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Official Citation: 1995 PLC(CS) 706
Court / Jurisdiction: LAHORE-HIGH-COURT-LAHORE
Parties: MUHAMMAD ASLAM vs GOVERNMENT OF THE PUNJAB
This judicial decision was delivered by the LAHORE-HIGH-COURT-LAHORE. The matter involves proceedings between MUHAMMAD ASLAM and GOVERNMENT OF THE PUNJAB, officially reported as 1995 PLC(CS) 706. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
1995 P L C (C
1995 P L C (C.S.) 706
[Lahore High Court]
Before Ahmad Saeed Awan, J
MUHAMMAD ASLAM
versus
THE GOVERNMENT OF THE PUNJAB through Home Secretary, Civil Secretariat, Lahore and 2 others
Writ Petition No. 352 of 1995, decided on 29th January, 1995.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 199 & 212‑‑‑Existence of alternate remedy‑‑‑Not‑availing of‑‑ Effect‑‑‑Exceptions‑‑‑Transfer of civil servant‑‑‑Challenged in Constitutional petition‑‑‑High Court would not entertain Constitutional petition when other appropriate remedy was available and had not been exhausted except, however, where order in question, was attacked on the ground that same was without authority and that any statutory functionary had acted mala fide or that the order of transfer was passed in a partial, unjust and oppressive manner‑‑‑High Court in such matter in exercise of its Constitutional jurisdiction has power to grant relief to aggrieved party.
Murree Brewery Co. Ltd. v. Pakistan through the Secretary PLD 1972 SC 279 and Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another 1990 SCMR 999 ref.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 199 & 212‑‑‑Transfer of civil servant‑‑‑Bar of jurisdiction‑‑‑Civil servant's appeal against rejection of his representation was pending before Service Tribunal‑‑‑Matter of petitioner's transfer being pending in competent forum could not be considered by the High Court in exercise of its Constitutional jurisdiction‑‑‑Civil servant, however, had failed to make out case of bias or that order in question, had been passed without jurisdiction and that same was in excess of jurisdiction of the transferring Authority---Civil servant s anticipated grievance that his promotion would be affected by mala fide action of Authority was pending adjudication before Service Tribunal which has exclusive jurisdiction in the matter---Civil servant was not entitled to any relief under the Constitutional jurisdiction by the High Court in circumstances.
Malik Saeed Hassan for Petitioner.
Mahmood Hussain Mirza for Respondents.
ORDER
The petitioner Muhammad Aslam is a Store‑keeper in the Civil Defence Directorate Punjab, Lahore; by this writ petition under Article 199 of the Constitution; the petitioner seeks to have the orders of his transfer dated 2‑1‑1995 be declared illegal, void, ab initio, mala fide and without lawful authority and of no legal effect.
2. Brief facts of the petition are that the petitioner was initially recruited as dispenser in the Civil Defence Training Centre, Rawalpindi on 30‑3‑1976; on the disbandment of the said training centre, the petitioner was absorbed as Junior Clerk at Civil Defence Office, Gujrat vide order dated 17‑2‑1979, later on, on the recommendation of Promotion Committee he was designated as Incharge (Medical Store) vide order dated 24‑9‑1979 in the same grade and basic pay scale i.e. BPS‑5 subject to the terms and conditions of the service of the official that he would be liable to be posted/transferred anywhere in the Province of Punjab.
3. The petitioner as alleged after completion of ten years service on 1‑10‑1989 was eligible for promotion to the post of Stores Superintendent in BPS‑16 but was ignored firstly on 13‑10‑1993 and again on 5‑6‑1994; aggrieves by the said promotions; filed representations before the Departmental Authorities on 8‑12‑1993, 8‑2‑1994, 16‑3‑1994 and 30‑6‑1994 respectively except representation dated 30‑6‑1994; the rest representations were rejected The petitioner preferred an Appeal before the Punjab Service Tribunal Lahore bearing No. 1195 of 1994 against the order of respondent No. . dated 25‑7‑1994 by which representation of the petitioner dated 16‑3‑1994 was rejected; the said appeal is still pending before the Service Tribunal.
4. As alleged by the petitioner, the respondent No. 2 was annoyed by the filing of appeal by the petitioner before the Service Tribunal, Punjab, again his order dated 25‑7‑1994; became vindictive and biased hence with mala rid intention, for ulterior motives, dishonest designs and just to wreak his vengeances transferred the petitioner from Medical Department, Civil Defence Directorate, Punjab, Lahore to the Civil Defence Office, Sialkot, against a existing vacancy of Junior Clerk, ‑vide his order dated 2‑1‑1995.
5. I have heard the arguments of learned counsel for both sides as well as the respondent No. 2 in person; have gone through the documents and parawise comments submitted by the respondents.
6. The respondents learned counsel raised preliminary objection that the writ petition is not maintainable as the petitioner has other appropriate remedy as already his appeal before the Tribunal is pending and secondly has challenged the very jurisdiction of the respondent No. 2 to pass the impugned order dated 2‑1‑1995.
7. I agree with the arguments of learned counsel for the respondents to the rule that the High Court would not entertain a writ petition when other appropriate remedy is yet available and has not been exhausted but there are exceptions to the rule. One of the well‑recognised exception to the general rule as laid down in case Murree Brewery Co. Ltd. v. Pakistan through the Secretary (PLD 1972 C 279 is that a case where an order is attacked on the ground that was wholly without authority and a statutory functionary acts mala fide or in a partial, unjust and oppressive manner; the High Court in the exercise of its writ jurisdiction has power grant relief to the aggrieved party. It was laid down in case Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another 1990 SCMR 999 all actions taken against civil servant with regard to the employment can be challenged on the ground of mala fide of law or mala fide fact, mala fide law is involved where authority no competent has taken an action or the mandatory procedural requirements for taking the action or the jurisdictional requirements for it remained unsatisfied. Mala fide relates to those cases where personal bias, grate or vindictive ness is the prompting force for action ostensibly proper forum and context. The latter category of actions is as much violation of terms and conditions of employment as is the first category because public power is never exhausted or reposed in functionary to be exercised by achieving personal ends like unjust enrichment, vindictiveness or revenge. Terms and conditions of service embrace bona fide discharge of public duties by the repository of public power.
8. The petitioner has already served in Lahore for more than ten years and on the present post for the last three years without any disturbance by the respondent No: 2. The policy of Government of Punjab postulates at para. 16 of the Transfer Policy that an employee should not ordinarily be allowed to stay at Lahore for more than five years as well as due to administrative requirements; in the case of evasion or disregard of orders the officials are liable to disciplinary action. The petitioner has been transferred to his native home Sialkot where his two brothers are already serving at Sialkot and Narowal. The appeal of the petitioner against the representation dated 16‑3‑1994 was rejected by the respondent No. 2 on 25‑7‑1994 in the light of decision of the Supreme Court of Pakistan in Civil Appeal No. 302 of 1990; against which appeal before the Service Tribunal tiled by the petitioner is pending for adjudication; hence the issue cannot be considered at this stage as the matter is sub judice before the competent Court. The allegation of petitioner regarding mala fide and vindictiveness are distorted as he had admittedly exerted political pressure for the cancellation of his transfer orders; the political figure was appraised by the respondent No. 2 in his own hand written assurance that the petitioner would be re‑transferred to Lahore within a fortnight; let him meanwhile comply the orders to maintain discipline of the directorate; if there would have been any malice or vindictiveness in the mind of respondent No. 2 he could have easily initiated proceedings of "misconduct" against the petitioner and his action would have been unjustified.
9. It is easy to allege bias, vindictiveness and malice to some but difficult to prove it; to prove malice; one has to lay firm foundations warranting a finding that the impugned order was passed mala fide or for an oblique purpose in order to punish or to humiliate him. The grievance of petitioner indicates that some of his representations for promotions were not accepted and he had preferred an appeal against the respondent No. 2; such facts alone do not constitute any foundation for a finding that the respondents had incurred displeasure of the petitioner and the impugned order had been passed not on administrative exigencies but only to malign the petitioner and humiliate him due to malice and vindictiveness.
10. The contention of the petitioner that the order of transfer from Lahore to Sialkot was mala fide is without any foundation and is nothing but rigidness of the petitioner. The petitioner has not been able to find any rule or aw which places any bar on the jurisdiction of the competent authority in making the transfer. There is a chain of authorities of Superior Courts wherein has been held that section 10 of the Civil Servants Act, 1973 is clear and in unambiguous terms says that every civil servant shall be liable to serve anywhere within or outside Pakistan on, any post under the Federal 3overnment or the Provincial Government or a Local Authority or a corporation. The impugned order passed by the respondent No. 2 is within his authority and the writ petition is not maintainable before this Court. In fact the petitioner anticipates that the main purpose behind his transfer is to deprive him of his right of promotion; if so, the anticipated grievance relates to violation of terms and conditions of service; as such under Article 212(3) of the constitution; the Service Tribunal has exclusive jurisdiction to deal with the terms and conditions and relief claimed by the petitioner; where already his appeal is pending.
11. Under the circumstances, I find no substance in this petition; which is dismissed accordingly with no order as to costs.
AA./M‑1983/L Petition dismissed.