1990 PLP (C (PLC(CS))

Age for initial recruitment. Primary School teachers BPS‑

7. Deputy District Education Officer of Tehsil concerned. by initial recruitment, 18 25 (iii) On the basis of aforesaid arguments it was asserted that the impugned order of the transfer was totally void and merited to be treated as such. The reliance was placed on Prof. Dr. Syed Adil Hussain v. University of Karachi and others 1989 P L C (C.S.) 527; Muhammad Gul. Kakar; v. Province of Balochistan 1986 P L C (C.S.) 560; Bashir Ahmed v. D.C. Sialkot and others 1985 P L C (C.S.) 1067; Mazhar Hussain v. Province of Punjab P L D 1985 Lah. 394, Muhammad Sadiq v. Director, Agriculture Economics and Marketing, Punjab, Lahore and 2 others 1981 P L C (C.S.) 432, Islamuddin v. Deputy Director of Education 1981 P L C (C.S.) 843; Abdul Karim Khan, Chairman Road Transport Board N.‑W.F.P. v. Jamshed Begum 1976 P L C 314; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others P L D 1975 S C 331.

8. We have heard arguments of the appellant in length. The appeal was no t resisted by the respondent. After hearing we have given the anxious consideration to argument of the appellant and hereinafter proceed to determine the contentions put forward by appellant.

9. Before we proceed to examine the merit of the contention it will be appropriate to ascertain the applicable law.

10. The terms and conditions of the civil servants are given in Punjab Civil Servants Act, 1974 (Act IX of 1974) the relevant section 9 of the ibid is as follows:‑‑ "

9. Postings and transfers.‑‑Every civil servant shall be liable to serve any where 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 body set up or established by any such Government: Provided that, where a civil servant is required to serve in a post outside his service or cadre his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he has not been so required to serve." Under section 23 of ibid, the Governor or any person authorised in this behalf has been‑given powers to make rules which appear to him necessary or expedient for carrying out the purpose of this Act.

11. From the bare examination of section 9 and Rules it is very clear that the transfer is a part of terms and conditions of service. 1t is usual incidence of service. From the examination of law it is clear that the Minister for Revenue who is neither the competent authority nor the supervisory authority for primary teachers in Education Department, has no authority to issue direction for transfer. The Deputy Education Officer herein respondent is a competent authority under Punjab Education Department School Education Recruitment Rules, 1987 to make appointment and transfer of the petitioner. We have therefore no doubt in our mind that Minister for Revenue had no powers to issue I direction to competent authority for the purpose of making transfer.

12. There is another aspect of the matter which persuaded us to accept this appeal. The respondent made a categorical statement that she had passed the order in compliance with the order of Revenue Minister; that she had not passed the impugned order after applying her mind and on the basis of the administrative necessity. The Government in our country is a Government of B laws. The Government functionaries are bound to act within the domain of law. Each and every authority is required to pass the order after the application of its mind. In this case no such order was passed. Therefore we have no hesitation in coming to conclusion that the order was null and void and has no legal effect. In Mazhar Hussain Khan and others v. Government of West Pakistan and 5 others 1983 S C M R 40, it was held "the orders are palpably against the instructions contained in the memorandum in question and are therefore, void ab initio. They were rightly directed to be ignored:" In Bashir Ahmed v. D.C. Sialkot and others 1985 P L C (CS) 1067, High Court quashed the order of Deputy Commissioner, Sialkot whereby the petitioner was compulsory retired under section 12(2) of Punjab Civil Servants Act, 1974 on the premises that the order passed was completely without jurisdiction. In Director, Agriculture Economics and Marketing, Punjab, Lahore and 2 others 1981 P L C (C.S.) 432 the order of compulsory retirement of petitioner Muhammad Sadiq was quashed as having been passed by the authority who was not competent to pass the order of compulsory retirement. In Dr. Syed Adil Hussain v. University of Karachi and others 1989 P L C (C.S.) 527 High Court quashed the order of transfer as the order of transfer was held to be illegal and detrimental to employee's interest.

13. Needless to reiterate the Federal Government and the Provincial Governments wield the executive power under the Constitution and laws. The Government functionaries are the creature of law and bound to obey the law ands exercise their authority strictly within the sphere of law. If the authorities transgress their limits their actions or acts are beyond their sphere and these actions are coram‑non judice and are to be declared as such.

14. Applying the ratio emerging from the said cases to the facts of the case we are clear in our mind that impugned order is without jurisdiction and totally void. The order of learned Single Judge, therefore, cannot be sustained.

15. In peculiar circumstances of this case we accept this appeal, the order of the learned Single Judge dated 2‑7‑1989 is set aside. The impugned order of transfer dated 3‑6‑1989 is declared to have been passed without any lawful authority, it is declared as such. This order shall not preclude the competent authority from making the order of transfer in respect of appellant in accordance with law in future. M.B.A. /S‑677/L Appeal accepted.