2007 SCMR 54 (PLP)

Laws Cited

Representation

• Syed Ayaz Zahoor, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioner.
• Nemo for Respondents.
• Date of hearing: 3rd August, 2006.
• 2. Heard Syed Ayaz Zahoor, learned Advocate Supreme Court on behalf of petitioner who mainly contended that the learned Division Bench of High Court of Balochistan had erred while holding that the petition was not maintainable in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan when the relief sought was not related to the terms and conditions of the service and only it was prayed that earlier order passed by High Court of Balochistan in C.P. No.187 of 2006 be got implemented. It is next contended that the posting of Ghulam Rasool (respondent), against the post of Director-General, Agriculture Extension Balochistan has been made in violation of the relevant Agriculture Service Rules and besides that it was mandatory upon the Provincial Government to implement the orders of High Court of Balochistan in letter and spirit.
• 3. We have carefully examined the contentions as agitated on behalf of petitioner and perused the judgment impugned with care and caution. A careful scrutiny of the record would reveal that the entire controversy revolves around the posting of "Director-General, Agriculture Extension" and the petitioner wants to be posted against it. We are not persuaded to agree with the prime contention of Syed Ayaz Zahoor, learned Advocate Supreme Court on behalf of petitioner that order of learned High Court in Civil Petition No.187 of 2006 was not implemented by the Provincial Government for the simple reason that no categoric direction whatsoever was given qua the posting of petitioner as Director-General, Agriculture Extension but on the contrary the Provincial Government was directed to take action strictly in accordance with law and on merits. It is worth mentioning here at this juncture that Mr. Ghulam Rasool (respondent) who has been posted as Director-General Agriculture Extension is equally qualified and he could have been posted against the vacancy of Director-General, Agriculture Extension. No legal right of the petitioner has been infringed. A desire simpliciter cannot be equated to that of legal right. "A legal right is that right which is recognizable and enforceable at law. A legal right is less abstract than the conception which is represented by the unqualified word "right", because the unqualified word includes both juristic and legal conceptions. The juristic conceptions have their source in and pertain to what is idealistic, or to the world order as a whole, or to the social order in principle. They come out of what Prof. Roscoe Pond has called "culoudcuckootown"; while legal conceptions and legal rights pertain to an actual legal order. These two kinds may sometimes fall far apart because while the former belongs to the science of law, the latter belongs to a particular system of law. Hence jurists may hold different ideas as to them without affecting the law. The two kinds of conceptions meet when the provisions of a particular legal system need to be better understood by breaking them up, like a beam of light, into the waves of thought, by passing them, as it were, through the prism of jurisprudence. The differaction that is achieved is both realistic and colourful". (Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618.
• 4. Admittedly the petitioner had no legal right to be posted against a particular post hence the question of its infringement does not arise as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner. It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all .other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters. In this regard we are fortified by the dictum laid down in case Kh. Abdul Wahid v. Chairman, WAPDA 1986 SCMR 1534. There is no denying the fact that leave to appeal to Supreme Court is competent only if the case involves a substantial question of law and public importance which is sine qua non for the invocation of jurisdiction as conferred upon this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan as neither any question of public importance is involved nor enforcement of any of the fundamental rights. There is no cavil with the proposition that "where no question of law of public importance is involved leave to appeal may not be granted". In this regard reference can be made to cases Director Food v. Rashid Ahmad 1990 SCMR 1446; Muhammad Manzoor Ahmad v. Commissioner, Multan Division. 1990 SCMR 560; Sattan v. Rani 1989 SCMR 1677 and Government of Punjab v. Khalid Hussain Gill 1989 SCMR 748.

Headnotes / Summary

Judgment & Decree