2003 PLP (C (PLC(CS))

Abdul Wahab s case PLD 1989 SC 508 ref. (d) Punjab Civil Servants Act (VIII of 1974)

S.9

Constitution of Pakistan (1973), Arts. 199 & 212

Punjab Service Tribunals Act (IX of 1974), S.4

Constitutional petition--Transfer

Non disposal of appeal/representation filed before Competent Authority by civil servant against his transfer order

Validity

High Court in spite of bar contained in Art.212 of the Constitution read with S.4 of Punjab Service, Tribunal Act, 1974, had ample jurisdiction to give direction to public functionaries to act strictly in accordance with law

High court directed Competent Authority to decide appeal/representation of civil servant in accordance with law within specified time after providing proper hearing to all concerned. Fazal Elahi's case PLD 1980 SC 171 ref. H.M. Rizvi's case PLD 1981 SC 612 ref. Ch. Muhammad Rafique Warraich for Petitioner. Muhammad Hanif Khatana, A.A.-G. (on Court's call). The petitioner has challenged the vires of transfer order dated 3-2-2003 through this Constitutional petition.

2. The learned counsel of the petitioner submits that the impugned order has been passed by the respondents against the petitioner in violation of transfer policy. He further submits that the petitioner performed his duties diligently, honestly and passed the necessary orders with regard to the property of Waqar Tahir. Waqar Tahir submitted a complaint against the petitioner which was forwarded by Nazim and the impugned order was passed by the respondents under the direction of Nazim, therefore, the same is not sustainable in the eyes of law. He further submits that the impugned order was passed by the respondents mala fide. The petitioner being aggrieved tiled an appeal/representation before respondent No. 1, who did not decide the same till date. He further submits that the petitioner has to retire on 4-5-2003 on attaining the age of superannuation, therefore, the impugned order is without lawful authority. In support of his contention, he relied upon Fazal Elahi's case (PLD 1980 SC 171).

3. The learned Law Officer entered appearance on Court's call. he submits that the writ petition is not maintainable.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

5. The matter pertains' to the terms and conditions of service of the petitioner. The petitioner is admittedly, a civil servant, therefore, the writ petition is not maintainable in view of bar contained in Article 212 of the Constitution read with section 4 of the Service Tribunals Act, as per principle laid down by the Hon'ble Supreme Court in "Nazir Hussain's case" (1992 SCMR 1843). It is also settled principle of law that the question of mala tide can be raised before the competent forum by filing of appeal, as per principle laid down by, the Hon'ble Supreme Court in Muhammad Yamin's case (PLO 1980 SC 22). It is also settled principle of law that the writ petition is not maintainable qua the intermediate stages, as per principle laid down by the Hon'ble Supreme Court in Abdul Wahab's case (PLD 1989 SC 508). In spite of bar contained in Article 212 of the Constitution read with section 4 of the Service Tribunals Act, this Court has ample power to give direction to the public functionaries to act strictly in accordance with law, as per principle laid down by the Hon'ble Supreme Court in H.M. Rizvi's case (PLD 1981 SC 612). It is pertinent to mention here that the judgment relied by the learned counsel of the petitioner is distinguished on facts and law, therefore, the same is not applicable in the facts of the present case. 5A. In this view of the matter, let copy of writ petition be sent to respondent No.1, who is directed to decide the appeal/representation of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including the petitioner, respondent No.4 and any other person, who would be aggrieved by his order, preferably within 20 days after receiving the order of this Court. The petitioner is directed to appear before respondent No. 1 in this office at 11-00 a.m. on 10-3-2003 who is directed to decide the appeal/representation of the petitioner strictly in accordance with law in the terms of aforesaid direction of this Court. He is further directed to submit his report to the Deputy Registrar(J) of this court within stipulated period.

6. The learned counsel of the petitioner is directed to hand over copy of writ petition alongwith all the annexures to Mr. Muhammad Hanif Khatana, A.A.-G. who is directed to send the same to respondent No. 1 for necessary action and compliance. With there observations, the writ petition is disposed of. S.A.K./Q-30/L Order accordingly.