2015 P L C (C.S.) 318
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail , J
ABDUL REHMAN
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others
Review Application No.12 of 2013 in Constitutional Petition No.655 of 2013, decided on 2nd
June, 2014.
(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---
----R. 7---Civil Procedure Code (V of 1908), Ss.114, 117 & O.XLVII, R.1---Constitution of
Pakistan, Arts.199 & 212---Civil service ---Tr ansfer and posting--- Jurisdiction of High Court
under Art.199 of the Constitution---Scope ---Review of order passed under constitutional
jurisdiction ---Scope ---By virtue of S.117, C.P.C., provisions of the Code of Civil Procedure,
1908, were made applicabl e to High Court ---Power and procedure of review jurisdiction were
governed by S.114 and O.XLVII of C.P.C.; and R.1 of O.XLVII, C.P.C. provide the scope of
review jurisdiction ---Review, was only permissible and maintainable, if conditions stipulated in
R.1 of O.XLVII, C.P.C., were fulfilled, and not otherwise ---Matter in the present case, related to
"transfer and posting" on a particular post ---Said transfer and posting was solicited on basis of
mutual transfer ---Matter of transfer and posting of civil serva nt being relatable to the terms and
conditions of his service, same fell within the exclusive domain of the Service Tribunal; which
was competent Authority to consider the validity of transfer order, if the same was issued
without lawful authority, and was coram non judice ---Constitutional jurisdiction of the High
Court, was ousted by virtue of Art.212 of the Constitution---Transfer, posting and promotion of
civil servants, were governed by Balochistan Civil Servants (Appointment, Promotion and
Transfer) Ru les, 2009; and its Part II, R.7(1) related to appointments by promotion or transfer ---
Assignment of 'transfer and posting' was prerogative of the Government only; and civil servant
could not be allowed to decide the place of his posting according to his whims and wishes ---
Constitutional petition was rightly dismissed by High Court, in circumstances ---Review was
declined.
Peer Muhammad v. Government of Balochistan 2007 SCMR 54; Islamic Republic of
Pakistan v. Dr. Safdar Mahmood PLD 1983 SC 100; Mst. Shag ufta Yunus v. Director of
Education 1992 PLC (C.S.) 906; Dr. Alif Arif v. Secretary Health, Government of Punjab PLD
1993 Lah. 286; Syed Afzal Ahmed Haidri v. Secretary Defence Production Division, Ministry of
Defence, Rawalpindi 1991 SCMR 477; Miss Rukhsa na Ijaz v. Secretary Education, Punjab 1997
SCMR 167; Rafique Ahmed Chaudhry v. Ahmed Nawaz Malik 1997 SCMR 170; Rashid Ahmed
v. Mst. Jiwan 1997 SCMR 171; Syed Mazhar Hussain Bukhari v. Secretary, Government of
Punjab 1998 SCMR 1948; Muhammad Nadeem v. Dis trict Officer Revenue and Estate Peshawar
2005 PLC (C.S.) 573 and Nazir Hussain (Ex -Director Excise and Taxation), Administrator,
Auqaf N. -W.F.P. Peshawar v. N.- W.E.P. through the Chief Secretary 1992 SCMR 1843 ref.
(b) Civil Procedure Code (V of 1908) ---
----S. 114 & O.XLVII ---Review ---Power, procedure, aim and scope ---Main aim of power of
review, was to enable the correction of error alone and nothing more ---Review was not equated
with an appeal ---Review, could not be made the pretext for rehearing th e case---Power of review
of a court's own judgment/order, was only discretionary ---Reason for conferring discretionary
power of review to a court, was to prevent injustice being done ---Power of review, was meant to
enable correction of error ---Review in no case should amount to rehearing the case on merits;
and case could not be re -opened on pretext of review.
Fatima v. Shah Muhammad PLD 1975 SC 318 and Faqir Muhammad Khan v. Akbar
Shah PLD 1973 (sic) 110 ref.
Applicant in person.
Nemo for Respondents.
Date of hearing: 17th April, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- This review application is
directed against the order dated 16th September, 2013 passed in C.P. No.655 of 2013, whereby,
the constitution petition unde r Article 199 of the Constitution of Islamic Republic of Pakistan
1973, filed by the petitioner was dismissed in limine in the following terms;
"Learned counsel states that the petitioner and one Muhammad Younis had agreed
amongst themselves for mutual posting/transfer and summary was moved in this regard, which
was approved by the Chief Minister, however, the Secretary Secondary Education is not
implementing the same and through this petition he seeks the implementation of the said mutual
posting/transf er. He further states that certain junior officers have been assigned ditties on higher
grades.
Two distinct remedies have been sought; one of a personal nature and one where the
colour of public interest is being given in respect of certain alleged ill egal appointments. As far
as the matter of non -implementation of the mutual posting/transfer is concerned the same lies
within the domain of the Government and does not call for interference by this court in its
constitutional jurisdiction. Learned counsel has also failed to point out as to under which
provision mutual transfer/posting can be resorted to by government servants.
That as regards the matter of assailing the appointment of junior officers allegedly against
senior posts such matter cannot be clubbed along with the instant matter as it is a separate and
distinct cause of action and as the alleged incumbent has not been posted to the post held by the
petitioner or sought by him."
2. The applicant was present in person and stated that he himsel f will argue the case,
because his counsel was not in attendance, however, he could not satisfy us how this review
application was maintainable and just reiterated the prayer clause of review application and main
petition. Therefore, in the interest of jus tice, we have decided to consider the questions involved
in this review application.
3. The petitioner has made four different prayers in this application. Firstly, the order dated
16th September, 2013 is assailed to be reviewed/recalled and petition was sought to be decided
on its own merits. Secondly, to declare that the impugned notification dated 3rd July, 2013,
pertaining to posting of respondent No.3 is without lawful authority. Thirdly, directions be given
to the official respondents to appoint the petitioner as Deputy Director (B -18) in the Directorate
of Education. Fourthly, to initiate contempt proceeding against the official respondents for
violating the order dated 11- 6-2012 passed in C.P. No.429 of 2012 Naseem -ur-Rehman Khan v.
Government of B alochistan and other.
4. By virtue of section 117, C.P.C. the provisions of the Code of Civil Procedure, 1908
("CPC") are made applicable to the High Court. The power and procedure of review jurisdiction
are governed by section 114 and Order XLVII of the C.P.C. and Rule I of Order XLVII provides
the scope of review jurisdiction. The review application can only be entertained when applicant
establishes that "on discovery of new and important matter or evidence, which after the exercise
of due diligence was not within his knowledge, or could not be produced, on account of some
apparent error or mistake, or for any other sufficient reasons, may apply to the court which
passed the order". The review is only permissible and maintainable if conditions stipulated in
Order XLVII are fulfilled and not otherwise.
5. The petitioner's contention as narrated in the main petition and in the instant application
mainly relates to "Transfer and Posting" on particular post. Moreover, the 'transfer and posting'
was solicite d on basis of mutual transfer. It is well- settled by now that maker of transfer and
posting of civil servant are relatable to the terms and conditions of his service, therefore, fall
within the exclusive domain of the Service Tribunal, which is competent a uthority to consider
the validity of transfer order if issued without lawful authority and is corum -non judice. The
constitutional jurisdiction of the High Court is ousted by virtue of Article 212 of the
Constitution, notwithstanding, the fact that the tra nsfer order is based on mala fide, corum non
judice or issued without lawful authority. Reference may be made to the following precedents: ---
(i) Peer Muhammad v. Government of Balochistan (2007 SCMR 54)
(ii) Islamic Republic of Pakistan v. Dr. Safdar Mahmood (PLD 1983 SC 100).
(iii) Mst. Shagufta Yunus v. Director of Education (1992 PLC (C.S.) 906).
(iv) Dr. Alif Arif v. Secretary Health, Government of Punjab (PLD 1993 Lahore 286).
(v) Syed Afzal Ahmed Haidri v. Secretary Defence Production Divis ion. Ministry of
Defence, Rawalpindi (1991 SCMR 477).
(vi) Miss Rukhsana Ijaz v. Secretary Education, Punjab (1997 SCMR 167).
(vii) Rafique Ahmed Chaudhry v. Ahmed Nawaz Malik (1997 SCMR 170).
(viii) Rashid Ahmed v. Mst. Jiwan (1997 SCMR 171).
(ix) Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab (1998 SCMR 1948).
(x) Muhammad Nadeem v. District Officer Revenue and Estate Peshawar (2005 PLC (C.S.)
573).
(xi) Nazir Hussain (Ex -Director Excise and Taxation), Administrator, Auqaf N.- W.F.P.
Peshawar v. N. -W.E.P. through the Chief Secretary (1992 SCMR 1843).
The grievance of transfer and posting cannot be called in question before the High Court
under Article 199 of the Constitution.
6. The transfer, posting and promotion of civil s ervants are governed by the Balochistan
Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 (Rules) and its Part -II Rule
7(1) relates to Appointments by Promotion or Transfer, which prescribes that the promotion and
transfers to the posts in basic pay scale (BPS) 17 and above or equivalent shall be made on
recommendation of the Provincial Selection Board. The Rules are totally silent about any such
facility of mutual transfer. The assignment of 'transfer and posting' is prerogative of the
gover nment only, and civil servants cannot be allowed to decide the place of their posting
according to their whims and wishes. It was rightly held in order dated 16- 9-2013 that under
which provision the mutual posting/transfer can be restored to by government servant.
7. The multifarious remedies under the garb of review application were sought and except
the initial prayer clause, rest of the prayers do not lie led thin the scope of a "Review
Application". A prayer for contempt can also not be made in a revi ew application because
contempt would be of an order/judgment, which is incompatible with seeking a review of the
same. Thus, the question of initiating contempt proceeding in review application is without any
substance and logic.
All the facts now being alleged by the applicant and the documents being relied upon
were available on record at the time of order in question and the applicant has miserably failed to
point out any apparent error or mistake in the order in question. It is settled law that the main aim
of power of review is to enable the corrections of error alone and nothing else. The review is not
equated with an appeal. Review could not be made the pretext for rehearing the case. The power
to review a court's own judgment/order is only discretionary and the reason for conferring
discretionary power of review to a court was to present injustice being done. The powers of
review are meant to enable correction of an error. A review in no case should amount to
rehearing the ease on merits and case cannot be re -opened on pretext of review. Reference is
made to Hussain Bakhsh v. Settlement Commissioner, PLD 1970 (sic) 1; Fatima v. Shah
Muhammad PLD 1975 SC 318 and Faqir Muhammad Khan v. Akbar Shah PLD 1973 (sic) 110.
Therefore , for the above reasons application is dismissed in limine.
HBT/14/Bal. Application dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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