' ABDUL HAMEED DOGAR, J.--- Petitioner Muhammad Alam Jan seeks leave to appeal against the judgment, dated 18-9-2004 of the N.-W.F.P. Service Tribunal, Peshawar (hereinafter referred to as 'the Tribunal') whereby Appeal No,15 of 2004 filed by him challenging the order of his transfer, dated 11-7-2003 was dismissed.
2. Facts leading to the filing of the instant petition are that petitioner was inducted in service as Junior Clerk and vide order, dated 6-3-2002, he was posted as Assistant Control Clerk in the Office of Political Agent North Waziristan Agency, Miran Shah. On 11-7-2003, he was transferred and was posted as Assistant Head Clerk in the same Office. Feeling aggrieved, he made representation to respondent No,1 which having been not responded, he filed above mentioned appeal before the Tribunal which was dismissed vide impugned judgment.
3. We have heard Mian Mohibullah Kakakhel, learned Advocate Supreme Court for petitioner and have gone through the record and proceedings of the case in minute particulars.
4. It is, inter alia, contended by the learned counsel for the petitioner that the transfer order, dated 11-7-2003 is in fact premature in nature as petitioner has not completed his normal tenure of three years' service as Assistant Control Clerk. According to him, respondent No,4 Ashraf Khan has been illegally adjusted at the place of petitioner, as such, the order of his transfer is not only mala fide but is also not sustainable in law. In support, he placed reliance on an unreported judgment of this Court rendered in (Civil Petition No,308-P of 2004) in the case of Secretary Education N.-W.F.P.
Peshawar and two others v. Mustamir Khan and another decided on 12-8-2004 and urged that the case in hand is identical on all aspects with the case referred (supra) wherein leave to appeal was refused and the order of learned Tribunal cancelling the transfer of respondent was maintained. He lastly submitted that according to section 10 of N.-W.F.P. Civil Servants Act (XVIII of 1973)
(hereinafter referred to as the Act'), matters regarding transfer and posting are relatable to the terms and conditions of the service, therefore, fall within the exclusive jurisdiction of the Service Tribunal which jurisdiction has not been exercised by the learned Tribunal properly in this case.
5. According to Civil Servants Act, 1973, every civil servant under the Federal Government is liable to serve anywhere within or outside Pakistan, in any post under the Federal Government, or any Provincial Government or local authority or a corporation or body set up or established by any such Government. Similarly in the Provincial Civil Servants Acts, every civil servant is liable to serve anywhere within or outside the Province in any post under the Provincial Government or the Federal Government or any Provincial Government or a local authority or a corporation or a set up or established by any such Government. The above principle is mainly based on the criteria that it is within the domain of the Government to utilize the services of a civil servant anywhere it deems fit in public interest. Even according to Civil Servants Act, 1973, right of posting vests in the exclusive jurisdiction of the competent authority and the said posting cannot be challenged unless it is against the law and rules or mala fide. Section 10 of the Act also stipulates that every civil servant shall be liable to serve anywhere within or outside the Province, in any post under the Federal Government, or any Provincial Government or local authority or a corporation or body set up or established by any such Government. This Court in the case of Nazir Hussain (Ex. Director Excise and Taxation), Administrator, Auqaf, N.-W.F.P., Peshawar v. N.-W.F.P. Through the Chief Secretary/ Secretary, Services and General Administration Department, Government of N.-W.F.P., Peshawar and 2 others (1992 SCM R 1843) while examining the provisions of section 10 of the Act held that it was within the power of transferring authority to transfer the petitioner and that the transfer cannot be legally assailed as the same is not suffered from any legal infirmity. In the case of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530 though it was alleged that the transfer order was malicious and was not passed by the competent authority, yet it was not interfered with and petition was dismissed being not maintainable. The case of Secretary Education, N.-W.F.P. Peshawar referred (supra) is on different facts and circumstances and has no bearing with the case of the petitioner as in the above referred case, transfer was made at the desire of Minister for Education, N.-W.F.P. Due to political reasons in order to adjust some blue eyes chap.
6. In the instant case, the petitioner has been transferred on administrative grounds by competent authority within the same office along with other officials, thus the question of inconvenience or disturbance does not arise at all. Moreover, petitioner has already complied with the impugned order of transfer and relinquished the charge on 12-7-2003 and assumed the new posting as such his claim has become in fructuous.
7. For what has been discussed above, we are of the considered opinion that the impugned order does not suffer from any legal infirmity which is accordingly maintained. The petition being devoid of force is dismissed and leave to appeal refused.