while dealing with the objection regarding the non-maintainability of a petition under Article 199 of the Constitution observed that "the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with a full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered". A Full Bench of the Peshawar High Court in Mian Amanul Mulk v. N.W.F.P. through Chief Secretary (PLD 1981 Peshawar 1) held that the provisions of Article 212 of the Constitution "on the very language oust the jurisdiction of all other Courts" and "an order of a departmental authority even, if it is without jurisdiction or is mala fide can be challenged before the Tribunal" and the jurisdiction of all - other Courts is specifically ousted. In yet another case reported in PLD 1983 SC

100. Supreme Court of Pakistan held that "under the new dispensation, the Service Tribunal was made the sole arbiter of all disputes relevant to the terms and conditions of civil servants and the jurisdiction of ordinary Courts was altogether excluded in these matters". Similar view was expressed in the cases reported in PLD 1981 Karachi 290, PLD 1985 SC 82 and PLD 1988 CC' 387 retied upon by the learned Additional Advocate-General. Reference may particularly be made to the case of "Begum Ismat Azhar" cited by the learned Additional Advocate-General wherein it was held that "posting and transfer being a necessary condition of service is outside the scope of Constitutional jurisdiction of this Court, as enshrined in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973".

6. Contention raised by the learned counsel for the petitioners may now be examined. There can be no cavil with the proposition that only the order of the 'departmental authority' can be challenged in appeal before the Service Tribunal. It is not denied that the impugned orders were issued by the authorities competent to transfer the petitioners. The mere fact that these orders were issued on the direction of the Chief Minister, in my view, would B not render those orders of a non-departmental authority. They would nonetheless remain appealable before the Service Tribunal and the argument that they were passed on the direction of the Chief Minister without independent application of mind by the authorities concerned would be a moot question in the appeal It is settled principle of law that an anneal lies from decision without jurisdiction just as an appeal lies from a decision with jurisdiction. Refer Ashfaq v. The State (PLD 1973 SC 368: It was also held 'in the case of ' Muhammaa Aslam Bajwa' referred to above that right of appeal as given in section 4 of the Service Tribunals Act was available even against orders which are without jurisdiction and, it was for the Service Tribunal decide whether the order impugned before it was with jurisdiction or without jurisdiction. Words "competent to make an order" used in the Explanation to section 4 were also interpreted in that case and it was held that these words "do not mean that a particular order involved in a given case was competently made, but simply indicate that if in a proper case the said authority was competent to pass an order in respect of the kind of matters involved therein, then his order will be appealable though in that particular case such an order according to the appellant could not have been passed. The defect in competency in other? words will provide a good ground for appeal rather than, negate it. That it is in this context of the Service Tribunals Act of 1973 are to be read is clear from Article 212 of the Constitution which states that it is the subject-matter of a case on which will depend the ouster of jurisdiction of other Courts. If the subject ?matter of Courts or Tribunals of exclusive jurisdiction is the 'terms and conditions of service' or 'discipline' "and relates to persons who are or have been in the service of Pakistan then the ouster of jurisdiction of other Courts is complete". Brief reference may now be made to the cases cited by the learned counsel for the petitioners. The view expressed in the case of "Syed Saeed Hassan Shah," that the bar contained in Article 212 against maintainability of writ petition in service matters does not operate in a case where the order impugned is void appears to be, if I may say so with utmost respect, contrary to the respondent tread--o?-authority. In the case of "Abdul Rauf" question of appealability of the impugned order before the Service Tribunal was not at all examined. Case of "Fait Muhammad" is also of no help to the learned counsel for the petitioners as the order impugned therein was passed by wholly incompetent authority. The case of "Ahmad Khan v. MBR" does not relate to service matter at all. 7 In the aforesaid view of the matter, since the petitioners are admittedly civil servants and their grievance is germane to the terms and conditions of their service, they could well challenge the impugned orders in appeal before the Service Tribunal which has exclusive jurisdiction in such matters. That being so, jurisdiction of this Court stands completely ousted by virtue of Article 212 of the Constitution.

8. Learned counsel for the petitioners sought to assail the validity of the impugned orders mainly on the ground that the transfer orders having been acted upon, locus poenitentiae was not available to the respondents to withdraw/cancel those orders. The contention appears to be misconceived, as the petitioners had no vested right to be posted at any particular place. Under section 9 of the Punjab civil servants Act, 1973, a civil servant is liable to serve at any place in the Province and, therefore, he can be transferred from one place to the other, of course, in exigencies of service and for administrative reasons. In these cases, petitioners were admittedly transferred against the posts, which were meant to be filled in by initial recruitment. It is also stated in the written statements filed by the respondents that the newly sanctioned posts were in PBS-'

7. In the circumstances, the impugned order directing the petitioners to report back to their previous places of posting, prima facie, do not appear to be open to any exception moreso in writ jurisdiction.

9. In view of what has been said above, interference by this Court in its Constitutional jurisdiction is not warranted. Writ Petitions noted to para.1 above thus stand disposed of with no order as to costs. H. B. T. IT-21/L ???????????????????????????????????????????????????????????????????????????????? Petitions dismissed.