2011 PLP (C (PLC(CS))

SYED AKHLAQ AHMAD, J.

Through this constitutional petition, Jafar Ali Shah/petitioner calls in question the validity of order, dated 2-7-2010 passed by respondent No.2/Deputy Inspector-General of Prison, Lahore Region, Lahore and communicated to the petitioner by respondent No.3/Superintendent District Jail, Lahore vide office order, dated 14-7-2010 whereby he was transferred from District Jail, Lahore to District Jail, Sialkot on administrative grounds against an existing vacancy.

2. Brief facts of the case are that the petitioner is Jail Warder in the Prison Department of the Government of the Punjab for the last 25 years. He was serving at District Jail, Lahore when on 31-10-2008 he was transferred to Central Jail, Gujranwala by respondent No.2/Deputy Inspector-General of Prison, Lahore Region, Lahore. Only after seven months he was directed to report from Central Jail, Gujranwala to I.-G., Office, Lahore vide order, dated 26-5-2009. He remained there only for four months when he was relieved and sent back to Central Jail, Gujranwala vide order, dated 2-9-2009. He was further directed to join Central Jail, Sahiwal on temporary basis. During the period, the petitioner was at Sahiwal he was transferred from Gujranwala to District Jail, Lahore vide order dated 18-11-2009. Only after 8/9 months, he was again transferred through impugned order, dated 2-7-2010 from District Jail, Lahore to Central Jail, Sialkot. During pendency of this writ petition, the petitioner has been again transferred from District Jail, Lahore to Central Jail, Sahiwal in partial modification of the order dated 2-7-2010 vide order dated 27-7-2010. Hence, this petition.

3. In their reply/parawise comments, the respondents defended the successive postings and transfers of the petitioner stating that the petitioner was transferred from District Jail, Lahore to District Jail, Sialkot on administrative grounds under the direction of the Inspector-General of Prisons Punjab vide memo. No.ESTT/2010/32932 dated 24-6-2010. The transfer orders were issued by the competent authority under the Pakistan Prison Rules, 1978 and Punjab Civil Servants Act, 1974 and under the law. The petitioner is inefficient and lacks interest in his duties due to which he was punished ten time on account of misconduct and negligence in performance of his duties, detail of which has been separately appended with the reply. It is reiterated that the petitioner has been repeatedly transferred due to his own attitude, inefficiency and lack of interest in duties which is evident from his service record. There is no ulterior motive behind these transfer orders as the same were issued in compliance with the directions of the competent authority. The petitioner has not come to the court with clean hands. His service record is not satisfactory and he has ten punishments at his credit on account of inefficiency, misconduct and lack of interest.

4. Learned counsel for the petitioner contends that successive transfers of the petitioner within a short span of time are mala fide, without jurisdiction and coram non judice. The petitioner has been made a rolling stone and is not being allowed to complete the normal tenure of posting without any, justification. The main reason behind his repeated transfers is that he was proceeded against under the Punjab Removal from Service (Special Powers) Ordinance, 2000 and awarded major penalty of "Reduction in time scale, Pay at minimum stage" vide order dated 1-10-2005. The said penalty was set aside by the Punjab Service Tribunal vide order, dated 6-2-2008 and the petitioner was restored to his original time scale from the date of imposition of penalty. Despite passing of 2-1/2 years of the said order of Punjab Service Tribunal, his remaining salary has not been given to him. The petitioner moved, applications to I.-G. Prison Punjab, D.I.-G. Prison Lahore Region and Superintendent District Jail, Lahore against the clerical staff of the District Jail, Lahore. He has been transferred as he is insisting upon his right and has been penalized on this sole reason. In support of his contention, learned counsel for the petitioner relied upon Prison Rule, 1110, PLD 1994 SC 738, PLD 1995 SC 530, 1996 SCMR 59 and 2008 PLC (C.S.) 579.

5. On the other hand, learned Additional Advocate-General on behalf of the respondents opposed this petition and strongly defended the impugned order of transfer of the petitioner passed by the respondents.

6. I have heard the learned counsel for the 'petitioner as well as the learned Additional Advocate-General on behalf of the respondents and have also gone through the documents available on the file.

7. It has been laid down by the Supreme Court of Pakistan in case Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 that "Admittedly the petitioner had no legal right to be posted against a particular post. Hence the question of its infringement does not arise as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner. It is well-settled by now that the question of posting of Government servant squarely falls within the jurisdictional domain of the competent authority subject to law and rules made thereunder. The question of posting/transfer relates to the terms and condition of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in constitutional jurisdiction which is not correct because the provisions as contained under Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders .of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and the learned Service Tribunal has full jurisdiction to interfere in such-like matters. In this regard we are fortified by the dictum laid down in case Khawaja Abdul Wahid v. Chairman WAPDA 1986 SCMR 1534, Secretary to Government of the Punjab Health Department, Lahore and others v. Dr. Abida Iqbal and another 2009 SCMR 61, Dr. Ghazanfar Ullah and 2 others v. Secretary Health Government of the Punjab, Lahore and 6 others 2010 PLC (C.S.) 51 (Lahore High Court) and Khan Muhammad v. Secretary Education (Schools) Government of the Punjab Education Department and another 2010 PLC (C.S.)

238. The citations relied upon by the learned counsel for the petitioner are not attracted to the facts and circumstances of the present case.

8. In view of the categorical pronouncements of the Supreme Court of Pakistan and the jurisdictional bar contained in Article 212 of the Constitution, this Court has no jurisdiction to even entertain proceedings that fall within the domain of Punjab Service Tribunals Act, 1974 as per Article 212 of the Constitution. For the said reason, this petition is dismissed. H.B.T./J-20/L Petition dismissed.