1990 PLP (C (PLC(CS))

The petitioner, Muhammad Asif, is a Sub-Engineer in the Buildings Department of the Government of the Punjab. By this petition under Article 199 of the Constitution, he seeks to have the orders of his transfer dated 31-5-1989, 24-8-1989 and 11-10-1989 declared to be without lawful authority "and of no legal effect besides being mala fide".

2. By the order dated 31-5-1989, the Communications and Works Department, Government of the Punjab, transferred the petitioner with immediate effect from the office of the XEN. 1st Provincial Buildings Division, Sahiwal, and placed his services at the disposal of the Secretary to the Government of the Punjab, Education Department, Lahore, for his posting in the Engineering Cell of that department; by the order dated 24-8-1989, the Communications and Works Department, Government of the Punjab, placed the services of the petitioner at the disposal of the Secretary to the Government of the Punjab, Education Department, with immediate effect for further posting in the Engineering Cell of that department, that transfer being "subject to the condition that no deputation allowance will be admissible to the above official for the period he will be working in the Engineering Cell of the Education Department and will retain his lien in his parent office till he is permanently absorbed by the-Education Department". By the order dated 11-10-1989, the orders cancelling the transfer of the petitioner were recalled and the petitioner was directed to report to the Engineering Cell of the Education Department immediately.

3. The main ground of challenge is that the "power of transfer is regulated by the rules on the subject and administrative instructions issued by the Provincial Government contained in letter No. SO (Coord.) 1013/79, dated 16-3-1980 and according to these instructions and rules the Provincial Minister figures nowhere and the department, respondent No. 1, is under no obligation to obey the order of a Provincial Minister which is primarily aimed at satisfying the grudge and vengeance of respondent No. 3 "namely Muhammad Rafique Asim, Sub -Engineer. It is alleged that the local M.PA. "is certainly acting at the behest of respondent No. 3 and he is bent upon to get the petitioner shifted for the benefit of respondent No. 3". To put it shortly, the petitioner's case is that the orders in question are without jurisdiction and were made mala fide.

4. The way in which the orders of transfer, as regards the petitioner were made, recalled and then made again shows a distressing state of affairs. The fact, however, remains that undoubtedly the petitioner is a civil servant within the meaning of the Punjab Civil Servants Act, 1974, and in view of Article 212 of the Constitution, the question arises whether this petition is competent and whether this Court has the jurisdiction to grant the reliefs asked for.

5. Article 212 of the Constitution reads:-- "212(1). Notwithstanding anything hereinbefore 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 acts 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 any 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 matters 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."

6. It is obvious that the words "notwithstanding anything hereinbefore contained" in Article 212 of the Constitution have reference, among others, to Article 199 of the Constitution which confers the power of judicial review upon this Court. The very jurisdiction that Article 199 confers upon the High Courts is the jurisdiction, among others, to declare that any act done or proceedings taken by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect and when by another Article, namely, Article 212, the Constitution itself excludes the jurisdiction exercisable under Article 199, then the obvious intention is to exclude the jurisdiction to call an action or proceeding in question also on the ground that it is without lawful authority, that is, without jurisdiction. As was held in Islamic Republic of Pakistan v. Dr. Safdar Mahmood P L D 1983 S C 100 under the new dispensation, the Services Tribunal was made the sole arbiter of all disputes relevant to the terms and conditions of civil servants; the jurisdiction of ordinary Courts was excluded altogether in these matters and henceforth the disputes relating to the service rights of civil servants were made the exclusive concern of the Service Tribunals, the "only limitation to their otherwise complete power in all such matters was that a right to this Court (Supreme Court) to grant leave to appeal in cases wherein it was satisfied that a substantial question of law of public importance was involved, was allowed by sub-Article (3) of Article 212 of the Constitution".

7. The Punjab Service Tribunals Act, 1974, was enacted in pursuance of Article 212 of the Constitution. It is not, and cannot be, disputed, that the petitioner is a `civil servant' within the meaning of that expression as defined in the Punjab Service Tribunals Act, 1974, and the Punjab Civil Servants Act, 1974. Section 9 of the latter Act provides that "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". By section 23 of that Act "the Governor, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act". In the exercise of his powers under section 23, the Governor of the Punjab was pleased to make the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Part II of these rules provides for the appointment by promotion, transfer or deputation of civil servants. Section 3 of the Punjab Service Tribunals Act, 1974, by which the Service Tribunal was established, by its subsection (2), confers "exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters", upon the Service Tribunal. It is, therefore, demonstrably clear that "transfer" is a matter relating to the terms and conditions of the service of the petitioner. It should follow inexorably that it is a matter confided by the Punjab Service Tribunals Act, 1974, to the exclusive jurisdiction of the Service Tribunal and this Court's jurisdiction stands, by the express provisions of Article 212 of the Constitution, excluded, unless there is something in the Act itself taking this particular matter out of the jurisdiction of the Service Tribunal or binding authority compels a different conclusion.

8. Learned counsel for the petitioner referred to section 4 of the Punjab Service Tribunals Act, 1974. to contend that section 4 of the Punjab Service Tribunals Act, 1974, expressly excludes the jurisdiction of the Tribunal to hear appeals against the orders of transfer and, 'therefore, this Court's jurisdiction under Article 199 of the Constitution is not barred. Subsection (1) of section 4 of the said 1974 Act in so far as relevant reads: "(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: (a) ........................................... (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; and (c) ............................................

9. The language employed in proviso (b) of subsection (1) of section 4 could not be plainer; by it, recourse to the Tribunal is barred only in those cases in which the departmental authority, in making the order, has determined the fitness or otherwise to be appointed to or to hold a particular post or to be promoted to a higher grade. Thus, the proviso draws a clear line between cases in which the order of transfer or an order refusing promotion has been made after determining the fitness or otherwise of a person and cases in which the order has been made without such determination. For instance, supposing that the petitioner, who is an engineer, was transferred from a field post to an office post, and in so doing, the departmental authority had said that the petitioner was not fit to hold the field post. That would undoubtedly be an order of the kind contemplated by the proviso (b). But in cases of transfer in which no such determination is involved or made, the jurisdiction of the Service Tribunal is obviously not ousted.

10. It was said that the order in question was made on the orders of the Minister at the instance of an M.P.A. to accommodate respondent No.

3. But that would; at best, make the order without jurisdiction and mala fide. It is, however, well-settled that the Administrative Court or Tribunal established in pursuance of Article 212 of the Constitution is competent like a Civil Court, to examine whether or not a law is void by reason of its conflict with the Fundamental Rights or is otherwise ultra vires or that the order made is mala fide or that a service rule is ultra vires of the law (See Muhammad Hashim Khan v. Province of Balochistan P L D 1976 Quetta 59 approved in Iqan Ahmed Khurram v. Government of Pakistan and others P L D 1980 S C 153) or whether a particular order is with or without jurisdiction (see Muhammad Aslam Bajwa v. Federation of Pakistan P L D 1974 Lah. 545 at 565). Learned counsel for the petitioner referred to Abdur Rauf v. Director, Local Government and Rural Development, Sargodha and another 1989 P L C (C.S:) 436; then it was held that the Minister has no authority to transfer a Sub-Engineer of his department "under any provision of law/Article or instruction made by the competent authority". In that case, the Director, Local Government and Rural Development, who was the competent authority, had not passed any order of transfer "after independent application of his mind" but had made the order in question in pursuance of the order of the Minister who, it was held, had no jurisdiction in the matter. In that case, however, the question of jurisdiction of this Court with reference to Article 212 of the Constitution was neither raised nor decided. Two cases, namely, Dr. Riaz Husain Naik v. Governing Body Sir Ganga Ram Hospital, Lahore 1989 P L C (C.S.) 527 and Dr. Syed Muhammad Zafar Bukhari v. Government of the Punjab through Secretary Health Department 1989 P L C (C.S.) 752 were also cited. In the first case, the petitioner was an employee of Sir Ganga Ram Hospital, Lahore, prior to it's nationalisation and his transfer order was challenged on the ground that it was contrary to the undertaking given to the members of the staff of the College and its allied Hospitals at the time of, the nationalisation. In the second case, the validity of certain rules touching the question of promotion of the petitioner was challenged. It was held that though ordinarily to determine the validity or otherwise of service rules falls within the purview of Service Tribunal but as promotion does not fall within the purview of the Service Tribunal, Article 212 of the Constitution did not apply. For one, that was not a case of transfer; secondly, the law laid down in Iqan Ahmed Khurram's case P L D 1980 S C 153 was not brought to the notice of the Court. Neither of these cases is, therefore, of any help to the petitioner's case.

11. The trend of binding authority appears to be all against the half-way house solution of the problems of the civil servants, namely, that in certain matters relating to the terms and conditions of service of the civil servants, the Service Tribunal established under Article 212 of the Constitution should have exclusive jurisdiction and in other matters, the ordinary Courts should continue to exercise jurisdiction. I have already referred to Dr. Safdar Mahmood's case. Iqan Ahmed Khurram v. Government of Pakistan P L D 1980 S C 153 has a direct bearing, for that case was decided with reference to section 4 of the Service Tribunals Act, 1974, which is identical to section 4 of the Punjab Act. There the grievance of the writ petitioners, who were sub-Engineers in the Telephone Department, was that the revision of certain rules had altered their terms and conditions of service vis-a-vis promotion with the result that their future prospects were marred, It was held that the effect of the Rules was to alter the terms and conditions of service of the petitioners therein and that being so, "the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered". It was pointed out "that a distinction has to be drawn between a case where the eligibility of an officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1974 will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Services Tribunal."

12. The precedent case concerned the terms and conditions of service relating to promotion but as has been noticed above, the fitness or otherwise of a person to be appointed to or hold a particular post and the fitness or otherwise of 1 a person to be promoted to a higher grade have both been treated on a par in the proviso (b) of section 4.

13. Apart from the appealability or unappealability of an order of transfer, the question is whether such an order is a justiciable matter. 1 had the occasion to consider this question in Mst. Saeeda Bukhari v. Secretary Ministry of Education, Government of the Punjab, Lahore and another P L D 1988 Lah. 553, and I venture to quote: "However that may be, it has long been settled that so far as suitability for or promotion to a particular post is concerned, this is a matter to be dealt with by the Government on its administrative side and is not F justiciable in a Court of law, "except possibly in a case of proved mala fides". (See Muhammad Aboo Abdullah v. The Province of East Pakistan and another P L D 1960 S C (Pak.) 164). This was plainly the reason for excluding recourse to the Service Tribunal in such matters. As before the enactment of the Punjab Service Tribunals Act, 1974, the view was well- established that such matters are not justiciable, it could not have been the intention that though those matters should remain excluded from the jurisdiction of the Service Tribunal, yet they should be within the Constitutional jurisdiction of this Court."

14. In the result, the petition fails and is dismissed with costs. M.BA./Lah/M-1939 Petition dismissed.