MUHAMMAD AKRAM TAHIR Versus SECRETARY EDUCATION, GOVERNMENT OF PUNJAB, LAHORE

This judgment will dispose of Writ Petitions Nos. 23307, 22789, 5041, 28021, 27898, 27746, 28199, 27944,28133, 28235, 28369, 28898, 28851, 28852, 29319 of 1997, 379 of 1998, 28065 of 1997, 721, 487, 457, 1279, 906, 920, 734, 546, 703, 1040, 1168, 1633, 1843, 2218, 2325 of 1998, 29095 2485 of 1997, 2609, 2803, 2808, 2856, 3169, 3180, 3759, 3508, 3747, 4328, 5123 of 1998, 28342, 24100 of 1997, 22764 of 1997, 5699, 6197, 4909, 4872 of 1998 and 28122 of 1997 as the common question of law is involved.

2. In all these petitions the petitioners are admittedly civil servants and are aggrieved against the orders of their transfer/posting. The major ground of attack on the validity of the orders in that the same has been passed not in the exigency of service nor for the purpose of the relevant law like Punjab Civil Servants Act, 1974 read with the relevant rules/instructions/policy but for appeasing the M.N.As/M.P.As./Ministers/Chief Minister/Local Office Bearers of the ruling party namely Pakistan Muslim League (Nawaz Group). It is stated that the impugned orders are rendered void in these circumstances and such void and dishonest orders can be validly challenged In the High Court under Article 199 of the Constitution, notwithstanding the Establishment of Service Tribunal under Article 212(1) of the Constitution and the bar contained in Article 212(2) of the Constitution. Most of the cases relate to the Education Department of the Province of Punjab and majority of the petitioners are primary school teachers. To support plea of political interference, the petitioners have annexed copy of the writing/letter from the M.N.A./M.P.A. etc. Under the orders of the Court all such M.N.As./M.P.As. were impleaded as parties so that they could show to the Court the writing was or was not in their hands and they enjoyed the authority in law to issue such directions either, written or oral.

3. In some of the cases the affected Government servants impleaded as party filed reply contested the maintainability of the petitions and further justifying the passing of the impugned orders on merits. Some of such affected parties got themselves impleaded by applying. Learned Advocate- General also entered appearance to assist this Court on important question of law.

4. The first question to be decided is whether the M.N. As./M.P.As/Ministers/Chief Minister/representatives and office bearers of the ruling political party can interfere influence the transfer and placing of posting of the civil servants. The next question is what is the effect of such interference? Whether the order would be illegal and irregular, liable to be challenged in the Service Tribunal or such an order would be void, and coram-non-judice inviting action under Article 199 of the Constitution, notwithstanding the bar contained in Article 212 of the Constitution?

5. Neither the learned Advocate-General nor learned A.A.-G. and nor any other learned counsel appearing from the respondents side has attempted to justify interference by M.N.As/M.P.As. etc. in the matter of transfer and place of posting of the civil servants. In few cases where M.N.As./M.P.As. were represented, even their learned counsel did not attempt to justify the interference. I have on my own attempted to survey the provisions of the Constitution and the other relevant laws and I have not been able to notice any provision which would directly or even in directly authorise the members of the Parliament or Provincial Assembly to intermeddle in such matters. In fact in the working of the relevant Service Laws, such Members are not even mentioned much less being conferred any power. The position is in fact to the contrary. Under Rule 19 of the Government Servants Conduct Rules, 1966, a Government servant has been prohibited from directly or indirectly approaching any Member of the National Assembly or a Provincial Assembly or any other non-official person to intervene on his behalf in any matter. Logically therefore, any interference by Members of National Assembly or a Provincial Assembly or any other non-official person like office-bearer or a representative of the ruling political party will have to be deemed to be prohibited. In fact I would go further and hold that any such Member or non-Official person interfering m these matter will be subverting the provisions of law and such subversion may render him liable to be disqualified. The State of Pakistan is governed according to Constitution and fixed set of rules and no person much less representatives of the people can assume themselves the power to act against such set of rules and the Constitution. I, therefore, conclude that interference in all these petitions by the respondents- M.N.As /M.P.As /non-Official persons like officer-bearers of Pakistan Muslim League (Nawaz Group) is without legal sanction. The competent Authority ought to have ignored the same and in blindly following the dictates of the M.N.As/M.P.As. etc. they have not served the purpose of law nor have worked for the rule of law.

6. This takes me to the next question regarding the maintainability of these petitions. It has vehemently been contended by learned Advocate General/A.A.-G. that in spite of interference by M.N.As./M.P.As. the aggrieved person will have to approach the Service Tribunal for redressal and not to this Court. Reliance of course is placed on Article 212, in particular sub-Article (2) which ousted the jurisdiction of all other Courts in matters which fall to be determined by the Service Tribunal. It is emphasised that the question of transfer/posting is a matter pertaining to the terms and conditions of the civil servants and in view of the fact that Service Tribunal in Punjab is, working, there is complete ouster of jurisdiction of this Court under Article 212 (2) of the Constitution. Reliance is placed on large number of cases including Zahid Akhtar v. Government of Punjab etc. (PLD 1995 Supreme Court 530), Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539), Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari w (PLD 1997 Supreme Court 351), Miss Rukhsana Ijaz v. Secretary Education, Punjab and others (1997 SCMR 167 =1997 PLC ( C.S. 121), Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department etc, (1997 SCMR 169 = 1997 PLC ( C.S.) 123) and Hafiz Khalid Irshad v. Ahmad Khan Wattoo and others (1997 SCMR 1124). Reliance is further placed on through Single Bench judgments of this Court, namely, Malik Irshad Ahmad v. The Chief Minister, Punjab, Lahore etc., 1994 PLC (C.S.) 836; Mst. Naseem Saddique v. District Education Officer (W) Sahiwal etc.(1991 MLD 2214); Muhammad Shafique v. Director Education (S.E.) etc. (1997 PLC ( C.S) 197). Reliance is also placed on D.B. judgment of this Court reported as Munshi Muhammad Azam v. A. C. etc. (1996 PLC (C. S.) 1415). On the other hand learned counsel appearing for the petitioners have mainly relied on the case of Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738). It has been strenuously urged that in cases of absence of jurisdiction, coram non judice and mala fide, this Court retains power of judicial review under Article 199 of the Constitution notwithstanding the ouster clause like Article 212(2) of the Constitution.

7. The review and analysis of the cited case law leads me to the inference that the pre-ponderance of view is that even in cases where transfer has taken place under the influence/dictation of M.N.As./M.P.As. etc., the bar contained under Article 212(2) of the Constitution remains intact. In Mst. Naseem Saddique v. District Education Officer (W), Sahiwal etc.(1991 MLD 2214), the learned Single Judge of this Court extensively reviewed the legal position and came to the conclusion that the petitions were not maintainable. This was also the view taken by a D.B. of this Court in Munshi Muhammad Azam v. A.C. etc. (1 996 PLC ( SC) 415). In the judgment reported as Hafiz Khalid Irshad v. Ahmad Khan Wattoo (1997 SCMR 1124), it was urged in the Constitutional petition that the transfer of the petitioners-civil servants was cancelled at the behest of M.N.A., who had no jurisdiction in the matter. This Court admitted the petition to regular hearing and suspended the impugned order. The Hon'ble Supreme Court converted the petition for leave to appeal into an appeal and allowed the same by holding that the High Court must first decide the question of its jurisdiction in view of Article 212(2) of the Constitution. This was also the view taken in Miss Rukhsana Ijaz v. Secretary, Education Punjab and others (1997 SCMR 167 = 1997 PLC(CS.)121) and Ayaz Anjum v. Punjab (1997 SCMR 169 = 1997 PLC (C.S.) 123).

8. The above analysis almost clinches the issue as regards the maintainability of these petitions. The statement of law made by the Hon'ble Supreme Court is binding on this Court. I am further bound by the view taken by the learned D.B. of this Court in Munshi Muhammad Azam v. A.C. etc. 1996 PLC (C S.) 415 Some of the learned counsel for the petitioner have, however, urged this Court not to ignore the reality that such interference is mostly whimsical and arbitrary and if the remedy of approaching this Court is also barred, it will lead to tyranny as petty civil servants like P T.C. teachers will be thrown at the mercy of the M.N.As. and M.P.As. To fortify the arguments, it has been pointed out that in some cases such teachers have been posted at a distance of some 50 to 100 K.Ms, away from their homes and if they were to suffer such postings, the entire pay will be consumed in meeting the transportation charges. It is emphasised that this Court must maintain a check on such arbitrary, whimsical and void transfer which cannot be said to be countenance under law.

9. The argument is quite appealing. However, there are difficulties in accepting the same. As noted, the issue seems to have been settled by the supreme court and D.B. judgments and sitting in Single Bench I am bound to follow the same. It is also well-settled that the provisions of the Constitution have to be given effect to. Article 199 is subject to other provisions of the Constitution and Article 212 is one such provision. If the Constitution bars jurisdiction of this Court under Article 212(2), it cannot be assumed by this Court on premises that denial of jurisdiction will lead to oppression and arbitrariness. It is for the law maker to attend to such arguments. In any case the petitioners and other aggrieved civil servants will not be without any remedy. The remedy is provided by the Constitution and it is available in the shape of a Service Tribunal.

10. For the above reasons all these petitions will have to be dismissed as not maintainable. I order accordingly. The parties will bear their own costs.

A.A./M-642/L Petition dismissed.