IN THE HIGH COURT OF SINDH, KARACHI

C.P.No.D-2857 of 2013

 

Farnaz Riaz

 

V/s.

 

Province of Sindh through Chief Secretary

and others

 

Present:                      Mr. Justice Munib Akhtar,
Justice Mrs. Ashraf Jahan.

 

Date of Hearing        :           16.04.2015

 

Petitioner                   :          Through Mr. M.B.Khatian,

 Advocate.

 

Respondents             :           Through Mr. Abdul Jalil Zubaidi,

A.A.G.

                      

 

JUDGMENT

 

MRS. ASHRAF JAHAN, J.:-          The Petitioner Farnaz Riaz, Associate Professor, (BS-19), working in Education and Literacy Department, Government of Sindh, by way of present petition has challenged the order dated 31.05.2013, whereby she was transferred from the post of District Officer Education (Elementary), Karachi and directed to report to the Education and Literacy Department, Government of Sindh for further orders.

2.                     The facts giving rise to the present petition, as disclosed by the Petitioner, are that she was promoted on 31st October, 2008 from BS-18 to BS-19 and was discharging her duties as the District Education Officer, Karachi with an unblemished and spotless service record.  It is her case that on 31.05.2013 a notification was issued from the office of Respondent No.2, under the signature of Respondent No.5, whereby she was transferred from the post of District Officer Education (Elementary), Karachi without any cogent reason except malafide intention and directed to report to the Education and Literacy Department for further orders.  According to her, as per Rules of Business, Government of Sindh, Respondent No.2 (The Chief Secretary) was not the competent authority to transfer a BS-19 officer, but the Chief Minister, Sindh was the competent authority to transfer the same.  Thus, the impugned notification, issued in gross violation of the Rules of Business, was issued in illegal exercise of power by the Respondent No.2 and to cause harassment to her, therefore, she prayed that it may be declared as illegal, ultra vires and without jurisdiction. Moreover she has prayed that she may be restored to her original position as District Officer Education (Elementary), Karachi and the Respondents be directed not to cause any further harassment to her.

3.                     In the present petition, the Respondent No.4 filed comments, wherein preliminary legal objection regarding maintainability of the present petition has been agitated.  It is the case of the Respondent No.4 that the instant petition is not maintainable as no cause of action arose to the Petitioner for filing the same and the petition is also barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution). The appointments of civil servants and the terms and conditions of their service are regulated by an Act and any grievance arising in respect thereof is to be dealt with by the Services Tribunal.  The Tribunal is the sole Adjudicator of all disputes relating to terms and conditions of civil servants and only power of judicial review lies with the High Courts.  It is further submitted that a party has no discretion to ignore the provisions of the Constitution to select a forum of his/her own choice and the Supreme Court has disapproved such tendency in number of cases, therefore, the present petition merits no consideration and is liable to be dismissed.

4.                     In addition to this, the department has also furnished detailed parawise comments, controverting the case of the Petitioner. It has been stated that on 06.10.2011 the Director Enquiries (II), Enquiries and Anti-Corruption Establishment (ACE) forwarded complaint of Mr. Bashir Ahmed against the Petitioner, and ACE is probing the matter under Rule 9 of Sindh Enquiries and Anti-Corruption Rules 1993 on the said complaint.  Again vide letter dated 20.10.2011 another complaint of Chaudhary Mohammad Iqbal was forwarded against the Petitioner, alleging that she was involved in corrupt activities, but no action could be taken against her due to her political connections.  Another complaint was forwarded by the Anti-Corruption Establishment regarding corruption, mismanagement, embezzlement and misappropriation of government money by the Petitioner and as per enquiry report dated 11.04.2011, it was recommended that the matter of corruption of the Petitioner alongwith other teachers may be placed before the Anti-Corruption Committee No.1 for seeking permission to hold an open enquiry.  Subsequently, the competent authority while taking into consideration the allegations leveled against the Petitioner issued a notification dated 03.07.2012, directing the Petitioner to relinquish the charge of the post of District Officer Education (Elementary) Female, Karachi and to report to the department for further orders.  The Petitioner being an influential person did not relinquish the charge of said post and got her transfer order withdrawn vide Notification dated 05.12.2012. The ex-Senior Minister for Education and Literacy Department issued directives that she may be allowed to hold an additional charge of the post of District Officer Education (Secondary and Higher Secondary) Female, Karachi in addition to her own duties as DOE (Elementary).  It is alleged that during her posting she made illegal / fake appointments beyond the sanctioned strength, which was proved in an enquiry conducted under the Chairmanship of a BPS-20 ex-PCS Cadre Officer, therefore, the impugned notification was issued.  The competent authority also advised the Respondent No.4 to firm-up charges of allegation against the Petitioner for initiating disciplinary proceedings.  Finally the services of the Petitioner alongwith four other officers, who were involved in making illegal/fake appointments beyond the sanctioned strength in their respective districts, were placed under suspension vide order dated 04.07.2013.  In addition to above, the competent authority also advised Respondent No.4 to approach the Chairman, ACE for registration of cases against all officers/ officials (including Petitioner) involved in the scam by arresting them vide letter dated 16.07.2013.  Looking to the above details of Corruption, the contention of the Petitioner that she possesses unblemished service record is totally incorrect.  It is the case of Respondent No.4 that posting of officers of BS-19 and above have been made with the approval of the competent authority i.e. Chief Minister, therefore, the contention of the Petitioner in this respect is incorrect.  Alongwith the comments the Respondent No.4 has annexed copies of complaints against the present Petitioner vide letters dated 06.10.2011, 20.10.2011, 24.12.2011 and 17.01.2012. Enquiry report dated 11.04.2011 is also placed on record alongwith other letters in respect of transfer and posting of the present Petitioner. 

5.                     The Petitioner also filed Affidavit in Rejoinder, wherein she denied the allegations leveled against her and termed that the notifications and enquiries ordered against her are nothing but mere harassment.  As regards the bar under Article 212 of the Constitution, 1973 she stated that as the Articles 9, 14 and 18 of the Constitution, 1973 have been violated, therefore, the bar under Article 212 does not apply to her case or will not be an impediment to her petition.

6.                     We have heard learned counsel for the parties.  It is contended by learned counsel for the Petitioner that she being Grade-19 officer was illegally and unlawfully transferred by the incompetent authority in violation of Rules of Business, 1986, Government of Sindh.  He has relied upon Rule 21(b) of Government of Sindh Rules of Business, whereby Chief Secretary is competent to transfer only upto Grade-18 Officers and for Grade 19 Officer the competent authority is Chief Minister.  He has also relied upon Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (hereinafter referred to as the APT Rules, 1974) and has submitted that as per table provided under Rule 9(2) at Serial No.9, Chief Minister is the competent authority to order the transfer of BPS-19 officer. Per learned counsel, after grant of the stay order in her favour, the department has become inimical to her and is causing undue harassment to the Petitioner.  In support of his contentions he has relied upon the following case law:-

1.         Syed Mahmood Akhtar Naqvi and others v/s. Federation of Pakistan and others (PLD 2013 S.C 195).

2.         Nasir Abbas Sherwani v/s. Director General, Directorate General of Immigration, Passport Office, Headquarters, Islamabad and another. (2007 PLC (C.S) 1079) .

3.         Allaudin v/s. Chief Commissioner and another (PLD 1959 (W.P) Karachi 282).

7.                     Against this learned A.A.G has submitted that as per Rule 21 of APT Rules 1974, the authority competent to exercise any power under these rules may with the prior approval of the Chief Minister delegate such power generally or for any specific purpose to an officer subordinate to such authority, therefore, the Chief Secretary has rightly issued the impugned notification.  He has also referred before us the table as specified in section 9(2) of the APT Rules 1974, whereby as per serial No.10, Chief Secretary is shown to be the competent officer for issuance of transfer orders in respect of Grade 19 officers.  It is further added by learned A.A.G that though the show cause notice has been issued against the Petitioner, but the proceedings could not be concluded against her as whenever the matter is taken up, she takes the plea of undue harassment and seeks to take advantage of an interim order passed by this Court, directing the Respondents not to harass her, thus creating hurdles in completion of the disciplinary proceedings against her.

8.                     In rebuttal learned counsel appearing for the Petitioner was unable to controvert this legal position, and admitted that since May 2013, the Petitioner is sitting at home and getting the salary, though show cause notice has been issued against her, but the proceedings could not be concluded as yet.

9.                     We have considered the arguments advanced before us and have perused the case record.  First of all we will take up the question of maintainability of this petition regarding which specific objection has been raised by the Respondents by making reference of Article 212 of the Constitution, 1973, which provides establishment of Administrative Courts and Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons in service of Pakistan. For ready reference, same is reproduced as under:

“212.               Administrative Courts and Tribunals.—(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of –

                        (a). matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;

(b). matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or

(c). matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

(2). Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends [and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal [other than an appeal pending before Supreme Court,] shall abate on such establishment]:

Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, [Majlis-e-Shoora (Parliament)] by law extends the provisions to such a Court or Tribunal.

(3). An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.”

The perusal of above referred Article clearly reveals that the objection to the maintainability of this petition in view of bar contained in Article 212 of the Constitution, 1973 is fully attracted and makes the petition incompetent and not maintainable.  Reliance in this regard is placed upon the case of Abdul Bari v/s. Government of Pakistan and 2 others (PLD 1981 Karachi 290).  Moreover, with utmost respect we are of the view that the case law cited by the learned counsel for the Petitioner is distinguishable and not applicable to the facts and circumstances of the present case.

10.                   Admittedly, the Petitioner is an employee of Education and Literacy Department, Government of Sindh, therefore, a Civil Servant. While the grievances agitated by her in this petition challenging the notification of her transfer dated 31.05.2013 squarely falls within the terms and conditions of service specified in the Chapter–II of Sindh Civil Servants Act, 1973, section 10 whereof reads as under:

“10.     Postings and transfers.- Every civil servant shall be liable to serve anywhere within or outside the Province in any post under Government, Federal Government, or any Provincial Government or local authority, or corporation or body set up or established by any such Government:

            Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region:

            Provided further that, where, a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve.”

 

11.                   Since we have come to the conclusion that this Court lacks jurisdiction to address the grievance of Petitioner regarding which exclusive jurisdiction lies with the Sindh Service Tribunal, constituted under the Sindh Service Tribunals Act, 1973, therefore, we have refrained from making any further discussion about other aspects of the matter. We also in this context take guidance from the case of Mushtaq Ahmed and others v/s. Secretary, Ministry of Defence through Chief of Air and Army Staff etc. (PLJ 2007 SC 873).

                        Accordingly, petition is dismissed in limini with costs.          

 

 

Judge

Judge

Manzoor, P.A