2012 PLP (C (PLC(CS))

CH. MUHAMMAD YOUNIS, J.

Through this constitutional petition, the petitioner has assailed his transfer order dated 4-7-2011 whereby he was transferred as DSPS D.G. Khan to Muzaffargarh.

2. The learned counsel for the petitioner contends that the petitioner was performing his duties as DSPS with Pakistan Post Rawla Kot wherefrom he was transferred to D.G. Khan on 21-12-2010. The petitioner is presently working at the said post. Vide order dated 12-5-2011 he was transferred to Muzaffargah and the respondent No.3 was transferred to D.G. Khan in his place. The impugned order dated 12-5-2011 was assailed before this court in W.P. No.5933 of 2011, which was disposed of on 18-5-2011 by remitting a copy of the writ petition to the respondent No.1 for redressal of the grievance of the petitioner in terms of Clause 278 of the Post Office Manual Volume VI and the respondent No.1 was directed to decide the same within one month. Till then the operation of the impugned order was suspended. The petitioner has again filed the instant writ petition as his grievance was not redressed and the respondent No.1 without giving any notice to the petitioner passed a mechanical order dated 4-7-2011 maintaining the earlier order. The impugned order dated 4-7-2011 has been assailed on the ground that same is against law and facts as the provisions of Clause 331 of the Pakistan Post Office Manual Volume V regarding posting and transfer policy have been flouted by not giving a three months notice to the petitioner before his transfer. The policy of Establishment Division has also not been followed. So, the impugned order dated 4-7-2011 is liable to be set aside and it has been prayed that the petitioner may be allowed to continue performing his duties at his present place of posting. It has further been argued that transfer order, of the petitioner was passed just to please the MNAs and MPAs of the area and to accommodate the respondent No.3, which was violative of the guidelines given by the Hon'ble Supreme Court of Pakistan in "Zahid Akhtar v. Government of the Punjab" PLD 1995 SC

530. In support of his arguments, the learned counsel for the petitioner referred to PLD 2011 SC 963=2011 PLC (C.S.) 1489 (Supreme Court of Pakistan) wherein it was held that when a transfer is made contrary to the relevant rules and against the public interest and without allowing the petitioner to complete his tenure, the court is empowered to examine such administrative action by applying the principle of judicial review. He also referred to 2011 PLC (C.S.) 648 (Islamabad High Court) in support of his arguments.

3. The learned D.A.G. assisted by the learned counsel for the respondents argued that this writ petition is not maintainable. The petitioner was transferred on administrative grounds in the public interest. The transfer of the petitioner has been made by the competent authority i.e. Director General/Chairman PPSMB (Pakistan Postal Services Management Board) which falls within the purview of exceptions to Rule 278 of the Post Office Manual Volume IV. According to this exception no notice is required to be given in case the transfer is made in the public interest with the approval of the competent authority. The petitioner was not transferred under any political influence. It was further maintained that this court had no jurisdiction in service matters due to bar of Article 212 of the Constitution of Islamic Republic of Pakistan 1973. The petitioner if aggrieved can approach the Federal Services Tribunal having jurisdiction to entertain the petitions relating to service matters. The learned D.A.G. referred to 2007 SCMR 54, 2008 SCMR 583, 2009 SCMR 61, PLD 1997 SC 351 and 1998 SCMR 1948 in support of his arguments.

4. I have considered the arguments advanced from both the sides.

5. As regards the case-law referred to above by the learned counsel for the petitioner (PLD 2011 SC 963=2011 PLC (C.S.) 1489), the facts and circumstances of the said case are quite distinguishable from those of the present one. The said order was passed in suo motu jurisdiction by the Hon'ble Supreme Court of Pakistan in a given set of circumstances.

6. The apex Court held in 2007 SCMR 54 [Peer Muhammad v. Government of Balochistan through Chief Secretary and others]:

"that orders of departmental authorities, even though without jurisdiction or mala fide could be challenged only before the Services Tribunal and jurisdiction of Civil Court including High Court was specifically ousted. Plea of mala fide did not confer upon High Court jurisdiction to act in the matter in view of constitutional ouster as contained in Article 212 of the Constitution. Services Tribunal had exclusive jurisdiction to interfere in such-like matters. Supreme Court declined to interfere in the judgment passed by the High Court. The question of posting of a Government servant squarely falls within the jurisdictional domain of competent authority, subject to law and rules made thereunder. The question of posting/ transfer relates to terms and conditions of a Government servant so Services Tribunal has the exclusive jurisdiction to dilate upon and decide such matters. The jurisdiction of High Court cannot be invoked to get such controversies resolved."

7. In view of the case-law referred to above, it is observed that jurisdiction of this court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. A Government servant can be posted and asked to serve anywhere. No employee has any vested right to be posted at any particular place. In 1998 SCMR 2280 [Khalid Mahmood Wattoo v. Government of the Punjab] a similar view was taken by the apex Court and it was held that constitutional petition by a civil servant under Article 199 of the constitution in relation to any matter connected with the terms and conditions of his service in respect whereof the Services Tribunal has jurisdiction, was not maintainable in view of the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

8. In the light of above discussion, this writ petition is not maintainable so the same is hereby dismissed. H.B.T./A-37/L Petition dismissed.