Prof. M. ASHRAF KHAN NIAZI vs CHAIRMAN, BOARD OF GOVERNORS, ALLAMA

ORDER

' The petitioner challenged the vires of his repatriation orders dated 21-9-2002 and 26-9-2002 respectively through this Constitutional petition.

2. Learned counsel for the petitioner submits that impugned orders are in violation of the instructions issued by the Competent Authority on 8-8-2002 which clearly shows pre-conditions vide instruction No,5 to the effect that rule 12(3) of the Punjab Medical and Health Institutions Rules, 2002 empowers the Board to repatriate any Government Servant serving in the AMI. However, this, authority must be exercised with extreme caution and arbitrary decisions must be avoided, as the Government servants working in the medical institutions (especially teaching cadre) cannot be adjusted by the Government anywhere else. He further urges that respondents passed the impugned orders in derogation of the mandatory instructions in the field. He further urges that manner of exercising power by the respondents is mala fide. He further urges that impugned orders were passed against the petitioner without notice to the petitioner and at that time when he was on summer vacation from 9-8-2002 to 30-9-2002 under the valid order of the Competent Authority. This fact alone is sufficient that the impugned orders were passed by the respondents without lawful authority. He further submits that, respondents are duty bound to pass the impugned orders with reasons in view of section 24-A of the' General Clauses Act. The impugned orders do not contain any reasons, therefore, the same are not sustainable in the eyes of law. The impugned orders were passed by the respondents in violation of the principles laid down by the superior Courts. In support of his contention he relied upon the following judgments:--

1. Zain Yar Khan v. Chief Engineer (1998 SCMR 2419).

2 Aslam Warraich v. Secretary Planning and Development Division (1991 SCMR 2330).

' Learned Addl. A.-G. Entered appearance on Court call, he submits that writ petition' is not maintainable.

3. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record.

4. It is settled proposition of law that it is not the vested right of a civil servant/statutory employee to continue on deputation. In arriving to this conclusion I am fortified by the following judgments:--

1. Pakistan v. Fazal-ur-Rehman (PLD 1959 SC (Pak.) 82),

2. Pakistan v. Moazzam Hussain Khan and another (PLD 1959 SC (Pak.) 13),

3. Sheikh Abdul Rahim's case (PLD 1964 Lahore 376), 4 Abdul Khaliq Anjum's case (1998 PLC (C.S.) 839) and

5. C.P. No, 427-L of 1991 Government of Pakistan v. Professor M.A. Saeed decided on 12-4-1992.

The petitioner is a civil servant and remains a civil servant inview of section 8(3) of the Punjab Medical and Health Institutions Ordinance, 2002. Therefore, writ petition is not maintainable in view of bar contained in Article 212 of the Constitution read with section 4 of the Service Tribunals Act as per principle laid down by the Honourable Supreme Court in M. Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22). However, in the interest of justice and fairplay let a copy of the writ petition be sent to respondent No,2 who is directed to look into the matter personally and pass an appropriate order strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and representatives of respondents No,1 and 3 and any other person who would be aggrieved by his order within reasonable time. Learned counsel of the petitioner is directed to hand over a copy of the writ petition alongwith all the annexure to respondent No,2 for necessary action and compliance, ' With these observations this writ petition is disposed of.