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Petitioner: MUMTAZ AHMAD KHAN VS Respondent: SECRETARY TO GOVERNMENT OF THE PUNJAB, LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT DEPARTMENT, LAHOREHonorable Justice Mahmood Ahmad BhattiAllah Bakhsh Khan Kulachi,Muhammad Javed Saeed
2016 P L C (C.S.) 526
[Lahore High Court]
Before Mahmood Ahmad Bhatti, J
MUMTAZ AHMAD KHAN
Versus
SECRETARY TO GOVERNMENT OF THE PUNJAB, LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT DEPARTMENT, LAHORE and 2 others
W.P.No.7692 of 2015, heard on 27th May, 2015.
(a) Employee of Provincial autonomous body---
----Transfer of employee---Mala fide---Effect---Two orders of transfer of employee were made within a span of a fortnight---Validity---Employee (petitioner) was not a government servant but was an employee of Local Government Board which was an autonomous body---Where a person complained of the violation of statutory rules or had challenged an order which was tainted with mala fides then constitutional petition was maintainable---Employee was ordered to be repatriated to an authority which had ceased to exist and had become defunct---Validity---Employee was not treated fairly, justly and equitably---Transfer of employee was not in the public interest or was not necessitated by an exigency or his services were not required for a particular post or for a particular station---Employee had been made an officer-on-special duty and had been left in the lurch---If courts of law countenanced and approved such exercise of authority then it would make a mockery of law and travesty of justice---Such acts of department would not give a message of hope to the honest and scrupulous persons and might tend to undermine their confidence---Employees of government or autonomous bodies were not to be made rolling stones---Impugned order passed by the department was declared to have been passed without lawful authority and of no legal effect and authority---Employee would continue to discharge his duties at the place where he was performing the same prior to his transfer--Impugned order was set aside---Constitutional petition was accepted in circumstances.
Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195; Regarding Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963=2011 PLC (C.S.) 1489 and Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional petition---Maintainability---Where a person complained of the violation of statutory rules or had challenged an order which was tainted with mala fides then constitutional petition was maintainable.
Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 rel.
Allah Bakhsh Khan Kulachi for Petitioner.
Muhammad Javed Saeed, A.A.G. for Respondents Nos.1 and 2.
Muhammad Akram Chaudhary for Respondent No.3.
Date of hearing: 27th May, 2015.
JUDGMENT
MAHMOOD AHMAD BHATTI, J.--- Mumtaz Ahmad Khan, the petitioner has filed this petition to assail the vires of a Notification No. LCS (Admn)-7(371)/2012-P dated 19.5.2015 (Annex. "E") issued by the Secretary to Govt. of Punjab, Local Govt. and Community Development Department, Lahore, respondent No.1, whereby the petitioner was ordered to be transferred from TMO, TMA Choubara and Asif Javed, respondent N o.3 was posted as TMO, TMA Choubara in his place.
2. The facts, in brief, are that the petitioner was performing his duties in DG Khan Development Authority. This authority was wound up some ten years ago, rendering the petitioner jobless and obliging him to file W.P. No. 8304 of 2010, which was allowed by the order dated 22.4.2014 directing the respondents to absorb the petitioner in any department of the Government of Punjab. Consequently, the petitioner was appointed as Tehsil Municipal Officer (BS-17), Choubara by virtue of an order dated 10.7.2014 passed by respondent No.1 herein. He assumed the charge as TMO, Choubara but within a span of four months, he developed differences with the Administrator, T.M.O./ Assistant Commissioner, Choubara who dispensed with his services vide order dated 4.11.2014. Once again, the petitioner instituted W.P. No.15123 of 2014. It seems that despite the restraining order dated 7.11.2014, the petitioner resigned to his fate. He, was ordered to take over as TMO, TMA Karor Lal Eason vide order dated 4.5.2015 passed by respondent No.1 herein. In compliance with the aforesaid order he assumed the charge of the office of Tehsil Municipal Officer, TMA Karor Lal Eason, on 6.5.2015. Before he could settle in, he has been ordered to pack up and hand over the charge to Asif Javed (BS-16), respondent No.3 vide the impugned order dated 19.5.2015.
3. It is the contention of the learned counsel for the petitioner that the petitioner is not being allowed to discharge his duties conscientiously. At first, the Administrator, TMA Choubara ordered his repatriation to his parent department vide order dated 4.11.2014, knowing full well that DG Khan Development Authority had become defunct and dysfunctional. When the petitioner challenged this order by filing W.P. No.15123 of 2014, better sense prevailed and respondent No.1 Secretary to the Government of Punjab, Local Government and Community Development Department, Lahore appointed him to the post of TMO, Karor Lal Eason vide order dated 4.5.2015. He complied with the order and assumed the charge on 6.5.2015. Thereafter, he was to be allowed to continue functioning as TMO, TMA Karor Lal Eason. Instead, he was given the marching orders by respondent No.1 vide the impugned order dated 19.5.2015. This time around he has been directed to report to PLGB for further orders, meaning thereby that he has been left in the lurch. It is stressed by him that two orders of transfer of the petitioner within a span of a fortnight are tainted with mala fide, besides being violative of the law laid down by the Honourable Supreme Court of Pakistan in the cases reported as Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530), Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others (PLD 2013 SC 195) and Regarding Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963=2011 PLC (C.S.) 1489. He has concluded his arguments by making submission that if civil servants and public functionaries are made rolling stones, it would cause disquiet and resentment among them. They would become disillusioned and disenchanted, which would erode their confidence.
4. Conversely, the learned counsel for respondent No.3, who entered appearance at limine stage and at whose instance this case is being treated as a PUCCA CASE has argued that respondent No.3 has been reverted to his original post. Therefore, it cannot be contended with any amount of persuasion that he is instrumental in bringing about the down-fall of the petitioner or has any hand in sending him packing to Punjab Local Government Board (PLGB), Lahore. In short, no favour has been shown to respondent No 3. He has also contested the claim of the petitioner that his transfer from Karor Lal Eason is politically motivated. He has also putforth the argument that this Court lacks jurisdiction to entertain this petition in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973.
5. The learned Law Officer remained equivocal and tight-lipped.
6. I have heard the learned counsel for the parties at considerable length and perused the record annexed to the writ petition, in addition to mulling over the cases cited by the learned counsel for the petitioner. To take up the last argument of the learned counsel for respondent No.3 first, it needs to be clarified that the petitioner is not a government servant. He is an employee of the Punjab Local Government Board, Lahore, which is an autonomous body. This is evident from his appointment letter dated 10.7.2014 (Annex. "A/II"). His services are being governed by the Punjab Local Govt. District Service (TMA Cadre) Rules, 2005. It is well-established law that where a person complains of the violation of statutory rules or challenges an order, which is tainted with mala fides, he can maintain a writ petition. Suffice it to make reference to the judgment of the Honourable Supreme Court of Pakistan reported as Zarai Taraqiati Bank Limited and others v. Said Rehman and others (2013 SCMR 642). I am of the view that Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, is not a bar to the entertaining and deciding this writ petition.
7. From the facts set out in the preceding paragraphs, it is crystal clear that the petitioner is getting a raw deal. He is not being treated fairly, justly and equitably. At one time, he was shown the door, while at another time he was ordered to be repatriated to an Authority, which had long ceased to exist and has become defunct. Now, before he could learn the ropes and settle in, he was given the marching orders and asked to pack up and that too within a span of a fortnight. From a perusal of the impugned order, it is crystal clear that it has not been claimed by respondent No.1 either that the transfer of the petitioner is in the public interest or is necessitated by an exigency or that his services are required for a particular post or for a particular station. To all intents and purposes, he has been made an OSD and left in the lurch. If the Courts of law countenanced and approved of such naked exercise of authority, it would make a mockery of law and travesty of justice. Besides, it would not give a message of hope to the honest and the scrupulous and might tend to undermine their confidence, which is not in the interest of anybody in the long run. The employees of the government or autonomous bodies are not to be made rolling stones, as has been held by the Honourable Supreme Court of Pakistan in the cases relied upon by the learned counsel for the petitioner.
For what has been stated above, this writ petition is allowed and the impugned order dated 19.5.2015 passed by the Secretary, Punjab Local Government Board is declared to have been passed without lawful authority and of no legal effect and accordingly is set aside with the result that the petitioner would continue to discharge his duties as TMO, Karor Lal Eason, District Layyah.
ZC/M-238/L Petition allowed.