2019 PLP (C (PLC(CS))

MUHAMMAD NASIR MAHFOOZ, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following relief:- It is, therefore, prayed that by accepting this petition, a) A writ of certiorari may please be issued to declare the impugned refusal/inaction of respondent No.1 to count the services of petitioner from 17.3.1992 to 09.03.2011 which he has served in District Charsadda as illegal, unlawful and is thus ineffective upon his rights. b) A writ of mandamus may be issued to respondent No.1 to count the services of petitioner from 17.3.1992 to 09.03.2011 towards his seniority and he may be promoted to BPS-15 accordingly and all outstanding arrears/back benefits may be granted to the petitioners. c) A writ of mandamus may be issued to the respondent No.1 to implement the orders of respondent No.3 which were conveyed and intimated to him vide letters dated 30.01.2013, 22.03.2013, 30.8.2016 in its true letter and spirit. d) Any other relief deem fit and appropriate in the circumstance of the case may also be granted.

2. Brief facts of the instant writ petition are that petitioner was appointed on 17.3.1992 as PST Teacher and was performing his duties in District schools of Charsadda when respondent No.3 wrote a letter to the Executive District Officer, Charsadda (now called District Education Officer), whereby petitioner was required to serve in the litigation branch of Directorate of Elementary and Secondary Education, Peshawar. Pursuant to this letter, the petitioner was transferred on 09.3.2011, the letter of transfer also contained a condition that the seniority of petitioner will be determined at bottom of seniority list under the rules. Thereafter, petitioner continued to perform his duties in the litigation branch, when he found that his name has not been mentioned in a proper place in the seniority list of PST of District Peshawar, he filed an appeal/representation to respondent No.3 on 30.1.2013. Respondent No.3 allowed the same and directed respondent No.1 to include the name of petitioner accordingly and to consider his name for promotion/up-gradation. The said order was again issued through reminder letter on 04.2.2013 but the same was ignored by respondent No.1. Petitioner again submitted departmental appeal for implementation of the said order which was intimated to respondent No.1 vide letter dated 22.3.2013. Despite sufficient wait for three long years for the implementation of order of respondent No.3 petitioner again filed departmental appeal/ representation on 11.8.2016 which was also allowed and the order was communicated to respondent No.1 on 30.8.2016 but still he was adamant to consider his request, hence the instant writ petition.

3. We have heard learned counsel for the parties and have gone through the available record with their valuable assistance.

4. In order to resolve the controversy at hand, specific reference to initial appointment order of petitioner on 17.03.1992 and his transfer order from District Charsadda to District Peshawar on 09.03.2011 must be made in addition to other documents on file and thus draw an inference for the entitlement of petitioner to the discretionary relief as prayed for in the instant constitutional petition.

5. When the petitioner was transferred to Peshawar and his seniority was not determined according to his entitlement he filed departmental appeal which found favour with respondent No.3 and on 30.1.2013 his name was included in the seniority list of PST (male) and considered for promotion/up-gradation, astonishingly, after two years of his transfer. The same official vide letter dated 04.2.2013 addressed a letter to respondent No.1 for placing his name in the seniority list of officials of District Charsadda, but he was to work at Peshawar. This again persuaded the petitioner to file departmental appeal, which was allowed vide letter dated 22.3.2013 but it appears that the order had no clarity as to whether his name be placed in the seniority list of District Peshawar or Charsadda, so he moved a further departmental appeal, which was allowed on 30.8.2016 vide letter addressed to respondent No.1. This process has consumed five years of previous service period of petitioner but he could not find suitable place equal to his colleagues/contemporaries as well as juniors who are now serving in BPS-14 and BPS-15 but he is still serving in BPS-12, despite having no adverse service record but only due to the adamant attitude of respondent No.1 who is not abiding by the decision of his senior officials. The same position is reflected in a letter of the office of respondent No.3 addressed to respondent No.1 on 03.8.2017, the last in the series of correspondence.

6. Learned AAG for the respondents relied on Rule 8 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, which regulates inter-Provincial transfer and referred to comments that the petitioner is serving at Peshawar on his own sweet will. For convenience sake, Rule-8 is reproduced as under:-

8. Inter-Provincial Transfer.

(1) Persons holding appointment in BPS 1 to 15 under Federal Government and other Provincial Government may, in deserving cases, be transferred to equivalent posts under these rules: - Provided that: (i) The Federal Government or the Government of the Province concerned, as the case may be, has no objection to such a transfer; (ii) The person seeking transfer possesses the requisite qualification and experience and the post to which his transfer is intended can, under the rules, be filled by transfer; (iii) The person concerned holds appointment to the post in his parent Department on regular basis; (iv) The person concerned is a bona fide resident of the Khyber Pakhtunkhwa; (v) A vacancy exists to accommodate the request of such a transfer; and (vi) Provided further that in most deserving cases, the merit of which shall be determined on case to case basis and the decision of the Competent Authority in that behalf shall be final, Government may allow transfer of a civil servant in BPS-16 and above, subject to the aforesaid conditions. The ibid rule is not applicable to the case of petitioner as it essentially relates to inter provincial transfers and not transfer within the Province or inter Districts. This is the conclusion that can be drawn from the cumulative effect of bare reading of all the sub-rules quoted above and it is further affirmed by the use of words in sub-rule (2) of Rule-8, "A person so transferred shall be placed at the bottom of the cadre strength which he joins for the purposes of determining his seniority vis-a-viz other member borne on the cadre". Every citizen has certain fundamental rights of whom the right to be treated in accordance with law and to have equal protection of law is of primary importance. After addition of Article-10-A of right to fair trial in the Constitution, the same has now assumed multitudinous character. Where availability of alternate remedy is a question before entertaining a writ petition then the actions of officials challenged are to be considered first. In case it transpires from record that the actions are not within the confines of law or are based on some extraneous reasons, then the petitioner may be granted such relief as prayed.

7. Therefore, we are not impressed by the arguments of learned AAG. Furthermore, the question of maintainability in view of the bar contained in Article-212 of the Constitution is also not tenable because petitioner only seeks a grant of writ of mandamus against respondent No.1 to implement the order of respondent No.3 and there is no order to fall within the parameters of aggrieved person under section 4 of the K.P. Services Tribunal Act. Consideration for promotion does not fall within the terms and conditions of service as the eligibility is still to be considered by the Departmental Promotion Committee.

8. We feel that the rights of seniority of petitioner to be considered qua his other colleagues has been made less secure due to the actions of respondents in general and respondent No.1 in particular. Petitioner was serving as PST Teacher in BPS-7 and being holder of LL.B. Degree besides, Masters, respondent No.3 required his services in litigation branch, Directorate of Elementary and Secondary Education, Peshawar so he was transferred vide letter dated 7.5.2010 and later on posted at GPS Ander Shehr, Peshawar on 09.3.2011. He expressed his grievance of seniority through a departmental appeal/ representation for including his name in the seniority list because after his transfer on need basis by the respondents he was to be placed in the seniority list of the officials serving in District Peshawar.

9. The grievance of petitioner can be redressed in the instant petition by directing respondent No.1 present in court to abide by the decision of his senior officer and treat the petitioner at par with his other colleagues who are appointed on the same date in the year 1992 for the purpose of seniority as well as promotion. There shall be no order as to costs. This writ petition is allowed in the above terms. ZC/250/P Petition allowed.