Stereo.HCJDA.

38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT

Writ Petition No.6917/2023

Hafiz Riaz Ahmad etc. Vs. Province of Punjab etc.

Date of hearing 06-02-2023

Petitioners by Mr. Hassan Iqbal Warraich,

Advocate.
Respondents No.1 & 2 Malik Sarood Ahmed, Additional
by Advocate General, Punjab.
M/s Hafiz Tariq Naseem and Jalil-
Respondents No.3 by
ur-Rehman, Advocates.

ABID AZIZ SHEIKH, J. In this Constitutional Petition,

the petitioners have challenged the order dated 25.01.2023

(impugned order) passed by respondent No.2, whereby

petitioners’ posting against the post of „Executive Engineer‟

(XEN) on their Own Pay and Scale (OPS) was set-aside.

2. Relevant facts are that petitioners were appointed as

„Sub-Engineer‟ in Housing Urban Development and Public

Health Engineering Department of Government of Punjab

(Department), subsequently, they were promoted to the rank of

Sub Divisional Officer (SDO) (BS-17) on regular position. The

petitioners No.1 & 2 were transferred and posted as XEN

against OPS vide orders dated 02.12.2022 & 31.10.2022,

respectively. The respondent No.3 alongwith other SDOs in the

Department filed Writ Petition No.78612/2022 challenging the

said posting of the petitioners mainly on the ground that under

 Writ Petition No.6917/2023 -2-

the Punjab Health Engineering Department Service Rules, 1975

(Rules), only an engineer duly registered with Pakistan

Engineering Council (PEC) can be appointed against the post

of XEN, therefore, petitioners’ appointment is hit by relevant

Rules and the law laid down by the Hon’ble Supreme Court in

“MAULA BUX SHAIKH and others Vs. CHIEF MINISTER

SINDH and others” (2018 SCMR 2098). This Court, vide

order dated 12.12.2022, without touching merits referred the

matter to respondent No.2 to treat it as an application on behalf

of the said SDOs and decide the same after hearing all

concerned. The respondent No.2, after hearing all concerned,

vide impugned order held that under the Rules no officer /

person can perform professional engineering work, who does

not possess accredited engineering qualification from the

accredited engineering institution and his name is not registered

as a registered engineer or professional engineer with PEC

under the Pakistan Engineering Council Act, 1976 (PEC Act).

Consequently, the appointment orders of the petitioners (who

are B.Tech (Hons.) degree or Diploma degree holders) working

as XEN on OPS, were withdrawn / cancelled. The petitioners

being aggrieved have filed this Constitutional Petition.

3. Learned counsel for respondent No.3 appeared at the

limine stage and raised preliminary objections to the

maintainability of this petition on the ground that admittedly the

 Writ Petition No.6917/2023 -3-

petitioners are Civil Servants and the impugned order for

cancellation of their posting and transfer orders/appointment

orders relates to the terms and conditions of their service,

therefore, this Constitutional Petition is not maintainable.

4. Learned counsel for the petitioners, on the other hand,

submits that petitioners were appointed against OPS and

therefore, such order does not fall within the terms and

conditions of their service, defined under Chapter-II of the

Punjab Civil Servants Act, 1974 (Act). He placed reliance on

“REGIONAL COMMISSIONER INCOME TAX, NORTHERN

REGION, ISLAMABAD and another Vs. SYED MUNAWAR ALI

and others” (2016 SCMR 859). He further submits that not

only the impugned order has been passed in pursuance to this

Court’s direction but respondent No.2 has also misconstrued the

law settled by the Hon’ble Supreme Court in Maula Bux case

supra, therefore, this Constitutional Petition is the only remedy

available with the petitioners.

5. I have heard the learned counsel for the parties on

threshold question of maintainability of this Constitutional

Petition. There is no dispute that the petitioners are Civil

Servants and performing their duties as such with the

Department. The moot legal question of maintainability is that

whether this Court has jurisdiction in the instant matter or

whether petitioners‟ appointment orders on OPS basis will fall

 Writ Petition No.6917/2023 -4-

within the terms and conditions of their service for invoking the

jurisdiction of Punjab Service Tribunal (PST). In this context,

perusal of the orders dated 02.12.2022 and 31.10.2022 shows

that the petitioners were “transferred” and “posted” as XEN

(OPS). These orders, on face of it, are transfer and posting

orders of the petitioners and mere fact that petitioners were

“transferred” and “posted” against OPS will not change the

nature or status of their posting and transfer orders and exclude

it from the terms and conditions of the service of the

petitioners, including Section 9, Chapter-II of the Act where

posting and transfer is one of the terms and conditions of

service.

6. No specific provision in law or rules referred to, which

prescribes or permits appointment on OPS basis. However, the

Hon’ble Supreme Court in “PROVINCE OF SINDH and others

Vs. GHULAM FAREED and others” (2014 SCMR 1189) while

dealing with OPS posting not only discouraged such practice

but also noted that in exigencies the Government makes such

appointments as a stop gap arrangement. The relevant part of

the Hon’ble Supreme Court’s judgment is reproduced

hereunder:-

“11. We have inquired from the learned

Additional Advocate-General to show us any
provision of law and or rule under which a
Civil Servant can be appointed on higher
grade/post on OPS basis. He concedes that
 Writ Petition No.6917/2023 -5-

there is no specific provision in the law or

rule which permits appointment on OPS
basis. He, however, submitted that in
exigencies the Government makes such
appointments as a stop gap arrangement. We
have examined the provisions of Sindh Civil
Servants Act and the Rules framed
thereunder. We do not find any provision
which could authorize the Government or
Competent Authority to appointment any
officer on higher grade on "Own Pay And
Scale Basis". Appointment of the nature that,
too of a junior officer causes heart burning
of the senior officers within the cadre and or
department. This practice of appointment on
OPS basis to a higher grade has always been
discouraged by this Court, as it does not
have any sanction of law, besides it impinges
the self-respect and dignity of the Civil
Servants who are forced to work under their
rapidly and unduly appointed fellow officers
junior to them. Discretion of the nature if
allowed to be vested in the Competent
Authority will offend valuable rights of the
meritorious Civil Servants besides blocks
promotions of the deserving officers.”

The same view was also followed by the Hon’ble Supreme

Court in “KHAN MUHAMMAD Vs. CHIEF SECRETARY,

GOVERNMENT OF BALOCHISTAN QUETTA and others”

(2018 SCMR 1411), where is held as under:-

“The impugned notification stipulates that

the petitioner and respondent No.3 were
posted/transferred in their “own pay and
scale”. In the case of Province of Sindh v.
Ghulam Fareed (above) it was held, that
posting/transferring a civil servant on his
own pay and scale (OPS) is not legally
 Writ Petition No.6917/2023 -6-

permissible.”

7. It is also relevant to note that the judgment of Hon’ble

Supreme Court in “PROVINCE OF SINDH and others Vs.

GHULAM FAREED and others” supra was against the

judgment passed by PST and in said judgment, the Hon’ble

Supreme Court did not hold that PST has no jurisdiction in

matters regarding appointment and transfer against OPS.

Similarly, in respect of transfer against OPS, the service appeals

were adjudicated by learned PST and matters went up to

Hon’ble Supreme Court in judgments reported as “Sh. AMAR

MAFTOON Vs. GOVERNMENT OF THE PUNJAB through

Secretary Education and another” (1992 SCMR 1869),

“CHIEF SECRETARY, GOVERNMENT OF N.W.F.P. and

others Vs. Syed ZAFARMAND ALI” (2005 SCMR 1212) and

“Mst. SAJIDA JAVED Vs. DIRECTOR OF SECONDARY

EDUCATION, LAHORE DIVISION and others” (2007 PLC

(C.S.) 364) and in none of these judgments, the Hon’ble

Supreme Court held that in matter of appointments/transfers

against OPS the jurisdiction of Service Tribunal is excluded.

8. From the above discussion, there is no manner of doubt

that transfer / appointment orders dated 02.12.2022 and

31.10.2022 of the petitioners despite being OPS are for all

intent and purpose are transfer and posting orders and therefore,

fall within the terms and conditions of their service, prescribed

 Writ Petition No.6917/2023 -7-

under Chapter-II of the Act. The judgment of the Hon’ble

Supreme Court, reported as “REGIONAL COMMISSIONER

INCOME TAX, NORTHERN REGION, ISLAMABAD and

another Vs. SYED MUNAWAR ALI and others” (2016 SCMR

859) and relied upon by the petitioners, is not applicable to the

instant case. In the said judgment, the Hon’ble Supreme Court

held that up-gradation is different from promotion and being

granted through policy is not covered in the terms and

conditions of the service of Civil Servants. However, in the

present case there is no specific policy notified by the

Government for OPS rather it is only followed as stop gap

arrangement in the transfer and posting matters, hence, cannot

be equated with up-gradation.

9. The Hon’ble Supreme Court in various judgments

repeatedly held that in respect of transfer and posting matters,

the exclusive jurisdiction is of the PST and jurisdiction of this

Court is barred under Article 212 of the Constitution of Islamic

Republic of Pakistan, 1973 (Constitution). In this regard,

reliance is placed on “Miss RUKHSANA IJAZ Vs.

SECRETARY, EDUCATION, PUNJAB and others” (1997

SCMR 167), where it was held as under:-

“2. We have heard the learned counsel for

the parties. Both the petitioner and
respondent No. 1 are admittedly civil
servants. Dispute between them relates to
their transfer/posting which is a matter
 Writ Petition No.6917/2023 -8-

relatable to the terms and conditions of their

service. Disputes about these matters fall
within the exclusive jurisdiction of the
Service Tribunal and the jurisdiction of the
High Court is excluded in such matters by
virtue of the express provisions of Article
212(2) of the Constitution. It appears that the
learned Judge in the High Court has not duly
attended to this aspect of the matter before
issuing the stay order. In the circumstances,
we convert this petition into an appeal and
allow it. The impugned stay order is set aside
and it is directed that the High Court should
first decide the question of its jurisdiction
before passing any stay order.”

In “ASADULLAH RASHID Vs. Haji MUHAMMAD MUNEER

and others” (1998 SCMR 2129), the Hon’ble Supreme Court

held as under:-

“In that decision, Full Bench judgment of

the Sindh High Court in the case of Khalil-
ur-Rehman v. Government of Pakistan
(PLD 1981 Karachi 750) was also approved
where it was held that orders, even if mala
fide, ultra vires or coram non judice, fell
within the ambit of Service Tribunal and
jurisdiction of Civil Court including High
Court was ipso facto ousted as a result of
barring provisions of Article 212 of the
Constitution. Reference in the decision of
this Court dated 27-5-1998 in Civil Petition
No.727-L of 1998 was also made to Zahid
Akhtar (PLD 1995 SC 530) and it was
observed as follows:
"Against his transfer, the petitioner
Zahid Akhtar had filed a writ petition
in the Lahore High Court, which was
dismissed as not maintainable in view
of the bar contained in Article 212.
Petitioner filed a petition for leave. In
its decision, this Court referred to
various principles and also the
 Writ Petition No.6917/2023 -9-

Government Transfer Policy to be

followed, but ultimately the petition
for leave was dismissed as not
maintainable. ”
The same view was also expressed by Hon’ble August Court in

“FEDERATION OF PAKISTAN through Secretary

Establishment, Islamabad Vs. M. Y. LABIB-UR-REHMAN and

others” (2021 SCMR 1554) in following terms:-

“The High Court without indulging into the

question of maintainability passed the order
in cyclostyle fashion while assuming the
jurisdiction which is not vested in it. This
Court in the recent judgment dated
21.05.2021 titled as Khalilullah Kakar v,
PPO Balocitistan passed in Civil Appeal
No.909/2020 etc has candidly held that
Article 212 of the Constitution specifically
places an embargo on all other courts
except the Service Tribunal to assume
jurisdiction. It is now established that any
relating to terms and conditions of service is
within the domain of administrative courts
and tribunals established under Article 212
and even if the element of mala fides, ultra
vices or coram non judice is pressed into,
the same can be entertained and decided by
the said courts in its jurisdiction. There is
no denial to this fact that the bare reading
of the said Article is of significant
importance especially with reference to its
exclusive jurisdiction to entertain matters
relating to terms and conditions of service.
Hence, in all eventualities any petition
relating to terms and conditions of service is
to be dealt with by administrative courts
and tribunals specifically established for its
adjudication in pursuance of Article 212 of
the Constitution. As a general principle, the
Writ Petition No.6917/2023 -10-

framers of the Constitution while inserting

the said provision have ousted the
jurisdiction of other courts including the
High Court under Article 199 of the
Constitution. ”

10. There is no cavil that PST has no jurisdiction on the

question of “fitness”, however, the question of eligibility is

different from the question of fitness. The eligibility primarily

relates to the terms and conditions of service and their

applicability to the Civil Servants concerned, and therefore, the

PST has jurisdiction on the question of eligibility, whereas the

question of fitness is a subjective evaluation on the basis of

objective criteria, where substitution for an opinion of the

competent authority is not possible by that of a Tribunal,

therefore, the Tribunal has no jurisdiction on the question of

fitness. This general rule has been enumerated by the August

Supreme Court in “MUHAMMAD ANIS and others Vs. ABDUL

HASEEB and others” (PLD 1994 Supreme Court 539). In the

present case, perusal of the impugned order shows that

petitioners’ transfer/posting orders were cancelled on the

ground that they, being B.Tech (Hons.)/Diploma degree holders

and not accredited engineers registered with PEC, were not

eligible for the post of XEN (OPS) in view of the Rules and

Section 27 of the PEC Act. There is no question of fitness

rather only the question of eligibility is involved in this petition,

therefore, notwithstanding the fact that representation was

 Writ Petition No.6917/2023 -11-

decided in pursuance to direction of this Court, even on this

score this Constitutional Petition is not maintainable. In this

regard, reliance is placed on “CHIEF SECRETARY,

GOVERNMENT OF PUNJAB, LAHORE and others Vs. Ms.

SHAMIM USMAN” (2021 SCMR 1390).

11. In view of the above discussion, the petitioners could not

cross the threshold question of maintainability of this Writ

Petition, therefore, without touching its merits lest it may

prejudice case of any of the parties, the instant petition is

dismissed being not maintainable.

(ABID AZIZ SHEIKH)

JUDGE

Approved For Reporting

JUDGE
Arsalan