1998 PLP (C (PLC(CS))

Through this Constitutional petition Dr. Abdul Sattar challenged the vires of order dated 6-10-1997 regarding his transfer from Rural Health Centre, Sanjarpur, Tehsil Sadiqabad to Rural Health Centre, Nawazabad, Tehsil Sadiqabad.

2. The learned counsel for the petitioner submitted that the petitioner faced eleven transfers during the last three years and the last transfer was politically motivated being the result of the recommendations of Ch. Muhammad Jaffar Iqbal, Deputy Speaker, National Assembly of Pakistan. He thus maintained that the transfer of the petitioner wags mala fide and was liable to be struck down on this ground. In support of his contentions he placed reliance upon Abdur Rashid v Riazuddin and others 1995 SCMR

999. Pir Sabir Shah v Federation of Pakistan and others PIXL122LSC 738 and Zahid Akhtar v Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530.

3. In the case before me, the petitioner is admittedly a 'civil servant' and he has not availed any departmental remedy before invoking the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. No doubt, many orders of the transfer of the petitioner were passed in quick succession during the last about three years and, obviously, against the transfer policy of government servants. Be that as it may, I am afraid the remedy of the petitioner is not by way of the petition under Article 199 of the Constitution but by way of departmental appeal in the first instance and then through an appeal to the Service Tribunal under section 4 of the Service Tribunals Act, 1973. The matter of transfer of a civil servant has nexus with the terms and conditions of his service and his recourse to the High Court against his alleged mala fide transfer under Article 199 is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. The precedent cases of Pir Sabir Shah and Abdur Rashid are not applicable to the case of the petitioner inasmuch as the principles laid down in the case of Pir Sabir Shah cannot be applied to a civil servant, while in the case of Abdur Rashid the appeal before the Hon'ble Supreme Court was from a judgment of the Peshawar High Court Branch Registry, Dera Ismail Khan passed in a civil revision petition and not in exercise of Constitutional jurisdiction.

4. The facts of the case of Zahid Akhtar are almost similar to the present case. In the cited case there were successive transfers within a short period of a civil servant and the apex Court while hearing the appeal from the judgment/order passed in the writ petition by the Lahore High Court, Lahore, disapproved the frequent transfers of the petitioner but dismissed the petition being not maintainable in the following words: "We, therefore, expect that the guidelines mentioned in the policy directives of the Government referred to above and the provision's of Rule 21 of the Rules of Business, ibid, will be kept in view by all the concerned while dealing with the transfers of Government servants. The office is directed to send a copy of this judgment to the Government of Punjab for circulating it to all its departments for further guidance. With these observations, this petition stands dismissed as not maintainable."

5. In the cases of Miss Rukhsana Ijaz v Secretary, Education, Punjab and others 1997 SCMR 167; Ayyaz Anjum v Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169 and Rafique Ahmad Chaudhry v Ahmad Nawaz Malik and others 1997 SCMR 170 the respective transfer orders of the petitioners were suspended by the High Court in the exercise of jurisdiction invoked under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, but the Supreme Court in the first two cases set aside the suspension order and the High Court was directed to decide the question of its jurisdiction before passing any stay order and in the third case while granting leave to appeal, the impugned order was suspended.

6. In the case of Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-1, Gujranwala v Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645 the matter of transfer of the petitioner was first heard by the Service Tribunal and then its appeal by the apex Court. Similarly, in the case of The Superintendent of Police, Headquarter, Lahore and 2 others v Muhammad Latif PLD 1988 SC 387 the order of dismissal from police service declared to be without lawful authority by the High Court was set aside on the ground that it "suffers from an obvious error of Jurisdiction". Needless to mention that the matters of transfer, termination and dismissal relate to terms and conditions of civil servants.

7. Precisely, the Constitutional jurisdiction under Article 199 of the Constitution to entertain matters relating to terms and conditions of a civil 1 servant, even where alleged to be without jurisdiction or mala fide, is ousted under Article 212 of the Constitution of the Islamic Republic of Pakistan. 1973. All such matters are within the exclusive jurisdiction of the Service Tribunals. This writ petition is, therefore, dismissed in limine being not maintainable. A.A./A-220/L Petition dismissed.