1998 PLP (C (PLC(CS))

This judgment will dispose two writ petitions viz. Writ Petition No. 11542 of 1997 brought by Doctor Muhammad Younas and Writ Petition No.13198 of 1997 brought by Dr. Samina Younas, wife of Doctor Muhammad Younas, the earlier writ petitioner.

2. In the first Writ Petition No. 11542 of 1997 brought by Dr. Muhammad Younas, challenge is thrown to the validity of the order dated 8-5-1997 transferring him to District Jail, Rajanpur and posting him there as Medical Officer. By the same order, respondent No. 4, Doctor Javed Munir, Medical Officer, Rajanpur was transferred and posted at District Jail, Multan vice Doctor Muhammad Younas, the petitioner. In the second writ petition, Dr. Samina Younas, the wife, has challenged the order dated 9-7-1996 whereby the Government of Punjab and Home Department suspended its earlier order dated 2-7-1996 purportedly in pursuance to the order of his Court dated 3-7-1996 passed at Multan Bench. Under the earlier orders dated 2-7-1996, Dr. Samina Younas, the petitioner, was allowed to continue as Women Medical Officer in Women Jail, Multan while Dr. Naila laved, respondent No.4, in this writ. Petition (W.P. No. 13198 of 1997) was directed to report back to her parent department namely Social Security Institution, Punjab, Lahore.

3. It is an unusual case where writ petitioners as husband and wife are locked in a bitter battle for place of posting against respondent No.4 in two writ petitions who were also husband and wife and Doctors by profession. Due to consideration of convenience or otherwise the two couples seem to have developed fancy for Multan and are not willing to be posted out and for this purpose are using all conceivable methods including political interference from the highest quarters, to achieve their ends.

4. The case of Doctor Samina Younas seems to be that respondent No.4 being an employee of Social Security Institution is not a civil servant, therefore, cannot claim posting as Women Medical Officer, Women Jail, Multan, not even on deputation. Her further case is that since the impugned order has been passed in pursuance to the interim order of this Court dated 3-7-1996, with the disposal of writ petition as well as the Intra-Court Appeal, the interim order came to an end and, therefore, the respondent department is bound to cancel the order dated 9-7-1996 and restore the earlier one dated 2-7-1996. The submission of Doctor Muhammad Younas, in support of his petition, is that he could not have been posted at Rajanpur without completion of his normal tenure of three years at District Jail, Multan. His further contention is that Doctor Javaid Munir has been able to manoeuvre his posting at Multan at the cost of the petitioner, through use of political influence.

5. Both the petitions are resisted on legal as well as factual grounds. The legal objection of course is the Constitutional bar as contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 as explained in repeated judgments of the Supreme Court of Pakistan. On merits it has been contended that there is no bar to respondent No.4, Doctor Naila Javaid, being sent on deputation to Government of Punjab and thereafter being posted as Medical Officer, Women Jail, Multan. Both the couples of course have pleaded their respective conveniences/ inconveniences in the event they are posted out of Multan.

6. During the course of hearing it transpired that both the couples i.e. writ petitioners and respondents No.4, have been using political and governmental influence from the highest quarters for achieving their ends. I, therefore, sent for the original Government file and have gone through the same. The facts reveal an astonishing state of affairs where the parties have been successfully inviting interference from Minister, Chief Minister, Senior Minister and Speaker, National Assembly to remain at Multan. These Honourable functionaries and holders of Constitutional office have been obliging their respective constituents without pausing for a moment that their intervention may lead to contradictory orders resulting in disturbance of discipline. The pitiable state seems to have been correctly summarised by Home Secretary through his note to the Chief Minister dated 10-6-1996. This note appears at page No.97 of the file. In the note after pointing out the contradictory orders and the predicament of the concerned department, it was suggested that the Chief Minister be pleased to give a final direction in the matter. It was further suggested, "This department, however, proposes that both Doctor Samina Younas and Doctor Naila Javaid be reverted back to their parent department and after suspension proceedings be started under Efficiency and Discipline Rules".

7. It is not clear as to what action, if any, has been taken by the Honourable Chief Minister on this summary. Apparently, it proved a cry in the wilderness. It seems that, thereafter, the battle shifted to the premises of this Court.

8. It is settled law that no civil servant has a right to any place of posting. Under section 9 of the Punjab Civil Servants Act (VIII) of 1974 "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 or any Provincial Government or a local Authority or a corporation or a body set up or established by any such Government .provided".

9. Under the rules/instructions/policies issued from time to time, the matters of posting/transfers/deputations and consequential terms are described in detail. In the presence of the statutory provisions, no civil servant can insist on a particular post or a particular place of Posting Further, Further, it is equally settled that controversy/dispute as regards the posting and transfer forms part of terms and conditions of the employment of a civil servant and under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as Constitution), an affected person can only agitate grievance arising out of terms and conditions of his employment in the Tribunal set up for the purpose and jurisdiction of the High Court under Article 199 of the Constitution will not be attracted, as Article 199 is subject to the Constitution. The only exceptions are when the order is void, ex facie mala fide and such cases as laid down in the case of Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738). The power of judicial review is available in such exceptional cases, in spite of the Constitutional ouster.

10. In this case the constraint of Constitutional bar is there but is sought to be avoided by urging that the impugned orders are mala fide on the face of it as the same have been passed in disregard of law and possibly are tainted with political intervention. The argument is open to serious debate but assuming that the Constitutional bar is not attracted, in my considered view, the direction as prayed for, can be withheld to both the petitioners on the ground that their conduct is clearly unworthy of civil servant inasmuch as both of them in fact both the respondents also are guilty of inviting political intervention in a matter in which they have no right under section 9 of the Punjab Civil Servants Act, 1974. The departmental file speaks volumes about this and in fact during the course of hearing, both the sides have not disputed that their hands are tainted with this intervention. It may be noted that under Rule 19 and Rule 29 of the Government Servants (Conduct) Rules, 1966, a civil servant is expressly barred from bringing or attempting to bring political or outside influence directly or indirectly to bear on Government or any Government servant in support of any claim arising in connection with his employment as such. Both the couples/parties have acted clearly in violation of the above code of conduct. Such litigant cannot expect nor can be extended relief in exercise of equitable Constitutional jurisdiction. Therefore, notwithstanding the assumption that Constitutional bar is not attracted and notwithstanding the so-called weight to the arguments of the petitioners (which I am deliberately not appraising) both the petitioners arc disentitled to any relief from this Court on account of their acting in breach of the West Pakistan Government Servants (Conduct) Rules, 1966 as noted above and for this purpose respectfully rely on well-known case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236). The summary put up before the Chief Minister on 10-6-1996 by the Home Secretary, reflects an agonising state of affairs and one can only wish that the Chief Minister had acted in the manner recommended by the Home Secretary. 10-A. For the reasons noted above, these two petitions are dismissed, leaving the parties to bear their own costs. It is, however, directed that copy of this judgment shall be sent to the Chief Secretary, Government of Punjab, Health Secretary and Home Secretary Government of Punjab for their information and for such action as they may like to initiate against both the petitioners as well as both respondent No.4 for having freely breached Rule 19 and Rule 29-of -the West Pakistan Government Servants (Conduct) Rules, 1966. This Court can only hope that a strict view of the matter will be taken as such a view is likely to improve the discipline within service. A.A./S-185/L Petitions dismissed.