2005 PLP (C (PLC(CS))

The brief facts out of which present writ petition arises are that the respondents transferred the petitioner on 1-10-2004. The petitioner being aggrieved filed representation before respondent No.1 who did not decide the same. The petitioner being aggrieved filed Constitutional Petition No.16306 of 2004, which was disposed of by this Court vide order dated 5-10-2004 and respondents held the order dated 1-10-2004 in abeyance vide order dated 7-10-2004. The respondents made fresh transfer order of the petitioner on 26-1-2005. The petitioner being aggrieved filed this writ petition.

2. The learned counsel of the petitioner submits that the petitioner has already filed representation against the order dated 1-10-2004 before respondent No.1 who did not decide the same till date. The respondents have also held in abeyance the transfer order of the petitioner on 7-10-2004. Thereafter, the respondents have no lawful authority to issue impugned transfer order unless and until representation/appeal of the petitioner be not decided by respondent No.1, therefore, action of respondents is without lawful authority.

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 learned counsel of the parties and perused the record.

5. It is better and appropriate to reproduce the basis facts in chronological order to resolve the controversy between the parties:-- (i) The respondents transferred the petitioner vide order dated 1-10--2004. (ii) The petitioner being aggrieved filed representation before respondent No.1, who did not decide the same. (iii) The petitioner being aggrieved filed Constitutional Petition No.16306 of 2004, which was disposed of by this Court vide order dated 5-10-2004. (iv) The respondents held in abeyance the transfer order vide order dated 7-10-2004. (v) The respondents passed the impugned order on 26-1-2005. The petitioner being aggrieved filed this Constitutional petition.

6. It is admitted fact as alleged by the petitioner that representation/appeal of the petitioner is not decided by respondent No.1 till date. It is settled principle of law that nobody should be penalized by inaction of the public functionaries, as per principle laid down by this Court in Ahmad Latif Qureshi, v. Controller of Examination, Board of Intermediate (PLD 1994 Lahore 3). It is also settled principle of law that in case manner of exercising of power is in violation of law, then it is termed as mala fide, as per principle laid down by the Honourable Supreme Court in Government of West Pakistan and others v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14). It is also settled principle of law that it is the duty and obligation of public functionaries to decide the representations/appeal of their subordinates without fear, favour nepotism, with reasons and within reasonable time as is envisaged by Article 4 of the Constitution read with section 24-A in the General Clauses Act, as per principle laid down by the Honourable Supreme Court in M/s. Aiport Support Service s case (1998 SCMR 2268). This Court has ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law in view of Article 4 of the Constitution, while exercising power under Article 199 of the Constitution, as per principle laid down by the Honourable Supreme Court in H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others (PLD 1981 SC 612) and Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano (2003 SCMR 325).

7. In this view of the matter, let copy of writ petition be sent to respondent No.1, who is directed to decide the representation/appeal of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and any other person, who would be aggrieved by his order, preferably within 2 months after receiving the order of this Court. The petitioner is directed to appear before respondent No.1 in his office at 11-00 a.m. on 16-3-2005 who is directed to decide the representation/ appeal of the petitioner strictly in accordance with law either himself or send the same to competent authority for its decision, who is also directed to decide the representation/appeal of the petitioner strictly in accordance with law in terms of direction of this Court. The impugned order is held in abeyance till the decision of representation/appeal of the petitioner. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period.

8. The learned counsel of the petitioner is directed to hand over copy of this writ petition along with all the annexures to Mr. Muhammad Hanif Khatana, Addl: Advocate-General, who is directed to send the same to respondent No.1 for necessary action and compliance. Office is also directed to provide one copy of this order to the aforesaid learned law officer for onward transmission to respondent No.1 for necessary action and compliance. With these observations, the writ petition is disposed of. Copy Dasti on payment of usual charges. H.B.T./M-957/L Order accordingly.