2012 PLP (C (PLC(CS))

MUHAMMAD YAWAR ALI, J.

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner seeks setting aside of an order dated 27-8-2011 issued by respondent No.1, whereby the petitioner who was working as Deputy Director Architecture Multan was transferred and posted as Deputy Director Architecture Faisalabad.

2. The learned counsel for the petitioner submits that the impugned order of transfer is tainted with mala fide and is liable to be set aside on this ground alone. The impugned order of transfer has been issued in order to oblige respondent No.5 who wields a lot of political influence. The petitioner has always worked meticulously and there is no complaint pending against him. Since the impugned order has not been passed in the exigency of service, the same is liable to be declared illegal and set aside.

3. The learned law officer has vehemently opposed the petition and submitted that this petition is not maintainable on account of a bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

4. Transfer of a civil servant is a matter relating to the terms and conditions of service and the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 would be fully attracted. The august Supreme Court of Pakistan in Khalid Mehmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 has held that even where an order relating to the terms and conditions of service of a civil servant has been passed on political considerations and is mala fide still the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 would be attracted.

5. It is trite that this court while exercising its extraordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 would have no jurisdiction to interfere in matters relating to the terms and conditions of service of a civil servant. Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 reads as follows:

"

212. Administrative Courts and Tribunals.

(1) Notwithstanding anything herein before contained, the appropriate Legislature may by Act {provide for the establishment of} one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of :-- (a) matters relating to the terms and conditions of persons {who are or have been) in the service of Pakistan, including disciplinary matters; (b) matters relating to claims arising from tortious act of Government, or any person in the service of Pakistan; or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law. (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 proceeding 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): Provided that the provision of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, {Majlis-e-Shoora (Parliament)} by law extends the provisions to such a Court or Tribunal. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.

6. The objection raised by the learned law officer has a lot of force. The merits of the case cannot be gone into by this court without first determining whether it has the jurisdiction to decide the lis in hand as has been held by the Apex Court in Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others 2011 SCMR

592. In the instant case the petitioner has challenged his order of transfer and in the light of the judgments referred to above it can safely be concluded that this court has no jurisdiction to issue a writ in favour of the petitioner.

7. Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 stipulates that the decisions of Apex Court would be binding on all other courts and reads as follows:-

189. Decisions of Supreme Court binding on other Courts.

Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.

8. Principles of law enunciated by the apex Court and all decisions which are rendered are not only of persuasive value but are also binding on all other courts as has been held in Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351.

9. Since transfer is a matter relating to the terms and conditions of service of a civil servant, the instant petition is held to be not maintainable and stands dismissed. H.B.T./M-5/L Petition dismissed.