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Petitioner: Mrs. ZEENAT AHMED VS Respondent: FEDERATION OF PAKISTAN through Secretary DefenceHonorable Justice Muhammad Ali MazharKhalid Jawed,M.M. Aqil Awan
2014 P L C (C.S.) 1032
[Sindh High Court]
Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ
Mrs. ZEENAT AHMED
Versus
FEDERATION OF PAKISTAN through Secretary Defence and 2 other
C.MA. No.4063 of 2014 in Constitution Petition No.D-877 of 2014, decided on 12th June, 2014.
(a) Constitution of Pakistan---
----Art. 199---Constitutional petition---Civil service---Transfer to another station---Wedlock Policy, violation of---Scope---Transfer in question was neither in public interest, nor for valid reason---Petitioner was holding of additional charge of the post of other station---Effect---Petitioner challenged her transfer from place `K' to 'R' on the ground of Wedlock Policy and mala fide---Petitioner was not issued three months' notice before transfer from one station to another---Contention of the petitioner was that she had been transferred without any exigency of service on the basis of mala fide intentions in violation of Wedlock Policy---Validity---Mere holding of an "additional charge" of other station in a particular period of time did not mean that the petitioner could not be given the advantage and benefit of wedlock policy in future nor this could be presumed that the petitioner had waived her right to claim this benefit---Once the competent authority issued wedlock policy, it was their responsibility to implement and adhere to such policy guidelines so that the benefit might be given to all such persons entitled for the same; Its implementation could not be left at the whims and volition of the competent authority to bestow this benefit or advantage on pick and choose basis---Such type of guidelines or policy should be implemented across the board without any discrimination---Civil servant could not claim any particular post as vested right but, in the present case, the petitioner had not claimed any vested right against any particular post but the petitioner only wanted the implementation of wedlock policy in her case which was introduced keeping in view the socio-economic problems and hardships faced by husbands and wives in Government Service due to posting at different stations---Facility was extended through Office Memorandum to "such class" of Government servants also, to be able to serve at the place of resident of their spouses, irrespective of the fact that such spouses were employed with the Government, private sector or even unemployed---Constitutional petition was accepted in circumstances.
(b) Civil Servants Act (LXXI of 1973)---
----S. 10---Constitution of Pakistan, Arts.199 & 35---Constitutional petition---Posting and transfer---Wedlock Policy---Article 35 of the Constitution wherein it was provided as principle of policy that the State shall protect the marriage, the family, the mother and the child---Wedlock Policy explicated or itinerant around this principle of policy which was intended to ensure the benefit of a family and it also advanced social good---Unless there were insurmountable hurdles, requests of the husband and the wife to be posted at one station were required to be considered with an element of compassion and kindness.
(c) Constitution of Pakistan---
----Arts. 212(2) & 199---Service Tribunals Act (LXX of 1973), S.3---Constitutional jurisdiction of High Court---Scope---Civil service---Transfer in violation of transfer policy---Alternate remedy of appeal---Contention of the petitioner was that as the Service Tribunal was not functioning, therefore, the High Court had jurisdiction to entertain the constitutional petition against the transfer order---Validity---Service Tribunal was not functional, the petitioner could not be non-suited on the ground of non-functioning of Tribunal, as the petitioner could not be given directions to approach the non-functional Service Tribunal---High Court, before exercising extraordinary jurisdiction, must be satisfied about the non-availability or inefficacy of alternate remedy provided under law and once it was shown to the satisfaction of the High Court that alternate remedy was expedient and effective, then obviously High Court would be reluctant to exercise constitutional jurisdiction---To disentitle a person from extra-ordinary relief, the alternate remedy available must be a remedy in law i.e. remedium juris, which was not less convenient, beneficial and effective---To effectively bar the jurisdiction of the High Court under Art.199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which was sought to achieve through a constitutional petition---If no adequate or alternate remedy was provided under the law constitutional jurisdiction could be set into motion for the redress of an aggrieved person---Constitutional petition could be invoked without waiting the statutory period of 90 days unless the Service Tribunal was functioning.
Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Dr. Younis Asad Shaikh v. Province of Sindh, Secretary Health Department 2009 PLC C.S.) 735; Miss Rukhsana Ijaz v. Secretary, Education Punjab 1997 SCMR 167; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Peer Muhammad v. Government of Balochistan 2007 SCMR 54 and Mrs. Abida Jabeen v. Secretary Education Schools) Government of Punjab 2012 PLC C.S.) 665 ref.
Sarfraz Saleem v. Federation of Pakistan and others PLD 2014 SC 232; Sajida Abdullah ESE Teacher) v. District Coordination Officer and 2 others 2011 PLC C.S.) 592; Muhammad Zia-ul-Haq v. Secretary to Government of the Punjab and 4 others 2003 PLC C.S.) 1322 and PLD 2011 SC 277 Suo Motu Case No.24 of 2010 and Human Rights cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010 rel.
Khalid Jawed for Petitioner.
M.M. Aqil Awan for Respondent No.2.
Muhammad Arshad Khan Tanoli for Respondent No.3.
Asif Hussain Mangi, Standing Counsel.
Date of hearing: 6th May, 2014.
JUDGMENT
MUHAMMAD ALI MAZHAR, J.--- The petitioner has challenged her transfer order dated 20-2-2014 from Karachi to Rawalpindi on the ground that it is in violation of wedlock policy of the Government (O.M.No.10/30/97-R-2 dated 13-5-1998 and 17-12-1999) issued to facilitate posting of husbands and wives at the same station and the posting of unmarried female civil servants at the place of residence of their parents/families.
2. Learned counsel for the petitioner argued that the petitioner is performing her duty as Director Military Land and Cantonments (DML&C) Karachi Region, Karachi in (BS-20). She joined the Government Service in the year 1988 after passing competitive examination through Federal Public Service Commission. It was further contended that husband of the petitioner is also Government servant and Senior Medical Officer, Health Department, Government of Sindh and her entire family is living in Karachi. The petitioner has four minor school going children. On 20-2-2014 all of a sudden the petitioner came to know that she has been transferred and posted as Director (F&P) at Rawalpindi and the respondent No.3 was directed to take over the charge of the post of the petitioner.
3. Learned counsel further argued that posting order was issued totally in disregard of relevant provisions of law and the wedlock policy of the Government. The transfer order issued with mala fide intention only to victimize the petitioner and to disturb her peace of mind and the entire family. The transfer of the petitioner from Karachi to Rawalpindi is neither in public interest nor for any valid reason. Under section 24-A of the General Clauses Act, the respondents were bound to communicate to the petitioner the reasons for deviation from the wedlock policy of Government of Pakistan. He further argued that at present the Federal Service Tribunal is not functional, hence the petitioner could not approach the FST for seeking appropriate relief hence she has rightly approached to this court under the writ jurisdiction.
4. He further argued that under the normal course, three months' notice should be given to the Government servant before transferring from one station to another so that he could be able to plan his affairs. Learned counsel referred to the statement which he filed on 6-5-2014 in which he has mentioned the names of five officers who were given benefit of wedlock policy but in the case of petitioner this has been violated with ulterior motives. He further argued that even in the case of deputation vide Notification No.S.R.O.375(I)/2012 dated 16-4-2012 in Rule 20-A, after sub-rule (3) in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 a proviso has been added through which the benefit of wedlock policy was extended even to the deputationist. In support of his arguments he relied upon the following case-law:---
(1) PLD 2014 SC 232 (Sarfraz Saleem v. Federation of Pakistan and others). Articles 212(2) and 199. Services Tribunals Act (LXX of 1973) Section 3. Constitutional Petition before High Court under Article 199 of the Constitution. For establishment of Service Tribunal appointment of its Chairman by the President, with prescribed qualification was a sine qua non and unless such appointment is made, there is no Tribunal in existence, so as to attract the bar of jurisdiction contained in Article 212(2) of the Constitution. Bar on jurisdiction of High Court under Article 212(2) of the Constitution would not come into play till the Federal Service Tribunal was established in terms of Section 3(3)(a) of Service Tribunals Act, 1973.
(2) 2011 PLC (C.S.) 592 (Sajida Abdullah (ESE Teacher) v. District Coordination Officer and 2 others). Article 199. Impugned order having malafidely and illegally been passed in contravention of basic law and the Policy declared by the Government, constitutional petition filed against said order was maintainable before the High Court. If one spouse in one Government Department was posted at one city and the other spouse was posted at a different city, was definitely going to cause mental distress to both of them, with the consequences which were not only injurious to them, but to the public and Government exchequer as well.
(3) 2003 PLC (C.S.) 1322 (Muhammad Zia-ul-Haq v. Secretary to Government of the Punjab and 4 others). Wedlock Policy had been introduced and acted upon with a philosophy. If husband in Government Department was posted at one city and his wife posted in another Government Department was working in a different city, it was definitely going to cause mental distress to both of them with the consequences which were not only injurious to them, but to the public and Government exchequer.
(4) PLD 2013 SC 195 (Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others). Tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these are made on merit in accordance with definite rules, instructions etc., the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient.
(5) PLD 2011 SC 277 (Suo Motu Case No.24 of 2010 and Human Rights cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010). Section 14. Estacode, Vol.I (2007 Edn.) Instructions. Employment after retirement. Record in the present case, showed that prima facie, while re-employing the retired civil servants/persons in the police department the provisions of law i.e. section 14 of the Civil Servants Act, 1973 as well as Instructions contained in Estacode, Vol. I, Edn, 2007 under the heading "Re-Employment" and the judgments of the Superior courts on the subject were not considered/adhered to Effect. Held, for establishing rule of law and Constitutionalism, it was necessary that the relevant provisions should be followed strictly in letter and spirit.
5. Mr. M.M. Aqil Awan, learned counsel for the respondent No.2 argued that the question of transfer and posting is one of the terms and conditions of the service which is in fact amenable to the jurisdiction of the Service Tribunal and the constitutional jurisdiction of this court is barred under Article 212 of the Constitution. He further argued that a civil servant cannot claim for appointment or posting to any particular post as a matter of right. He further argued that under section 22 of the Civil Servant Act, 1973 the right of appeal and representation is provided against any such order but without exhausting the same the petitioner could not have approached Federal Service Tribunal or this court. Learned counsel referred to the rejoinder of the petitioner and argued that the petitioner filed the departmental appeal on 21-2-2014 and without its decision or waiting for 90 days period she has filed constitutional petition, which is not maintainable. He further argued that though the F.S.T. is not functional at present, but in order to invoke the constitutional jurisdiction of this court she was supposed to wait 90 days which is provided under the law for deciding the appeal or representation by the competent authority. Learned counsel contended that the Office Memorandum is a non-statutory instruction which cannot be enforced through constitutional jurisdiction. To maintain constitutional petition it is a mandatory requirement that petitioner should show the existence of a legal right which has been violated. The petitioner has no vested or legal right to claim a particular posting at a particular station. Out of total length of service she served at Karachi for 22 years. She also served as Additional CEO, Peshawar, CEO Kamra and DML&C Quetta holding the additional charge. He also referred to career planning of officers ML&C Department along with brief history of posting which is attached to the counter affidavit. He also referred to the judgment passed by one of us (Muhammad Ali Mazhar, J), in C.P.No.D-3943 of 2013 and C.P.No.D-5463 of 2013 in which the petitions of Sindh Civil Servants were dismissed keeping in view the bar contained under Article 212 of the Constitution. In support of his argument, the learned counsel relied upon the following case-law:---
(1) 2009 PLC (C.S.) 735 (Dr. Younis Asad Shaikh v. Province of Sindh, Secretary Health Department). Under section 10 of the Sindh Civil Servants Act, 1973 posting and transfer being the terms and conditions of service, same could not be challenged before High Court in its constitutional jurisdiction.
(2) 1997 SCMR 167 (Miss Rukhsana Ijaz v. Secretary, Education Punjab). Dispute between both civil servants relating to their transfer/posting, which was a matter relatable to terms and conditions of their service. Jurisdiction of High Court was excluded in such matters in terms of Article 212(2) of the Constitution.
(3) 1998 SCMR 2129 (Asadullah Rashid v. Haji Muhammad Muneer and others). Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction.
(4) 2007 SCMR 54 (Peer Muhammad v. Government of Balochistan). Question of posting/transfer relates to terms and condition of a government servant. Service Tribunal, therefore, has the exclusive jurisdiction.
(5) 2012 PLC (C.S.) 665 (Mrs. Abida Jabeen v. Secretary Education (Schools) Government of Punjab). It was held that the appellant had no vested right to be posted against a particular place. Transfer policy was just a guideline which had no binding force. Competent Authority, was to see the feasibility that husband and wife could be posted at one station or not Impugned order passed by Single Judge of High Court, which was in accordance with law, was maintained.
6. Mr. Arshad Khan Tanoli, learned counsel appearing for respondent No.3 adopted the arguments advanced by Mr. M.M. Aqil Awan, however, he added that the respondent No.3 received the posting order from Director General (ML&C) and he was posted at Karachi on the place of the petitioner. He further argued that the petitioner has suppressed the material facts and failed to disclose that the respondent No.3 came to join at Karachi, but due to status quo order granted by this court he could not join his duties. Learned Standing Counsel also adopted the arguments of Mr. M.M. Aqil Awan, Advocate for the respondent No.2.
7. After the hearing the pros and cons, there is no doubt that the petitioner preferred departmental appeal on 21-2-2014, which is pending before the competent authority. It is also a fact that the Federal Service Tribunal is not functional due to non-appointment of its Chairman despite repeated directions of the Hon'ble Supreme Court. There is no F.S.T. virtually where a civil servants may approach for the redressal of their grievances. Most of the judgments cited by the learned counsel for the respondents are based on Article 212 of the Constitution which bars the constitutional jurisdiction of this court. In order to set into motion the aforesaid bar, the existence of Tribunal is necessary. Since the Tribunal is not functional, the petitioner cannot be non-suited on this ground as she cannot be given directions to approach the non-functional F.S.T. It is well-settled that this court before exercising extra-ordinary jurisdiction must be satisfied about the non-availability or inefficacy of alternate remedy provided under law and once it is shown to the satisfaction of this court that alternate remedy is expedient, effective, then obviously courts would be reluctant to exercise writ jurisdiction. To disentitle a person from extraordinary relief, the alternate remedy available must be a remedy in law i.e. remedium juris, one which is not less convenient, beneficial and effective. To effectively bar the, jurisdiction of the High Court under Article 199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which is sought to achieve through a petition under Article 199.
8. Recently, the Hon'ble Supreme Court in the case of Sarfraz Saleem, reported in PLD 2014 SC 232 clearly held that in so far as the jurisdiction of the High Court under Article 199 of the Constitution is concerned it is open ended, but subject to certain limitations prescribed therein, one of which is with reference to availability of other adequate remedy to the aggrieved party. As against it the bar of jurisdiction is dependent upon the establishment of Administrative Court/Tribunal having exclusive jurisdiction in the matter. The interpretation of the word "establishment" of an Administrative Court or Tribunal cannot be narrowed down to mere completion of paper by way of some appropriate legislation, unless it is established in a manner that it is functional and exercising its jurisdiction in accordance with law which in the instant case, is admittedly lacking. Lack of exercise of jurisdiction by the High Court in the present case seems to be contrary to the well accepted principle "ubi jus ibi remedium" (where there is a right there is a remedy) and the spirit of Articles 2 and 10-A of the Constitution, meant to safeguard the rights of every individual/person to be dealt with in accordance with law. Finally, the Hon'ble Supreme Court held that the establishment of the Tribunal in its terms, appointment of the Chairman by the President as prescribed qualification is sine qua non and unless such an appointment is made there is no Tribunal in existence, so as to meet the situation described by Article 212(2) of the Constitution and operate as bar of jurisdiction before any other forum. Learned counsel for the respondents also argued that the Tribunal is not functional but even for maintaining the C.P. the petitioner should have waited for 90 days for the decision of her departmental appeal/representation and without deciding the appeal or representation she could not have approached this court. Let us clarify that due to non-activation of F.S.T. this cannot be said that while deciding the petition under Article 199 of the Constitution we have assumed the role and jurisdiction of the F.S.T. The constitutional jurisdiction is guided by the principle that if no adequate or alternate remedy is provided under the law constitutional jurisdiction can be set into motion for the redress of an aggrieved person. It is misconceived to say that despite dysfunctional Tribunal, the petitioner should have waited for 90 days and thereafter seek appropriate remedy through this C.P. Most of the judgment cited by learned counsel for the respondents are based on the premise that the civil servant cannot invoke the constitutional petition of this court in view of the bar contained under Article 212 of the Constitution. There is no cavil to the proposition laid down or the guidelines expounded in the dictums but in the present situation when the Tribunal is dysfunctional, all such precedents are distinguishable unless the Tribunal is made functional. It is noted that for last considerable period the Government has not appointed Chairman of the F.S.T. while the directions were given to this effect much earlier by the Hon'ble Supreme Court. If the Tribunal is dysfunctional no responsibility or burden can be shifted upon the civil servants and for this disability they cannot be ousted or non-suited.
9. Now we would take up the next question which relates to the posting of the petitioner in view of the wedlock policy. The Office Memorandum or instructions contained in Estacode unequivocally make it clear that in view of the socio economic problems and hardships faced by husbands and wives in Government service due to posting at different stations of the duty, the office order on the wedlock policy was issued to facilitate posting of husbands and wives at the same station and the posting of unmarried female civil servants at the place of residence of their parents/families. Let us reproduce some relevant excerpts from Estacode as under:---
SL. No.2: Policy Guidelines for postings/transfers of officers:
It has now been decided by the President that postings/ transfers of officers of Grade-17 and above in all Occupational Groups/Services/Ex-cadre posts, etc., will, henceforth, be made according to the Rules of Business, 1973 by the respective Ministries/Departments who are responsible for their administrative control.
2. The following guidelines may, however, be observed by the Ministries/Departments regarding policy concerning transfers:---
(1) Transfer between Pakistan and foreign countries should normally be made only after 3 years. If an officer is required to be transferred earlier than 3 years, the orders of Establishment Division are required to be obtained.
(2) Officers should not be transferred as a result of their taking leave for short periods for rest and recreation for which only acting arrangements should be made.
(3) Ordinarily 3 months' notice should be given to government servants who are transferred from one station to another to enable them to plan their affairs.
(Authority. Establishment Secretary's D.O. Letter No.1/24/78, C.P. dated 30-9-1978)
SL.No.3: Normal Tenure of posting:
It has been observed that government instructions with regard to normal tenure for an officer on the same job/post issued from time to time are not being followed with the result that in some Ministries/Divisions/Departments, officers have continued to work on the same desk for unduly long periods. The position has been reviewed and the competent authority has laid down the following criteria for posting/ transfer of the officers working in Ministries/Divisions and the attached Departments/Subordinate Offices, Autonomous and Semi-Autonomous Organizations, under their administrative control:
Posting/Transfers within Pakistan
(i) The normal tenure of an officer on the same post should be three years. Posting of an officer on the same post beyond the normal tenure will require concurrence of the competent authority, in each case.
(ii) Shifting of the officer may be phased in a manner that no dislocation in the official work takes place due to large scale transfers.
(iii) Ordinarily, three months' notice should be given to the officer who is to be transferred. Exception may, however, be made in case the officer is required to be shifted immediately in the public interest with the approval of the competent authority.
(iv) Orders for premature transfers in the Ministries/ Divisions/Departments of the Federal Government should be referred to the Establishment Division; and in the Autonomous/Semi-Autonomous Organization to the administrative Ministry concerned.
(v) These instructions will not strictly apply to…
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