AMJAD RAZA KHAN and another vs GOVERNMENT OF PUNJAB through Secretary, Local Government and Rural Development Department, Lahore and 4 others

ORDER

' SAJJAD ALI SHAH, C.J.---By this petition, leave is being sought to file appeal against order, dated 7- 5-1995 passed by the High Court in Writ Petition No, 12481 of 1994, whereby operation of orders dated 3-1-1994 and 10-1-1994 is suspended during the pendency of the writ petition.

2. Respondents 3 and 4 herein, namely, Muhammad Zia-ul-Haq and Zaheer-ud-Din, who are Executive Engineer and senior-most Assistant Engineer respectively in the Punjab Local Government and Rural Development Department, challenged orders dated 3-1-1994 and 10-1-1994 in the writ petition mentioned above in the High Court, whereby petitioners herein, namely, Amjad Raza Khan and Rai Muhammad Umer have been transferred and posted as Executive Engineers in Local Government and Rural Development Department. This writ petition was filed on 3-10-1994 and vide impugned order dated 7-5-1994 the said writ petition is admitted to regular hearing and operation of the orders impugned therein, as mentioned above, is suspended.

3. It is contended on behalf of the petitioners herein, who are respondents 3 and 4 in the writ petition, firstly that High Court has no jurisdiction to entertain writ petition for the reason that impugned orders touched upon the terms and conditions of service in respect of which jurisdiction of the High Court is barred under Article 212 of the Constitution as competent forum before which such question can be agitated is Service Tribunal. Secondly, by granting interim relief, High Court has granted relief in totality which is not permissible under the law as the main petition is still pending. On the other hand, learned counsel for respondents 3 and 4 herein has defended the order passed by the High Court and impugned in this petition on the ground that High Court is competent to pass such order, which is fair and valid in the circumstances of this case.

3-A. It appears that in the High Court comments were filed by the Government of Punjab in which objection is raised with regard to the jurisdiction of the High Court and also to the effect that writ petitioners had not availed departmental remedy, hence resort to the Court was premature. Plea is also raised that appointments of respondents Nos. 3 and 4 in the writ petition have been made by transfer and not by deputation. In such circumstances, question of jurisdiction is of paramount importance and the High Court should have decided this question in the first instance. It also appears from the record that the writ petition was filed on 3-10-1994 and stay order was passed on 7-5-1995 which is after about seven months. In such circumstances, we are of the view that the High Court should decide the question of jurisdiction and since stay has been granted, it would be proper and in the fitness of the things that High Court should dispose of the main petition finally including finding on the question of jurisdiction within two weeks from today. Order accordingly.

Petition stands disposed of in the terms mentioned above.