FORM No.

HCJD/C-121

ORDER SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
W.P. No. 70222 of 2022
Ghulam Mahmood Dogar Vs. Federation of Pakistan, etc.
Sr. No. of Date of
Order with signature of Judge, and that of
order/ order/
Parties’ counsel, where necessary
proceedings Proceeding
08.11.2022 M/s Sohail Shafique, Sardar Akbar Ali
Dogar, Ch. Ishtiaq Ahmad Khan, Syed Ali
Hassan and Muhammad Ahmad Pansota,
Advocates for petitioner.
Mirza Nasar Ahmad, Addl. Attorney General
for Pakistan and Mir Haroon-ul-Rasheed,
Assistant Attorney General for Pakistan.
Ch. Muhammad Jahanzaib, Mr. Tipu Salman
Makhdoom and Rai Shahid Saleem A.A.Gs
for respondent No.3.

Through this constitutional petition filed

under Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973 (“the Constitution”),
petitioner, who as an Addl. Inspector General of
Police (BS-21) in Police Service of Pakistan
(P.S.P.) was posted as Capital City Police Officer,
Lahore (C.C.P.O., Lahore), has called in question
three separate notifications dated 20.09.2022,
27.10.2022 and 05.11.2022 issued by respondent
No.2 (Secretary Establishment Division, Govt. of
Pakistan Cabinet Secretariat, Islamabad) whereby
petitioner was transferred from Punjab
Government to Federal Government, directed to
relinquish the charge and submit his joining report
and services of petitioner were placed under
suspension. The following prayer has been made in
this petition:
“In view of above submissions, it is most
respectfully prayed that the impugned Notification
F. No.12(27)/93-E-3(Police), dated 05.11.2022
whereby the petitioner has been suspended and the
earlier Notification No.F-12(27)/93-E-3(Police)
dated 20.09.2022 whereby the petitioner was
W.P. No. 70222 of 2022 2

transferred and directed to relinquish the charge

and report to the Establishment Division and letter
No.F-12 (27)/93-E-3 (Police) dated 27.10.2022
whereby the petitioner was required to relinquish
the charge and report to the Establishment Division
within 3 days, may be declared arbitrary, illegal,
unlawful, unwarranted, unjustified in the eyes of
law and the same may ordered to be set aside on the
ground that the Provincial Government had
restrained the petitioner from relinquishing charge
till further order of the competent authority/Chief
Minister Punjab.
It is further prayed that till the final disposal
of the instant Writ Petition the operation of the
impugned Notification F. No.12(27)/93-E-3(Police),
dated 05.11.2022, No.12(27)/93-E-3(Police) dated
20.09.2022 and impugned letter No.F-12 (27)/93-E-
3 (Police) dated 27.10.2022 may very kindly be
suspended.
Any other relief which this Honourable
Court deems fit and necessary may also be
granted.”

2. The operative parts of the impugned

notifications dated 20.09.2022, 27.10.2022,
05.11.2022 are reproduced below respectively:
“Mr. Ghulam Mahmood Dogar, a BS-21
Officer of Police Service of Pakistan, presently
serving under Government of the Punjab, is
transferred and directed to report to Establishment
Division, with immediate effect and until further
orders.”

“I am directed to refer to the subject cited

above and to state that you were transferred from
Government of the Punjab and directed to report to
Establishment Division vide this Division's
notification dated 20.09.2022, with immediate effect
and until further orders on the basis of a compliant
with the approval of Prime Minister being
competent authority as envisaged in Rule 6 of the
Civil Servants (Appointment, Promotion and
Transfer) Rules, 1973, for subsequent initiation of
fact finding inquiry but you have not yet submitted
your joining report pursuant thereto.
2. I am, therefore, directed to instruct you to
comply with the above mentioned notification by
submitting your joining report to this Division
within three (03) days of issuance of this letter
failing which disciplinary proceedings under the
Civil Servants (Efficiency and Discipline) Rules,
2020 shall be initiated against you.”

“Mr. Ghulam Mahmood Dogar, a BS-21

officer of Police Service of Pakistan, presently
serving under Government of the Punjab, is placed
W.P. No. 70222 of 2022 3

under suspension, with immediate effect and until

further orders.”

3. It is contended by learned counsel for the

petitioner that no disciplinary proceedings were
pending against petitioner and his services could
not have been suspended merely as a punishment,
which had been done with mala fide intentions as
according to learned counsel for the petitioner an
F.I.R. was registered against some Federal
Minister in the Province of Punjab within
jurisdiction of the petitioner resulting into
initiation of proceedings against the petitioner by
Federal Government. Seeks setting aside of the
impugned orders/notifications.
4. On the other hand, learned Additional
Attorney General has referred to transfer order
dated 20.09.2022 and letter dated 27th October,
2022 issued after approval of Prime Minister being
competent authority as envisaged in Rule 6 of
Civil Servants (Appointment, Promotion and
Transfer) Rules, 1973 requiring petitioner to
relinquish the charge and submit his joining report
to the Establishment Division within three days of
issuance of said letter failing which disciplinary
proceedings under Civil Servants (Efficiency and
Discipline) Rules, 1973 shall be initiated against
him and states that as the matter relates to terms
and conditions of service of petitioner resulting
into suspension of his services, hence, this Court
has no jurisdiction to entertain this petition. When
confronted, learned counsel for the petitioner state
that there is dispute between Federal and
Provincial Governments relating to this matter
wherein jurisdiction of Federal Government to
initiate proceedings against petitioner is under
W.P. No. 70222 of 2022 4

challenge, therefore, this Court has jurisdiction to

decide the matter as the impugned orders are
coram non judice, mala fide and without lawful
authority.
5. The petitioner, who is a member of police
Service of Pakistan, was appointed on 29.07.2022
as C.C.P.O. by the Governor of Punjab, operative
part of notification is reproduced below:
“MR. GHULAM MEHMOOD DOGAR
(PSP/BS-21), Additional Inspector General of
Police, Logistics & Procurement, CPO, Punjab, is
hereby transferred, with immediate effect, and
posted as Capital City Police Officer, Lahore,
against the vacant post in public interest.”

6. Vide order dated 20.09.2022 the Federal

Government had required the services of petitioner
to be transferred to its Establishment Division. The
petitioner has not been released by the Chief
Minister of Punjab, who is stated to be appointing
authority of police officers in Punjab. This has
resulted into tussle between the two Governments
relating to transfer and relieving of the petitioner
by the Provincial Government to join the
Establishment Division of the Federal
Government. The claim of the petitioner is that he
cannot join the Federal Government unless
relieved by the Provincial Government from his
duties. Petitioner has relied upon Rule 23 of the
Punjab Government Rules of Business, 2011 to
state that for the purpose of transfer and posting of
C.C.P.O. approval of Chief Minister is a
mandatory requirement to be obtained before
issuance of transfer order and in view thereof
claims that unless he is relieved by the Chief
Minister, he is not in a position to join the Federal
Government. Further it is claimed that if
W.P. No. 70222 of 2022 5

disciplinary proceedings are to be initiated against

the petitioner by the Federal Government, it has to
refer the case to Chief Secretary, Government of
Punjab for probe or fact finding inquiry and may
initiate proceedings after receiving his findings of
that probe or fact finding inquiry and if such report
is not received within two months, the Federal
Government may on its own proceed against the
petitioner in view of Section 18 of the Efficiency
and Disciplinary Rules, 2020 and not otherwise,
hence, according to the petitioner the Federal
Government has not got any authority to initiate
proceedings against the petitioner without first
having resort to the procedure prescribed in the
said Rule, which is reproduced below:
“18. Procedure of inquiry against civil
servant on deputation or working in other
Governments or organizations etc.—(1) Where an
authority determines to proceed against a civil
servant who is on deputation to any other
Government, department, corporation, body
corporate, autonomous or semiautonomous body,
statutory body or any other organization or
institution, hereinafter referred to as the borrowing
organization, the authority of such civil servant in
his parent department may—
(a) ask the relevant Government or borrowing
organization, to frame charges against the
civil servant and forward the same to his
parent department; or
(b) initiate proceedings against him on its own
under these rules.
(2) In case of members of All Pakistan Service
posted in a Province, Establishment Division may
refer a case to the Chief Secretary concerned for
probe or fact finding inquiry and may initiate
proceedings on the findings of that probe or fact
finding inquiry, or on its own if no findings are
received within two months:
Provided that in case of proceedings against
any Chief Secretary of a Province, the
Establishment Division shall frame the charges and
initiate the disciplinary proceedings with approval
of the Prime Minister.”

7. The main grievance raised by the petitioner

is against his suspension order resulting from non-
W.P. No. 70222 of 2022 6

compliance of his transfer order due to

circumstances beyond his control and this Court
has been approached to set aside the said orders on
the ground that the orders have been passed
without lawful authority and no other equally and
efficacious alternate remedy is available to the
petitioner to call the same in question.
8. Be that as it may, Honourable Supreme
Court of Pakistan in judgment reported as
“Asadullah Rashid Vs. Haji Muhammad Muneer
and others” (1998 SCMR 2129) has categorically
laid down that constitutional petition under Article
199 of the Constitution is not maintainable by civil
servant in relation to any matter connected with
terms and conditions of his service in respect
whereof the Service Tribunal has jurisdiction in
view of Article 212 of the Constitution. Orders,
even if mala fide, ultra vires or coram non judice
fell within the ambit of Service Tribunal and
jurisdiction of Civil Courts including High Court is
ipso facto ousted as a result of barring provision of
Article 212 of the Constitution. The same view
was reiterated by the Honourable Supreme Court
of Pakistan in judgment reported as “National
Assembly Secretariat through Secretary Vs.
Manzoor Ahmed and others” (2015 SCMR 253).
9. In judgment reported as “Syed Arshad Ali
and others Vs. Pakistan Telecommunication
Company and others” (2008 SCMR 314) it has
been laid down as under:
“It is well-recognized that if a right has been
conferred by a statute and a complete mechanism
has been provided for enforcement thereof, there
could hardly be any occasion to invoke the
applicability of fundamental rights. The jurisdiction
of the High Court will be patently barred under
Article 212 of the Constitution of Islamic Republic
of Pakistan, in view of the specific forum provided
W.P. No. 70222 of 2022 7

for redressal of the grievances of the petitioners,

even if the order proposed to be challenged may
have been passed in whatsoever circumstances viz.
mala fide, coram non judice or without jurisdiction.
This principle has been laid down in the case of I.A.
Sharwani and others V. Government of Pakistan
through Secretary, Finance Division, Islamabad
and others 1991 SCMR 1041. Besides it is also
well-settled proposition of law that writ jurisdiction
could not be exercised where equally efficacious
remedy is available.”

10. In view of the principles laid down in afore-

referred judgments all the questions relating to
terms and conditions of service of a civil servant
including the grounds of mala fide, lack of
jurisdiction, ultra vires the jurisdiction, order being
coram non judice and involvement of fundamental
rights can be determined by the Services Tribunal
in view of Article 212 of the Constitution and this
Court lacks jurisdiction to entertain the same in
view of bar imposed by the said Article. Reference
in this behalf may also be made to judgment
reported as “Ali Azhar Khan Baloch and others Vs.
Province of Sindh and others” (2015 SCMR 456)
wherein while holding that transfer, posting and
disciplinary matters fall within terms and
conditions of service of a civil servant, it has been
laid down as under:
“149. Article 212 of the Constitution ousts
the jurisdiction of High Courts and civil Courts in
respect of the matters pertaining to terms and
conditions of civil servants. In other words, the
provisions of Article 212 do not confer a concurrent
jurisdiction to civil Courts, High Courts and
Tribunals. The ouster contemplated under the said
Article is a Constitutional command, and, therefore,
of necessity restricts the jurisdiction of civil courts
and High Courts on the subject, which squarely
falls within the exclusive domain of Tribunals. ”

11. Moreover, in judgment relating to transfer

and posting reported as “Peer Muhammad V.
Government of Balochistan through Chief
W.P. No. 70222 of 2022 8

Secretary and others” (2007 SCMR 54) the

Honourable Supreme Court of Pakistan has
reiterated the established position of law that the
bar contained in Article 212 of the Constitution
ousts jurisdiction of all other Courts even if the
order under challenge is without jurisdiction or
mala fide.
12. The order of transfer of a civil servant
squarely falls within terms and conditions of his
services and resultantly could not be called in
question before this Court. The order to relinquish
the charge and join service at the place of posting
is a continuation of earlier order of transfer and as
a necessary corollary same also falls within the
ambit of terms and conditions of services of civil
servant and beyond jurisdiction of this Court in
ordinary circumstances. Reliance in this behalf can
be placed on judgment reported as Ali Azhar Khan
Baloch’s case mentioned supra.
13. It is already noted above that disciplinary
matters fall within the terms and conditions of
service of a civil servant. The question relating to
suspension of services of an employee came up for
consideration in the case titled “Imdad Ali
Khawaja versus The State and others” (2016
SCMR 2057) wherein the Honourable Supreme
Court of Pakistan while dealing with the order of
suspension of a civil servant who was a police
officer held as under:-
“7. We are also not in agreement with the
observations made by the learned Judge in the
order dated 12.08.2016 that if an enquiry is
initiated, the officer must be placed under
suspension. This is the discretion of the competent
Authority and the discretion can be exercised
considering relevant factors in the enquiry. Under
Police Rule 16.19, during the enquiry against a
police officer, who is involved in a criminal case,
W.P. No. 70222 of 2022 9

such police officer needs to be placed under

suspension in order to avoid his influence.
Therefore, the perception that an officer who is
facing enquiry must be placed under suspension is
against the spirit of service rules. Even otherwise, it
is never encouraged that the High Court in
collateral proceedings can step in the shoes of the
competent Authority by ordering suspension of 'civil
servant' while directing initiating of departmental
inquiry. The discretion in regard to placing an
officer under 'suspension' falls within the domain of
competent authority under the service law, and in
case the competent Authority considers and or
anticipates that during enquiry, the officer may
tamper with the evidence or influence the witnesses
or act in a manner to prejudice the outcome of the
enquiry, the competent authority may suspend such
officer. The learned Judge of the High Court lost
sight of the fact that jurisdiction of the High Court
is barred under Article 212(3) of the Constitution in
relation to the terms and conditions of a civil
servant besides the fact that while hearing a
criminal appeal, High Court cannot pass order of
suspension of police officer in a collateral issue but
can always recommend for enquiry against him if
his conduct during the course of hearing appears to
be unbecoming of a police officer.”

14. From the perusal of the principles mentioned

in the afore-referred judgment it is clear that
suspension order of a civil servant falls within the
ambit of terms and condition of service of the civil
servant which include transfer, posting and
disciplinary matter and same would come under
the domain of the Service Tribunal and hence
beyond the jurisdiction of this Court to interfere
under Article 199 of the Constitution. Reference in
this behalf may also be made to judgment titled
“Abdul Malik versus Government of Punjab and
others” (2019 PLC (CS) 764) passed by this Court
wherein the afore-referred principles have been
reiterated. The operative part of the same is
reproduced below:
“5. The petitioner being PST Teacher and
an employee of Education Department is a civil
servant. The suspension order assailed through the
instant writ petition necessarily falls within the
terms and conditions of service of civil servants.
Mere suspension is not a punishment and
W.P. No. 70222 of 2022 10

suspension of a government servant during the

course of his service simply means that no work is
to be taken from him during the period of his
suspension. Suspension is only a temporary
measure, wherein the petitioner is entitled to
receive his full emoluments in view of the judgment
of the Hon'ble Supreme Court of Pakistan in case
titled Government of N.W.F.P v. I.A Sherwani (PLD
1994 SC 72). The Service Tribunal had jurisdiction
to decide such like matters in due course of law and
writ petition is not maintainable. Reliance is placed
on Abdul Hameed v. Province of K.P.K. through
Chief Secretary, Peshawar and 3 others (2016 PLC
(C.S) 424) and Khawaja Wajid Ali v. District
Coordination Officer and another (2017 PLC (C.S.)
749 (Lahore). In view of the bar contained under
Article 212 of the Constitution of Islamic Republic
of Pakistan, 1973 this Court is not vested with
jurisdiction to interfere in the impugned order dated
28.09.2018 passed by respondent No.3. Reliance
can be placed upon the judgments of august
Supreme Court of Pakistan reported as Ali Azhar
Khan Baloch and others v. Province of Sindh and
others (2015 SCMR 456) and Sh. Riaz-ul-Haq and
another v. Federation of Pakistan through Ministry
of Law and others (PLD 2013 Supreme Court 501).
6. Even otherwise the petitioner has been suspended
under the PEEDA Act, 2006, which provides for its
own mechanism and suspension order is a
preliminary stage in the disciplinary proceedings
initiated against a civil servant which may
culminate into a final order providing cause of
action to the petitioner to seek remedy under the
said law, therefore, this constitutional petition
challenging such order would be premature at this
stage. The petitioner has an alternate efficacious
remedy by approaching the departmental appellate
authority and then the respective Service Tribunal
for redressal of his grievance. Reliance in this
regard is placed on Indus Trading and Contracting
Company v. Collector of Customs (Preventive)
Karachi and others (2016 SCMR 842) and Dr. Sher
Afgan Khan Niazi v. Ali S. Habib and others (2011
SCMR 1813).
7. Discretion of a competent authority to place an
officer/official under suspension fell within the
domain of competent authority under the relevant
service law. In case the competent authority
considered and or anticipated that during enquiry,
the officer may tamper with the evidence or
influence the witnesses or act in a manner to
prejudice the outcome of the enquiry, the competent
authority may suspend such officer. The Hon'ble
Supreme Court observed that the High Court in
collateral proceedings could not step in the shoes of
the competent authority by ordering suspension of
civil servant while directing initiating of
departmental proceedings. Reliance in this regard
is placed on Imad Ali Khawaja v. The State and
others (2016 SCMR 2057).
W.P. No. 70222 of 2022 11

8. For what has been disused above, in view of the

bar contained in Article 212 of the Constitution of
Islamic Republic of Pakistan and availability of
alternate remedy to the petitioner, this
constitutional petition is not maintainable and,
therefore, stands dismissed in limine.”

15. Similar principles have been laid down in

judgments titled “Mian Zafar Haider versus
Deputy Commissioner and others” (2019 PLC
(CS) 658) and “Manzoor Hussain Mari versus
Chief Secretary and 2 others” (2019 PLC (CS)
Note 23) (Sindh).
16. The learned counsel for the petitioner have
relied upon judgment reported as “Federation of
Pakistan through Secretary establishment,
Islamabad Vs. M.Y. Labib-Ur-Rehman and others”
(2021 SCMR 1554) by stating that in the said
judgment it has been held that jurisdiction of the
High Court is not ousted in the matters relating to
terms and conditions of service of civil servants.
The said judgment does not refer to a general rule
rather refers to certain exceptions where
constitutional petition may be entertained,
however, also provides that said jurisdiction is to
be used sparingly and exercising of said
jurisdiction should not frustrate statutory remedies
available under the law which may be against the
legislative intent. It is important to note here that
the order passed by the High Court was set aside in
the said judgment by referring to principles on the
subject, the operative part of which is reproduced
below:
“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 Balochistan passed in Civil Appeal
No. 909/2020 etc. has candidly held that Article 212
W.P. No. 70222 of 2022 12

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 vires 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 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. There
are certain exceptions depending upon the facts and
circumstances on case to case basis because of the
reason that the law is not static and the same is
growing day by day, therefore, it cannot be said
with certainty that in all eventualities the service
issues cannot be called in question in Constitutional
jurisdiction before the High Court. The
Constitutional jurisdiction is always considered as
extraordinary, which is to be exercised in
extraordinary circumstances if so warranted, hence,
the Constitutional jurisdiction cannot be curtailed
stricto senso leaving some room for its application
where it is so demanding for safe administration of
justice and fair play. The superior courts while
exercising Constitutional jurisdiction must satisfy
themselves that they may not interfere or infringe
the jurisdiction of any other statutory forum in any
manner when an equally efficacious/adequate
remedy is available under the statute for the
redressal of the grievances of the litigants. Hence,
the superior courts should be reluctant to frustrate
the statutory remedies while exercising their
Constitutional jurisdiction, which otherwise has to
be exercised sparingly while enabling to advance
the legislative intent. ”

17. In view of the principles mentioned above,

this Court would have jurisdiction in matters of
civil servants only to the extent where the said
matters do not fall within the jurisdiction of
Services Tribunal. In the present case, the
petitioner has remedy to challenge the impugned
notifications/orders before the relevant forums
 W.P. No. 70222 of 2022 13

including departmental authorities and Service

Tribunal, consequently this Court lacks jurisdiction
to entertain the dispute in hand and reliance of the
petitioner on judgment reported as “Federation of
Pakistan through Secretary establishment,
Islamabad Vs. M.Y. Labib-Ur-Rehman and others”
(2021 SCMR 1554) is misplaced as the case of the
petitioner does not fall within the exceptions
referred to in the said judgment as the petitioner
has raised grievance against transfer, direction to
relinquish charge and join at place of posting and
against his suspension order which squarely fall
within terms and conditions of petitioner’s service,
consequently, this petition is not maintainable
before this Court and is disposed of as High Court
lacks jurisdiction to entertain the same. The
petitioner, if advised, may seek appropriate remedy
in accordance with law.

(Muzamil Akhtar Shabir)

Judge
MuzamilMohsin*

Approved for reporting.