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Petitioner: AMJAD RAZA KHAN VS Respondent: GOVERNMENT OF PUNJAB
1998 P L C (C
1998 P L C (C.S.) 891
[Supreme Court of Pakistan]
Present: Sajjad Ali Shah, C. J., Zia Mahmood Mirza and Sh. Riaz Ahmad, JJ
AMJAD RAZA KHAN and another
versus
GOVERNMENT OF PUNJAB through Secretary, Local Government and Rural Development Department, Lahore and 4 others
Civil Petition No. 236 of 1995, decided on 5th July, 1995.
(On appeal from the order dated 7-5-1995 of the Lahore High Court, Lahore, in Writ Petition No. 12481/94).
Punjab Civil Servants Act (VBI of 1974)---
----S. 9---Constitution of Pakistan (1973), Arts. 199, 185 & 212---Transfer of civil servants---High Court under its Constitutional jurisdiction under Art. 199 of the Constitution staying order of transfer of petitioners-- Validity---Government had raised objection in High Court with regard to jurisdiction of High Court and also had contended that petitioners having not availed Departmental remedy, resort to High Court was premature-- Government had also raised plea that appointment of respondents to specified posts had been made by transfer and not by deputation---Question of jurisdiction being of paramount importance, High Court should have decided such question in the first instance---Record also indicated that stay order had been granted by High Court after about seven months of institution of Constitutional petition---Held, High Court should decide question of jurisdiction and stay order having been granted, proper course for High Court would be to dispose of main petition finally including question of jurisdiction, within two weeks from pronouncement of the order of Supreme Court.
Ch. Ijaz Ahmed, Advocate Supreme Court with Malik Mehr Khan, Advocate-on-Record for Petitioners.
Maqbul Elahi Malik, Senior Advocate Supreme Court for Respondents Nos. 3 and 4.
Date of hearing: 5th July, 1995.
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.
A.A./A-68/S Case remanded.