2011 PLC (C (PLP)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner herein has asked for issuance of an appropriate writ by issuing direction to the respondents to pass an appropriate order in respect of posting of petitioner and issuance of show cause notice in the year 2005 so that he be able to approach the proper forum.

2. We have heard the learned counsel for the petitioner at length and have gone through the record.

3. The petitioner being .a civil servant was transferred as Assistant Professor Medicines against vacant post of Associate Professor Medicine to Saidu Medical College, Swat (SMC) vide Notification dated 30-5-2003 issued by the respondent No.2 and the petitioner then assumed the charge of the post but later on, said transfer order was recalled vide Notification dated 17-6-2003. The petitioner feeling aggrieved approached the N.-W.F.P. Service Tribunal, Peshawar against the said Notification and was successful in getting it suspended by the Tribunal vide its order dated 7-7-2003 and accordingly Principal SMC, Swat suspended the order of transfer dated 17-6-2003 in the light of order of N.-W.F.P. Service Tribunal (ibid). The department again vide notification dated 18-7-2003 asked the Principal that it was not in his domain to suspend the order of transfer and asked the Principal to send the judgment of the .Tribunal for further necessary action. The petitioner then was served with a notice to show cause as to why a disciplinary action should not be taken against him and his services should not be terminated under the N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 to which the petitioner also filed a reply dated 12-4-2005.

4. The contention of the learned counsel that a direction be issued to the respondents for taking an appropriate action/decision in respect of the petitioner as after submission of his reply to show cause notice in the year 2005, no such action/decision has been taken till date by the respondents though would have some force but the petitioner undoubtedly being a civil servant and his such like grievances fall under the terms and conditions of service of petitioner, for the redressal of which a special forum provided under the law is very much there and once the petitioner had also invoked its jurisdiction. This aspect of the case can also be answered in the manner that irrespective of the question of jurisdiction, departmental Authorities have yet to pass a final order after considering the matter in the light of reply of the petitioner and thereafter petitioner would certainly have a right to raise all questions of law and facts before the competent authority. This aspect would also make this petition as not maintainable. The jurisdiction- of other Courts and forums is ousted by the specific bar provided in N.-W.F.P. Civil Servants Act, 1973 and N.-W.F.P. Service Tribunal Act, 1974 where the questions of terms and conditions of a civil servant are involved. So, the instant petition on the face of it appears to be barred by law. Yet another important aspect which cannot be overlooked at this, stage and would also be a hurdle in the way of petitioner to seek such a direction as per dictum laid down in the case of Muhammad Anees and others v. Abdul Haseeb and others PLD 1994 SC 539 as after submission of the reply to the above show cause notice in the year 2005, the petitioner only once approached the Principal SMC for payment of his salary to which he was directed by the respondents vide letter dated 13-9-2005 to file a review petition in case of imposition of penalty but after lapse of five complete years, the petitioner awoke from his deep slumber and filed instant petition in August, 2010 which too would raise many questions for his such slackness which alone would disentitle him for the equitable relief he is asking for and the case of petitioner is thus hit by the principle of laches. No doubt, the principle of laches cannot be applied as a bar of limitation as provided under the law of limitation but this principle can very well he applied in the cases like the one in hand. So, what has been discussed above, we are not persuaded by the submissions made by the learned counsel for the petitioner to issue such directions. Hence, instant petition being meritless is dismissed as such. M.U.Y./332/P Petition dismissed.