1995 PLP (C (PLC(CS))

Writ Petition No. 4074 of 1994, decided on 11th April, 1994. ‑‑‑‑Arts. 199 & 212‑‑‑Transfer of civil servant‑‑‑Validity‑‑‑Constitutional jurisdiction‑‑‑Exercise of‑‑‑Civil servant who was Principal of a Government College and was stated to be a paralytic and handicapped lady had challenged her transfer from one place of service to another directly filing Constitutional petition without first addressing departmental representation to Competent Authority and appeal to Service Tribunal‑‑‑Grievance expressed by civil servant was redressable firstly in a departmental representation addressed to Competent Authority and in the event of failing in it, by an appeal to appropriate Service Tribunal subject to a further appeal to Supreme Court‑‑ Equitable and sympathetic considerations apart, transfer of a civil servant was an essential part of terms and conditions of service and as such it was not susceptible to a judicial review in Constitutional jurisdiction of High Court for Art. 199 of the Constitution was subject to bar of jurisdiction expressed in Art.212 of Constitution‑‑‑High Court cannot interfere with subject‑matter preserved for adjudication by another forum set up under Constitutional mandate. Zafar Ullah Khan for Petitioner. Petitioner was a Principal of Government College for Women at Sialkot. On 5‑4‑1994, she was transferred and her services were placed at the disposal of Director, Public Instructions, Punjab, Lahore for a further adjustment against a vacant seat of her rank and grade. She was aggrieved of her transfer and invoked extraordinary jurisdiction of this Court for saving her from it. She was stated to be a paralytic and handicapped lady. On equitable grounds, she sought protective cover of this Court against excess of Executive Authority by the respondent‑Government of Punjab. Consideration for sympathy apart, it was obvious that transfer of a civil servant was an essential part of terms and conditions of service. Therefore, Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 posed a serious bar for exercise of extraordinary jurisdiction under Article 199 of the Constitution by the High Court in a matter relating to breach of terms and conditions of service of a civil servant. The grievance expressed on this score was correctible firstly in a departmental representation addressed to the competent authority and in the event of failing in it, by an appeal to the appropriate Service Tribunal subject to a further appeal to the Supreme Court of Pakistan. There were number of pronouncements by the Supreme Court that the transfer of a civil servant was not susceptible to a judicial review by the High Court. Even ground of mala fide was reviewable only in appropriate jurisdiction created under Article 212 of Constitution. Bar of jurisdiction was visible on face of record. Learned counsel was conscious of it and, therefore, pressed for interference in equity. It was urged that besides being a Court of Law, the High Court was a Court of equity also and where it saw the excess being committed by the Executive Authority, it must rescue the victim from it. There was no doubt that the excess of authority could not go unnoticed without a proper relief to a victim of it provided necessary jurisdiction was found to exist for it in the Court. In the instant case, as I saw the matter, Article 199 of the Constitution was subject to bar of jurisdiction expressed in Article

212. Language of the Constitution in Article 212 was unambiguous and crystal clear in this behalf. It created a special jurisdiction for dealing with the terms and conditions of service of a civil servant. Therefore, in full respect to the command of the Constitution, the High Court must stay away from the subject matter preserved for adjudication by another forum set up under the Constitutional mandate. I was invited to a few orders made by different Benches of this Court wherein the dispute relating to transfer orders of civil servants were entertained in writ jurisdiction and presumably, stay orders were also issued. Despite tremendous amount of respect for the views expressed by my learned brethren, I Felt reluctant to follow it in face of clear pronouncement on the subject by the Supreme Court. Upon this view of the matter, interference is declined by this Court and writ petition in dismissed in limine. However, it shall be open to the Provincial Government to reconsider their decision about transfer of the petitioner on humanitarian consideration. Petitioner may apply for it. H.B.T./Z‑137/L Petition dismissed.