ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No. D-877 of 2014

Present: Mr.Justice Muhammad Ali Mazhar.

Mr.Justice Shahnawaz Tariq

Mrs.Zeenat Ahmed……………………..…………..…Petitioner

Versus

Federation of Pakistan & others….…………...Respondents

1.For katcha peshi.

2.For hearing of CMA No.4063/2014.

Date of hearing 06.05.2014.

Mr.Khalid Jawed, Advocate for the Petitioner

Mr.M.M.Aqil Awan, Advocate for the respondent No.2

Mr.Muhammad Arshad Khan Tanoli, Advocate for the respondent No.3

Mr.Asif Hussain Mangi, Standing Counsel.

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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 S.C. 232 (Sarfraz Saleem v. Federation of Pakistan & others). Articles 212(2) & 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 S.C. 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 S.C. 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 & 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 constitution 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-3943/2013 and C.P.No.D-5463/2013 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 & others). Constitution 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. Govt. 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) Govt. 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 S.C. 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 nonsuited.

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 technical and professional officers/experts recruited for particular posts. However, posting/transfer of such officers may also be rotated in their parent departments/cadres as far as possible in accordance with the rules of the post.

(Authority: Establishment Division O.M.No.10/10/94-R.2. dated 22^nd March, 1994)

SL.No.4: Posting of serving husband/wife at the same station:

The government has taken note of the socio-economic problems and hardship faced by husbands and wives in government service due to posting at different stations of duty, and it has been decided to prescribe the following guidelines to facilitate posting of husband and wife at the same station :

(i) Where a request is made for posting at a different station in the same department/service/cadre in which an employee is already serving, the request may be accepted subject to availability of a post in the same BPS.

(ii) If a request involves temporary deputation to another department, it may be proceeded in consultation with the department concerned, and may be accepted on the prescribed terms of deputation subject to availability of a post in the same BPS.

(iii) When a request is made for permanent transfer to absorption in another department/agency, the request may be proceeded in consultation with the department concerned, subject to the condition that in the event of permanent transfer, seniority shall be determined in accordance with the Civil Servants (Seniority) Rules, 1993 (Chapter 2, Sl.No.147).

(iv) If there is a tie between two or more government servants for posting at the station in the same department/unit of an organization, the government servant with greater length of service may be preferred.

(v) Request for posting by a spouse facing serious medical problems may be accorded highest priority.

(vi) Spouses already posted at one station, including those posted on deputation beyond the prescribed maximum period, may not normally be disturbed without compelling reasons of public interest. Requests for extension of deputation period beyond the permissible limit may be considered with compassion if interests of public service would permit.

2. The above guidelines are subject to the following conditions:-

(i) Posting of husband and wife at the same station should not be made by dislocation of any government servant already serving at a particular station unless his transfer is necessitated by compelling reasons of public interest or within the framework of general policy of postings and transfers.

(ii) The prescribed selection authority should be consulted in each case.

(Authority:- Establishment Division O.M. No.10/30/97-R.II, dated 13^th May, 1998).

10. According to the policy guidelines for posting and transfer of the officers it is clear that transfer between Pakistan and foreign countries should normally be made only after three years. It is further provided that ordinarily three months’ notice should be given to the Government servants who are transferred from one station to another to enable them to plan their affairs. It is not the case of the respondents that they have denied Office Memorandum or the instructions made under the Estacode, however a precedent of the learned Division Bench of the Lahore High Court was cited in which it was held that the wedlock policy is merely a policy matter, which is a guideline and has no biding force. With profound respect, we do not agree to the ratio expounded by the learned bench of Lahore high court. The hon’ble Supreme Court in the case of human rights reported in PLD 2011 S.C. 277 took the notice that while re-employing the retired civil servants in police department, Section 14 of the Civil Servants Act, 1973 as well as Instructions contained in Estacode, Vol. I, Edn, 2007 under the heading “Re-Employment” were not considered, which shows that the apex court has given due weightage to the instructions contained in the Estacode.

11. If we look to the transfer order dated 20.2.2014 it is clear that no reason including any exigency or public interest is mentioned in the transfer order due to which the authority was not bound to consider the wedlock policy nor it is mentioned that the work assigned to the petitioner as her new assignment at Rawalpindi cannot be performed by any other officer in Rawalpindi for which the transfer of petitioner was required in violation or disregard of wedlock policy. Even in the counter affidavit filed by the respondent No.2 the main focus was on the maintainability of the petition but it has not been stated that wedlock policy is not applicable to the case of the petitioner. It is further stated that the total length of service of the petitioner is 25 years approximately within which she served 22 years in Karachi and she has also served as Additional C.E.O. Peshawar, CEO Kamra and DML&C Quetta holding additional charge. Mere holding of an additional charge of other station in a particular period of time does not mean that the petitioner cannot be given the advantage and benefit of wedlock policy in future nor this can be presumed that she has waived her right to claim this benefit.

12. In the judgment cited by learned counsel for the petitioner reported in 2011 PLC (C.S) 592 and 2003 PLC (C.S) 1322 the similar question was dilated upon. It was held that if one spouse is 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.

13. We feel no hesitation in our mind to hold that once the competent authority issued wedlock policy, it their responsibility to implement and adhere to such policy guidelines so that the benefit may be given to all such persons who are covered under the wedlock policy. Its implementation cannot be left at the whims and volition of the competent authority to bestow this benefit or advantage on pick and choose basis, while such type of guidelines or policy should be implemented across the board without any discrimination. The petitioner quoted that many persons in the same department were given the benefit of wedlock policy, which has not been denied. The petitioner has attached the office identity card of her husband Dr.Ahmed Hussain who is performing duties in Karachi as Senior Medical Officer, Health Department, Government of Sindh, which fact has also not been denied by the respondents.

14. At this juncture we would also like to hold that no doubt in the normal circumstances, a civil servant cannot claim any particular post as vested right but in this case the petitioner is not claiming any vested right against any particular post but she only wants 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 station. Even this facility was extended through Office Memorandum to such class of Government servants also, to be able to serve at the place of residence of their spouses, irrespective of whether such spouses, are employed with the Government, private sector, or even unemployed.

15. Here it may not be irrelevant to quote Article 35 of the Constitution of Pakistan in which as principle of policy it is provided that the State shall protect the marriage, the family, the mother and the child and according to us the wedlock policy explicated or itinerant around this principle of policy which is intended to ensure the benefit of a family and it also advances social good. Unless there are insurmountable hurdles, requests of the husband and the wife to be posted at one station are required to be considered with an element of compassion and kindness. All learned counsel extensively argued the matter and agreed that this petition may be disposed of at Katcha Peshi stage.

16. As a result of above discussion, this petition is admitted to regular hearing and disposed of in the following terms:-

a. The impugned transfer order dated 20.2.2014 is set aside in view of the wedlock policy,

b. The setting aside of impugned transfer order will not restrict or prevent the competent authority to transfer the petitioner to any other post commensurate to her grade in Karachi.

c. Pending applications are also disposed of accordingly.

Judge

Karachi:-

Dated.12.6.2014