P L D 1993 Lahore 286 (PLP)

This judgment will dispose of the following four connected writ petitions as almost identical questions of fact and law are involved in all o them:-- (1) W.P. 2656-92 Dr. Hanif Arif. v. Secretary Health, Government of Punjab and others. (2) W.P.2657-9 Dr. Ashiq Parvez v. Secretary, Health Government of Punjab and others. (3' W.P. 2739-92 ,Dr. Abdul Majid Chohan. v. Secretary, Health Governmentt of Punjab and others. (4) W.P.2740-9 Dr. Mohammad Ashfaq v. Secretary, Health Government of Punjab and others.

2. Dr. Hanif Arif, petitioner in Writ Petition No. 2656-92 was an Associate Professor and the Head of Eurology Department in Nishtar Medical College, Multan. He was also Visiting Surgeon, Nishtar Hospital, Multan where he was posted for the last 10 years. Dr. Ashiq Parvez, petitioner in Writ Petition No. 2657-92, was a Professor of Orthopedic Surgery in the Nishtar Medical College, Multan and was also a Visiting Consultant in Nishtar Hospital, Multan where he was posted for the last 13 years. Dr. Abdul Majid Chohan, petitioner in Writ Petition No. 2739-92 was posted as Senior Medical officer/Dispensary Superintendent in Nishtar Hospital, Multan and his job, according to the averments made in the writ petition, was to arrange supply of m dicines to the patients through Registrar/Incharge, private and family wards/other wards. Dr. Muhammad Ashfaq, petitioner in Writ Petition No.2740-92 was posted as Senior Registrar, Incharge Private Family Wards, Nishtar Hospital, Multan. All the petitioners have been transferred from Nishtar Medical College, Multan vide orders dated 27th August, 1992 issued by the Secretary Health, Government of Punjab. Dr. Hanif Arif has been transferred to Post-Graduate Medical Institute, Lahore and Dr. Ashiq Parvez to Rawalpindi Medical College, Rawalpindi as Professor of Orthopaedic Surgery. Services of Dr. Abdul Majid Chohan have been placed at the disposal of the Director, Health Services, Rawalpindi and Dr. Muhammad Ashfaq has been transferred to Allama lqbal Memorial Hospital, Sialkot.

3. All the petitioners have challenged the orders of their transfer through their respective petitions. Dr. Hanif Arif and Dr. Ashiq Parvez have also assailed the vires of the directives issued by the Chief Minister for providing free medical treatment to the patients not entitled therefor, and impleaded him as one of the respondents in their petitions though during the course of hearing on 5-9-1992, learned counsel appearing for the two petitioners agreed, at the request made by the learned Additional Advocate-General, "to delete for the present the name of the Chief Minister, Punjab from the array of the respondents". His name was thus deleted. Petitioners in Writ Petitions No.2739-92 and 2740-92 also collaterally challenged the Chief Minister's directive for providing free medical treatment to ineligible patients but did not implead the Chief Minister as respondent. 4. 1 have heard the learned counsel for the petitioners as also the learned Law Officers appearing for the respondents. Learned counsel for the petitioners contended that -the Petitioners' transfers have been ordered not in the exigency of service but by way of penalty. He pointed out that on the directive of the Chief Minister conveyed by the District Health officer, Khanewal, one Master Faiz Muhammad, resident of Chak No. 134/16-L situate in the constituency (Mian Channu) of the Chief Minister was admitted in the hospital on 2-3-1992 for the treatment of his kidney trouble. He was duly attended to and properly looked after and was kept in an air-conditioned family room. He was operated upon on 10-3-1992, given full post-operation care and was discharged on 19-4-1992 after he' was fully. recovered. He, however, continued visiting the hospital and constantly remained under the direct care of Dr. Hanif Arif, petitioner. The said Faiz Muhammad again brought a letter from the Secretary, City Muslim League, Mian Channu for re admitting him in the hospital. This bidding, too, was -.carried out and he was admitted in the hospital by Dr. Hanif Arif on 2-5-1992. He stayed in the family room under the supervision of physicians and surgeons and almost every specialist checked him all over again. He then left the hospital on 11-5-1992 but even thereafter he had been attending the Urology Department for check up, insisted for operation of his other kidney which was not found feasible and he was advised to wait for some time. He was also told that his fresh admission would require a fresh directive from the Chief Minister as the operation and medical treatment involved huge amount of expense of hospital funds. Learned counsel also pointed out that yet another patient namely Muhammad Sharif Ghouri, a businessman of Mian Channu who, too, had a kidney problem was referred to Nishtar Hospital, Multan by the District Health Officer, Khanewal stating that the Chief Minister had desired/directed that he be checked up medically, admitted in the hospital and provided accommodation in family ward and all the medical aid from the hospital funds. The patient was accordingly admitted in the hospital on 4-5-1992. Investigations revealed that the stone in his kidney was negligible which was likely to be dissolved with the use of medicines and, therefore, operation was not called for. He was accordingly discharged on 13-5-1992. According to the learned counsel for the petitioner, the aforementioned two patients in an open Katchery of the Chief Minister held in Mian Channu made complaints that they were not properly attended by Dr. Hanif Arif, petitioner and others who also insisted on a formal directive from the Chief Minister for free treatment. Learned counsel for the petitioners also pointed out that a lady patient Mst. Sughran, an Orthopaedic case who was admitted in the ward of Dr. Ashiq Parvez on the directive of the Chief Minister and was given full medical care and attention for about 20 days and was even referred to an Orthopaedic Expert in the Mayo Hospital, Lahore also made a complaint to the Chief Minister in an open Katchery held in Mian Channu that she was not provided proper medical treatment in the Nishtar Hospital, Multan. Learned counsel submitted that on these complaints, the Chief Minister directed an enquiry to be held against Dr. Hanif Arif and Dr. Ashiq Parvez, petitioners and some other doctors. Mr. Khalid Saifullah Khan, Surgeon-General, Punjab conducted some enquiry on 23-8-1992 which was almost ex parte and it was in pursuance of the report submitted by him that all the petitioners have been transferred. Learned counsel vehemently contended that if the petitioners had been afforded proper opportunity by the Enquiry Officer, they would have satisfied him that they had performed their professional duties honestly and efficiently. Learned counsel made a grievance on behalf of Dr. Abdul Majid Chohan and Dr. Muhammad Ashfaq that they were never summoned to face the enquiry on any charge. Dr. Chohan was only asked to produce the record and the only fault noted against him was that the medicines were supplied to Faiz Muhammad, patient on 4-5-1992 instead of 3-5-1992 (evening). The delay, in the submission of the learned counsel, was immaterial as the medicines prescribed were not life saving drugs. Similarly, Dr. Muhammad Ashfaq was wrongly taken to be a Cardiologist. He in fact was only incharge of lodging and boarding of the patients and issuing the indents for supply of medicines after they were prescribed by the doctor concerned. Learned counsel for the petitioners argued that the impugned orders of transfer which were penal in nature were passed on erroneous assumption and without. affording proper opportunity to the petitioners to rebut the allegations made against them. It was further argued that the transfer orders though issued by the Secretary, Health were in fact passed on the directive/dictation of the Chief Minister who had no lawful authority to do so. Learned counsel for the petitioners also argued that the Chief Minister had no lawful authority to issue the directives for providing medical aid/treatment free of cost to the ineligible patients and in any case, the directives issued were discriminatory in nature in so far as all the patients are not afforded the same facilities as were ordered to be provided to the patients recommended by the Chief Minister. Learned counsel particularly pointed out that from July, 1991, total number of patients admitted in the hospital for free medical treatment and all the facilities aforementioned was 162 out of which 160 patients belonged to the constituency of the Chief Minister and were admitted on his directives.

5. Learned Advocate-General raised a preliminary objection as to the maintainability of these, Constitution petitions in view of the bar contained in Article 212 of the Constitution. He contended that the petitioners were un doubtedly the civil servants; grievance agitated by them in these petitions namely their transfer from one station to the other essentially related to the terms and conditions of their service and, therefore, their remedy lay before the Service Tribunal which has exclusive jurisdiction in such matters by virtue of Article 212 of the Constitution read with section 3 of the Punjab Service Tribunals Act (IX of 1974) and the jurisdiction of this Court thus stood completely ousted. In support of his submission, learned Advocate-General relied upon Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Karachi 290, Khalilur Rehman and others v. Government of Pakistan and others PLD 1981 Karachi 750, Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another 1990 SCMR 999, I.A. Sharwani and another v. Government of Pakistan through Secretary, Finance Division,' Islamabad and others 1991 SCMR 1041 and Akhtar Ali v. Province of Punjab PLD 1992 Lahore

127. In the first mentioned case, it was held that the ouster contemplated under Article 212 of the Constitution being of constitutional nature necessarily curtails the jurisdiction of the High Court totally in respect of the matters falling within the competence of the Service Tribunal and even the orders which are mala fide, ultra vires or coram non judice are within the ambit of Service Tribunal. Similar view was taken in the second case which, too, was decided by the same learned Judges. In the case of Rana Muhammad Sarwar v. Government of Punjab, it was held by the Supreme Court that under Article 212 (3) of the Constitution, the Service Tribunal has exclusive jurisdiction to deal with the terms and conditions and since the reliefs claimed by the petitioner also formed the terms and conditions of service, "the High Court has appropriately held that the matter was a fit one for examination by the Service Tribunal". In the case of IA. Sharwani, Supreme Court of Pakistan after examining the relevant provisions of Article 212 of the Constitution and section 4 of the Service Tribunals Act, 1973 and the cases decided by that court observed in para 10 of the judgment it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant an claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated asan order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal". In the last mentioned case of Akhtar Ali v. Province of Punjab, this Court has also held that the provisions of Article 212 of the Constitution and section 3 of the Punjab Service Tribunals Act".... place it beyond doubt that the Service Tribunal has been given exclusive jurisdiction in the matters relating to the terms and conditions of the service of the civil servants including disciplinary matters and the jurisdiction of all other Courts in respect of matters falling within the competence of the Service Tribunal stands ousted. Needless to observe that non-obstante clause in Article 212 (2) gives it overriding effect with the result that the jurisdiction of this Court under Article 199 of the Constitution to entertain any proceedings in. respect o f matters falling within the ambit of Service Tribunal is completely excluded". Learned Advocate-General also referred to 1988 SCMR 991 (1) and 1991 SCMR 477 to show that the matter of transfer of a civil servant related to the terms and conditions of his service and any grievance on that account could only be agitated in an appeal before the Service Tribunal. Scope and import of the jurisdiction ousting clause of Article 212 of the Constitution with reference to the exclusive jurisdiction of the Service Tribunals constituted under various Service Tribunals Acts, Federal and Provincial, has also been examined in a number of other judgments. Reference may usefully be made to a full Bench judgment of Peshawar High Court in Mian Amanul Mulk v. N.-W.F.P. through Chief Secretary PLD 1981 Peshawar

1. In that case, while dealing with Article 212 of the Constitution, it was held that "The'provisions of this Article on the very language oust the jurisdiction of all other Courts and as observed by a Division Bench of this Court in the case of Dr. Raja Mansoor Elahi v. N. W.F.P. (PLD 1980 Pesh. 81) an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the jurisdiction of the Civil Courts and for that matter of the High Court is specifically ousted". In yet another case reported in PLD 1983 SC 100, Supreme Court of Pakistan after examining the provisions of Article 212 of the Constitution and of section 4 of the Service Tribunals Act held that under the new dispensation, the Service Tribunal was made the sole arbiter of all disputes relevant to the terms and conditions of civil servants and the jurisdiction of ordinary Courts was altogether excluded in these matters. It was observed "These provisions leave no doubt that disputes relating to the service rights of civil servants were henceforth being made the exclusive concern of the Service Tribunals". -

6. Confronted with the afore noted legal position, the learned counsel for the petitioners relying upon the leave-granting orders of the Supreme Court of Pakistan passed in C.Ps. 944-L-91 and 945-L-91 on 26-10-1991 and in C.P. 293 of 1992 on 26-8-1992 (copies whereof were placed on the present record) sought to contend that by reason of these orders, the view earlier taken by the Supreme Court of Pakistan regarding the exclusive jurisdiction of the Service Tribunal in Service matters was re-opened. The contention appears to be misconceived. Perusal of the two orders rather shows that the High Court admitted, the Constitutional petitions in service matters (in one case, it was a transfer matter and in the other, pending disciplinary proceedings were challenged) and the Supreme Court granted leave to examine whether such matters in view of the non abstante clause of Article 212 of the Constitution could be entertained by the High Court in its constitutional jurisdiction and in each case, Supreme Court suspended the interim stay orders issued by the High Court.

7. Learned counsel for the petitioners also tried to meet the preliminary objection of the learned Advocate-General based on Article 212 of the Constitution by contending that since the petitioners had also challenged the validity of the directives of the Chief Minister for providing free medical treatment -to ineligible patients, bar contained in Article 212 of the Constitution would not be attracted even qua the impugned orders of transfer. The contention has no force. Petitioners essentially felt. aggrieved with the Orders of their transfer which matter undoubtedly related to the terms and conditions of their service and in view of the settled legal position afore referred, these orders were appealable before the Service Tribunal and could not, therefore, be brought under challenge in Constitutional jurisdiction. Merely because, petitionerg had also assailed the validity of the Chief Minister's directives does not mean that they could also invoke the jurisdiction of this Court to examine the matter which falls outside the pale of its jurisdiction by virtue of Article 212 of the Constitution. As regards the challenge made to the directives of the Chief Minister for providing medical aid/treatment to the ineligible patients, suffice it to observe that on the petitioners' own showing, they have been A faithfully complying with these directives and never raised any objection until the impugned orders of their transfer were issued. In the circumstances, t ey are precluded by their own conduct from challenging the directives of the Chief Minister. It may also pertinently be noted that the petitioners in Writ Petitions Nos. 2739-92 and 2740-92 challenged the directives only collaterally and that, too, without impleading the Chief Minister as a party and the other two petitioners deleted the name of the Chief Minister from the array of the respondents. They no doubt subsequently moved applications for permission to implead him as a party again but those applications were not pressed during the course of hearing. Be that as it may, it is highly doubtful if the petitioners had any locus stand to challenge the impugned directives of the Chief Minister as none of them was really aggrieved thereof. In view of what has been said above, all the four writ petitions are dismissed with the observation that the petitioners, if so advised, may approach the Service Tribunal for necessary relief in the matter of their transfer. Writ Petition Nos. 2739-92 and 2740-92 were still at motion stage but since I have heard the learned Law Officers appearing for the respondents, these two petitions are too being disposed of as notice cases. No order as to costs. AA./H-70/L Petitions dismissed.