2012 P L C (C.S.) 1437

[Lahore High Court]

Before Malik Shahzad Ahmad Khan, J

ASIA RIAZ

versus

E.D.O. (EDUCATIONAL), CHAKWAL and 2 others

Writ Petitions Nos.1960, 1961, 1983 and 2006 of 2011, decided on 10th August, 2011.

Punjab Civil Servants Act (VIII of 1974)---

----S. 9---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan,

Arts.199 & 212(2)---Constitutional petition---Maintainability---Petitioners had

challenged their transfer from one place of working to another---Validity---

Constitutional jurisdiction of High Court could only be invoked, if no other adequate

remedy was provided by law, whereas in the present case, the petitioners being civil

servants, were governed by the Punjab Civil Servants Act, 1974---Question of

posting/transfer of a government servant, squarely fell within the jurisdictional domain

of the competent Authority---Petitioners had alternate remedy available under S.4 of the

Punjab Service Tribunals Act, 1974---Constitutional jurisdiction, therefore, could not be

invoked to get said controversies resolved---Article 212(2) of the Constitution, had

ousted the jurisdiction of all other courts---Orders of the Departmental Authority, even

though without jurisdiction, illegal or mala fide, could be challenged only before the

Service Tribunal---Under provisions of S.9 of Punjab Civil Servants Act, 1974, a civil

servant of a Province was liable to serve anywhere within or outside the Province, in any

post under the Provincial or Federal Government---Petitioners could not place on

record any document to show that impugned transfer orders of the petitioners, were

passed under political influence---No fundamental right was involved with regard to the

postings, transfer or promotion of civil servants---Question of infringement of any

constitutional right therefore did not arise, in circumstances.

Abdul Razaq v. Government of Balochistan, Communication Works Physical

Planning and Housing Department, Quetta through Secretary 2010 PLC (C.S.) 1046;

Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others

2007 PLC (C.S.) 824; Muslimabad Cooperative Housing Society Ltd. through Secretary

v. Mrs. Sidiqa Faiz and others PLD 2008 SC 135 and Muhammad Shafiq v. Secretary to

the Government of the Punjab Agricultural Department, Lahore and another 2008 PLC

(C.S.) 273 distinguished.

Secretary to Government of the Punjab Health Department, Lahore and others v.

Dr. Abida Iqbal and another 2009 SCMR 61; Dr. Younis Asad Shaikh v. Province of

Sindh through Secretary, Health Department, Government of Sindh 2009 PLC (C.S.)

735; Agricultural Development Bank of Pakistan v. Imtiaz Ahmed Gill 1999 SCMR 650;

Peer Muhammad v. Government of Balochistan through Chief Secretary and others

2007 SCMR 54; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR

2129 and Superintending Engineer, Highways Circle, Multan and others v. Muhammad

Khurshid and others 2003 SCMR 1241 rel.

Haroon Irshad Janjua for Petitioner (in W.P.No.1960 of 2011).

Mir Muhammad Ghufran Imtiazi for Petitioner (in W.P.No.1961 of 2011).

Raja Amjad Iqbal for Petitioner (in W.P.No.1983 of 2011).

Sardar Sohail Asmat for Petitioner (in W.P.No. 2006 of 2011).

Raja Muhammad Hameed, Asstt. A-G. with Dr. Moin, Litigation Officer, Office of

District Officer (Health).

ORDER

MALIK SHAHZAD AHMAD KHAN, J.--- The instant petition i.e.

W.P.No.1960 of 2011 as also W.P.No.1961 of 2011, W.P.No.1983 of 2011 and

W.P.No.2006 of 2011 are being disposed of together through this single judgment as all

these petitions involve common questions of law and facts.

2. In W.P.No.1960 of 2011, the petitioner has assailed the

impugned order dated 18-7-2011, whereby, her transfer order dated 14-7-2011 has

been withdrawn by E.D.O. (Education), Chakwal.

3. It is the case of the petitioner in W.P.No.1961 of 2011, that she has been illegally

transferred from Government Girls Elementary School Odharwal to Government

Primary School Dab vide the impugned order dated 18-7-2011.

4. In W.P.No.1983 of 2011, the petitioner has challenged the order dated 25-7-2011,

passed by the District Officer (Health), Rawalpindi, whereby, she has been transferred

back from THQ Hospital, Gujar Khan to Basic Health Unit Jhungal Tehsil Gujar Khan.

5. Similarly, in W.P. No.2006 of 2011, the transfer order dated 6-7-2011 of the

petitioner has been withdrawn by the E.D.O (Education) from GPS Dhok Bhatti through

the impugned order dated 30-7-2011.

6. Brief facts as given in the above mentioned writ petitions, are that all the

petitioners are civil servants and they have been transferred from their present place of

postings vide the above mentioned impugned orders. The petitioners have invoked the

constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic

Republic of Pakistan, 1973 in order to challenge their above mentioned transfer orders.

7. In all these petitions, it has been contended by the learned counsel for the

petitioners that the impugned orders of the transfers of the petitioners have been parsed

with mala fide and without proper application of independent mind and the same have

been passed by the respondents due to political pressure and in order to please their

favourists, which have created great inconvenience to the petitioners; that vide the

impugned orders, the petitioners have been transferred to a far of place; that the

petitioners were transferred frequently in the recent past; that the impugned transfer

orders of the petitioners have been passed in violation of the policy/rules on the subject,

whereby, the government servants could not be transferred before the expiry of three

years; that the respondents have passed the impugned orders without any legal

justification; that mala fide acts of the respondents can be corrected

in writ jurisdiction; that the bar of jurisdiction provided under Article 212(2) of the

Constitution of the Islamic Republic of Pakistan, 1973 is not attracted in the cases,

where mala fides on the part of the government functionaries are evident on the face of

record; that the impugned orders are not in conformity with the declared policy of the

government nor the same are in conformity with the provisions of Rule 21(2) read

with Schedule-V of the Rules of Business, 1974; that under Article 4 of the Constitution

of the Islamic Republic of Pakistan, 1973, it is constitutional right of the petitioners to be

dealt with in accordance with law, but the impugned orders have been passed in blatant

violation of the law/policy on the subject. In support of their contentions, the learned

counsel for the petitioners have placed reliance on the cases reported as Abdul Razaq v.

Government of Balochistan, Communication Works Physical Planning and Housing

Department, Quetta through Secretary (2010 PLC (C.S.) 1046), Bashir Ahmed Solangi v.

Chief Secretary, Government of Sindh, Karachi and 2 others (2007 PLC (C.S.) 824),

Muslimabad Cooperative Housing Society Ltd. through Secretary v. Mrs. Sidiqa Faiz and

others (PLD 2008 Supreme Court 135) and Muhammad Shafiq v. Secretary to the

Government of the Punjab Agricultural Department, Lahore and another (2008 PLC

(C.S.) 273).

8. On the other hand, the learned Assistant Advocate-General has vehemently

opposed these petitions on the grounds that under section 9 of the Punjab Civil Servants

Act, 1974, a public servant is liable to serve anywhere within or outside the Province in

any post under the Government of the Punjab, the Federal Government, or any

provincial government; that the instant petitions are not maintainable in view of the bar

provided under Article 212(2) of the Constitution of the Islamic Republic of Pakistan,

1973; that the petitioners have alternate remedy of filing a departmental appeal or

appeal before the Punjab Service Tribunal, Lahore; that these petitions are not

competent against the impugned transfer orders, because the same are in respect of the

terms and conditions of the services of the petitioners; that the petitioners could not

establish any political influence in respect of their transfers orders, therefore, the

present petitions are without any merits; that a civil servant cannot claim, as a matter of

right, to be remained posted at a particular place of his own choice, therefore, all the

above mentioned petitions may be dismissed. In support of his contentions, the learned

Assistant Advocate-General has placed reliance on the cases reported as Secretary to

Government of the Punjab Health Department, Lahore and others v. Dr. Abida Iqbal

and another (2009 SCMR 61), Dr. Younis Asad Shaikh v. Province of Sindh

through Secretary, Health Department, Government of Sindh (2009 PLC (C.S.) 735)

and Agricultural Development Bank of Pakistan v. Imtiaz Ahmed Gill (1999 SCMR 650).

9. Arguments heard and record perused.

10. All the petitioners are admittedly civil servants. They have invoked the

constitutional jurisdiction of this Court under Article 199 of the Constitution of the

Islamic Republic of Pakistan, 1973. The petitioners have challenged their transfer from

the present place of postings through the instant writ petitions. In order to resolve the

controversy involved in the present petitions, it is important to decide the issue of

jurisdiction and maintainability of the instant writ petitions, at the first instance. In this

respect, the provisions of Article 199 of the Constitution of the Islamic Republic of

Pakistan, 1973 are important. Article 199(1) of the Constitution of Islamic Republic of

Pakistan, 1973 is reproduced hereunder:---

"199. Jurisdiction of High Court.-- (1) Subject to the Constitution, a High Court

may, if it is satisfied that no other adequate remedy is provided by law."

It is evident from the perusal of above mentioned Article that the constitutional

jurisdiction of the High Court could only be invoked, if no other adequate remedy is

provided by law. In the instant cases, as mentioned earlier the petitioners, are

admittedly civil servants, as such, they are governed by the Punjab Civil Servants Act,

1974. The question of posting/transfer of a government servant squarely falls within the

jurisdictional domain of the competent authority subject to law and rules made

thereunder. The question of posting/transfer relates to terms and conditions of a civil

servant and, as such, Service Tribunal would have the exclusive jurisdiction to dilate

upon and decide such matters. The petitioners, who are civil servants, can file a

departmental appeal before the next higher authority against the impugned transfer

orders. They have alternate remedy availably under section 4 of the Punjab Service

Tribunals Act, 1974. Section 4 ibid is reproduced hereunder:---

"4. Appeal to Tribunals.--- (1) Any civil servant aggrieved by any final order,

whether original or appellate, made by a departmental authority in respect of any

of the terms and conditions of his service may, within thirty days of the

communication of such order to him or within six months of the establishment of

the appropriate Tribunal, whichever is later prefer an appeal to the Tribunal".

The constitutional jurisdiction cannot be invoked to get such controversies resolved. The

provisions as contained in Article 212(2) of the Constitution of Islamic Republic of

Pakistan, 1973 oust the jurisdiction of all other Courts and orders of the departmental

authority even though without jurisdiction, illegal or mala fide can be challenged only

before the Service Tribunal. Article 212(2) of the Constitution reads as under:---

"212 Administrative Courts and Tribunals.---

(1) .............................................................................

(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 the

Supreme Court,] shall abate on such establishment]."

In light of the above mentioned provisions of law, the constitutional jurisdiction of this

Court cannot be invoked by the petitioners because other adequate remedy is provided

by law and because of the bar of jurisdiction. The plea of mala fide or political influence

does not confer upon the High Court the jurisdiction to interfere in the matter in view of

the ouster as contained in Article 212(2) of the Constitution of the Islamic Republic of

Pakistan, 1973 and only the Service Tribunal has full jurisdiction to interfere in such like

matters. The orders even if mala fide, ultra vires or coram-non-judice fell within the

ambit of Service Tribunal.

11. The learned counsel for the petitioners have cited the case of Abdul Razaq v.

Government of Balochistan, Communication Works, Physical Planning and Housing

Department, Quetta through Secretary (2010 PLC (C.S.) 1046), in which the Hon'ble

Division Bench of Quetta High Court has, inter-alia, held as under:---

-----Ss. 4 & 10-Constitution of Pakistan (1973), Art.199---Constitutional petition--

-Transfer---Petitioner was transferred and assumed charge of the post where he

was transferred, but within three months he was again transferred---Petitioner

had impugned order of his transfer and contended that two illegalities were

committed by the authorities while transferring him; firstly, he was not allowed

to remain on the post at least for two years, while a junior officer of low grade was

posted on the post, secondly action was taken in violation of policy laid down by

the Government---Maintainability of constitutional petition was disputed by the

authorities on the ground that dispute in respect of posting and transfer of a civil

servant fell within the terms and conditions of service, which could not be

challenged by invoking constitutional jurisdiction of High Court; further that the

petitioner was not an aggrieved person within the meaning of Art. 199 of the

Constitution---Petitioner being a civil servant was liable to serve within the

Province or outside, while competent authority had the power to make transfer

and posting of its employees as per provisions of S.10 of Balochistan Civil

Servants Act, 1974 to that extent no illegality was committed in the impugned

notification-Act of transfer however was in violation of policy laid down by the

Government---Transfer and posting of the petitioner was made only on wish of

some Minister, which was neither legal nor proper---Though concerned

authorities had the power to make transfer and posting of their employees, but

that power must be exercised with due care and caution and without mala fide

intention--- Posting of an officer of lower grade on the post of higher grade in the

presence of officer of similar grade was bad in eyes of law---As the posting and

transfer of a civil servant was not included in the terms and conditions of

his service, it would not come within the jurisdiction of Service Tribunal having

exclusive jurisdiction in respect of matters relating to terms and conditions of

service of civil servant---There being violation of law in respect of transfer,

Service Tribunal had no jurisdiction to entertain the matter---In absence of any

other adequate remedy available in the matter, the constitutional jurisdiction of

High Court could be invoked by an aggrieved person and High Court had the

jurisdiction to entertain constitutional petition--Impugned order was set aside,

in circumstances."

In my humble view, the above mentioned judgment passed by the Hon'ble

Division Bench of Quetta High Court is distinguishable on its own facts and in view of

the law laid down by the Hon'ble Supreme Court of Pakistan on the subject. The transfer

of a civil servant is included in the terms and conditions of his service and the same

would come within the jurisdiction of Service Tribunal having its exclusive jurisdiction

in respect of matters relating to terms and conditions of service of civil servant. As

discussed earlier, Article 212(2) of the Constitution has imposed a bar regarding the

matters, which are exclusively triable by the Special Tribunals.

12. The Hon'ble Supreme Court of Pakistan has held in a number of judgments than

the matter of transfer of a civil servant exclusively falls within the domain of Service

Tribunal and constitutional jurisdiction under Article 199 of the Constitution cannot be

invoked in such matters. In the case reported as Peer Muhammad v. Government of

Balochistan through Chief Secretary and others (2007 SCMR 54), the Hon'ble Supreme

Court has held as under:---

----S. 10---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional

jurisdiction of High Court under Art.199 of the Constitution---Scope----Posting

and transfers---Terms and conditions of service---Jurisdiction of High Court---

Scope---Question of posting of a government servant squarely falls

within the jurisdictional domain of competent authority, subject to law and

rules made therefore---Question of posting/transfer relates to terms and

conditions of a government servant, Service Tribunal, therefore, has the

exclusive jurisdiction to dilate upon and decide such matters---Constitutional

jurisdiction of High Court cannot be invoked to get such controversies resolved".

Similar view was also taken by the Hon'ble Supreme Court of Pakistan in another

case of Asadullah Rashid v. Haji Muhammad Muneer and others (1998 SCMR 2129).

13. In the case of Superintending Engineer, Highways Circle, Multan and others v.

Muhammad Khurshid and others (2003 SCMR 1241), the Hon'ble Supreme Court of

Pakistan has expressed regrets when the High Court exercised its constitutional

jurisdiction in respect of the matters, which relate to the terms and conditions of a civil

servant in spite of the ouster clause provided under Article 212(2) of the Constitution of

the Islamic Republic of Pakistan, 1973. In para No.6 of the said judgment, the Hon'ble

Supreme Court of Pakistan has recorded the following findings:---

"6. It is regretted to note that learned Single Judge in Chambers has not kept

in view the principles of ouster(?) as mentioned hereinabove while passing the

judgment impugned. Be as it may, the question of grant of B-16 with

retrospective effect does not fall within the jurisdictional domain of learned High

Court and Service Tribunal has the exclusive jurisdiction to dilate upon the

controversy and decide the same and it squarely falls within its jurisdictional

domain."

14. The judgment reported as Zahid Akhtar v. Government of Punjab through

Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995

Supreme Court 530) also does not support the case of the petitioners. In the said case,

writ petition filed by a civil servant against his transfer order was dismissed by the High

Court and the said judgment was maintained by the Hon'ble Supreme Court of Pakistan.

Similarly, the case reported as Bashir Ahmed Solangi v. Chief Secretary, Government of

Sindh, Karachi and 2 others (2007 PLC (C.S.) 824), referred by the learned counsel for

the petitioners, is also distinguishable from the facts of the present petitions, because in

the said case, the judgment passed by the Sindh Service Tribunal was challenged before

the Hon'ble Supreme Court of Pakistan. It was not a case where a petition under Article

199 of the Constitution of the Islamic Republic of Pakistan, 1973 was directly filed in the

High Court. Similarly the Hon'ble Supreme Court of Pakistan has not held in the said

judgment that constitutional jurisdiction of the High Court under Article 199 of the

Constitution of the Islamic Republic of Pakistan, 1973 can be invoked in the cases of

transfers/postings of civil servants.

15. The learned Assistant Advocate-General has rightly argued that under section 9

of the Punjab Civil Servants Act, 1974, the petitioners are liable to serve anywhere in the

Province of Punjab or even outside the Province. Section 9 supra is reproduced

hereunder:---

"9. Posting and transfer.--- Every civil servant shall be liable to serve

anywhere within or outside the Province in any post under the Government of

the Punjab or the Federal Government or any Provincial Government or a local

authority or a corporation or a body set up or established by any such

Government:

Provided 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."

It is evident from perusal of the above mentioned provision that a civil servant of

a province is liable to serve anywhere within or outside the Province, in any post under

the Provincial or Federal Government as provided in the above referred provision of

law. It is by now well-settled that there is no fundamental right with regard to the

postings, transfers or promotions, therefore, the question of infringement of any

constitutional right does not arise. Reference in this regard may be made to Secretary

to Government of the Punjab Health Department, Lahore and others v. Dr. Abida Iqbal

and another (2009 SCMR 61).

16. The learned counsel for the petitioners could not place on record any document

to show that the impugned transfer orders of the petitioners are passed under political

influence. Even otherwise, the impugned orders, even if, the same are based on mala

fide, ulterior motives, ultra vires or coram non judice, fell within the ambit of Service

Tribunal and jurisdiction of other Courts including the High Court is ipso facto ousted

as a result of barring provision of Article 212(2) of the Constitution. Similarly the other

judgment referred on behalf of the petitioners in the case of Muslimabad Cooperative

Housing Society Ltd., through Secretary v. Mrs. Sidiqa Faiz and others (PLD 2008

Supreme Court 135), is also not applicable in the present case, because the same was not

passed in a service matter, therefore, the same is not relevant for the decision of the

issues involved in the present writ petitions.

17. In the view of the above, all these petitions are without any force and the same are

hereby DISMISSED.

HBT/A-197/L Petitions dismissed.