' NASIR-UL-MULK, CJ.---Writ Petition Nos.1345, 1354, 1375 and 1376 of 2004 are disposed of by this single judgment as they involve same question of law. The petitioners are civil servants, serving in different Departments of the Government of N.-W.F.P. They had been transferred from their present posting, of which they felt aggrieved. They have filed these Constitutional petitions against their orders of transfer as the N.-W.F.P. Service Tribunal has declined to exercise jurisdiction in matters of transfer on account of recent order of the Honourable Supreme Court passed in the case of "Khalid Khan v. Secretary Schools and Literacy Department, Peshawar and others (C.P.L.A. No.304-P of 2004) decided on 13-5-2004. The said order is brief and is reproduced in entirety as under:-- "ORDER ' This matter pertains to transfer of petitioner from Haryankot to Kort in pursuance of directions of the Committee constituted by N.-W.F.P Provincial Assembly, Since transfer is not terms and conditions of service of an employee, therefore, we are of the option that no question of public importance is involved, as such, petition is dismissed."
' The N.-W.F.P. Service Tribunal is now holding that since the Honourable Supreme Court had declared that transfer is not a term and condition of service of a civil servant, the Tribunal has no jurisdiction to entertain appeals against orders of transfer as the jurisdiction of the Tribunal under section 4 of the N.-W.F.P. Service Tribunal Act extends only to the terms and conditions of a civil servant. Since the Tribunal has all along been exercising jurisdiction in matters of transfer and it has been the consistent view of the Superior Courts, including the apex Court, that the transfer matters fall within the ambit of terms and conditions of service of a civil servant, we issued notice in these petitions to the Advocate-General to assist the Court.
2. The petitioners were represented by Mr. Khushdil Khan, Qazi Jawad Ehsanullah and Mr. Saadullah Jandoli. They simply relied upon the order of the Honourable Supreme Court in the case of "Khalid Khan v. Secretary (Schools and Literacy) etc." and submitted that since it has now been declared that the transfers are not terms and conditions of service of the petitioners, the Service Tribunal's jurisdiction stands ousted and the only remedy available to the petitioners is that provided by Article 199 of the Constitution. On merits of the case, the counsel in their respective cases alleged mala fide in that the transfer orders were passed under political influence.
3. The learned Advocate-General cited a number of judgments of the Honourable Supreme Court and the High Court where it has been held that transfer was term and condition of service of a civil servant and thus questions pertaining thereto were within the exclusive jurisdiction of the Service Tribunal. The learned Advocate-General pointed out that the brief order passed by the Honourable Supreme Court in the case of "Khalid Khan v. Secretary (Schools and Literacy) etc." cannot be taken to be a deviation from the consistent view on the subject as the Honourable Supreme Court had not discussed the question in any detail.
4. It is now more than settled that the jurisdiction of the High Court under Article 199 of the Constitution is excluded by Clause (2) of Article 212 of the Constitution in matters that fall within the jurisdiction of a Tribunal constituted by the Legislature under the powers conferred upon it under sub-clause (a) of clause (1) of Article 212 of the Constitution. It is in the exercise of these powers that the N.-W.F.P. Service Tribunal Act 1974 was enacted for hearing appeals of civil servants. The jurisdiction of the Tribunal is defined in section 4 of the Act which extends to orders passed by Departmental authority in respect of any of the terms and conditions of Service of a civil servant with the exception of matters pertaining to the fitness of a civil servant to hold a particular post or to be promoted to a higher post and imposition of minor penalties. Chapter-2 of the N.-W.F.P. Civil Servants Act, 1973, enumerates the terms and conditions of service of a civil servant. Section 10 of the Act, which falls under the said Chapter, pertains to postings and transfers and provides that every civil servant is liable to serve everywhere within or outside the Province. Since the posting and transfer of a civil servant is the terms and conditions of the service of a civil servant, it would fall within the exclusive jurisdiction of the N.W.F.P. Service Tribunal. Such has been the consistent view of the Honourable Supreme Court as well as the High Courts. To cite few judgments, reference may be made to the following case-law:--
(i) Syed Afzal Ahmad Hydari v. Secretary Defence Production Division, Ministry of Defence Rewalpindi and 3 others (1991 SCMR 477).
(ii) Miss Rukhsana Ejaz v. Secretary, Education, Punjab and others (1997 SCMR 167).
(iii) Ayaz Anjam v. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169).
(iv) Rashid Ahmad v. Mst. Jiwan and 5 others (1997 SCMR 171)
(v) Hafiz Khalid Irshad v. Ahmad Khan Wattoo and others (1997 SCMR 1124).
(vi) Syed Mazhar Hussain Bukhari v. Secretary Government of Punjab Local Govt. And Rural Development Department, Lahore and others (1998 SCMR 1948).
(vii) Wilayat Ali v. Chief Secretary to Government of N.-W.F.P., Peshawar and 3 others (2002 PLC (C.S.) 675).
(viii) Muhammad Akram Malik v. Province of Sindh through Chief Secretary, Government, of Sindh, Karachi and 23 others (2002 PLC (C.S.) 1037).
5. Now reverting to the order of the Honourable Supreme Court in the case of "Khalid Khan v.
Secretary (Schools and Literacy) etc." in order to appreciate its correct import, it is necessary to refer to the background in which the said order was passed. That order was passed in appeal filed by Khalid Khan who was respondent in an appeal filed by one Islam Ghani before the Service Tribunal (Service Appeal No.85 of 2004). The appellant before the Tribunal who was serving as a teacher in the Education Department, was transferred on 13-11-2003 from Government High School Kot, Malakand Agency to Government High Court Haryan Kot upon completion of his tenure, in place of Khalid Khan. This order was reversed within two months on 6-1-2004 and Khalid Khan was posted back to Haryan Kot. The order of 6.-1-2004 was questioned by the appellant Islam Nabi before the Service Tribunal. The appeal was allowed on 1-4-2004 and the impugned order of transfer was struck down and the order of 13-11-2003 was restored. Against this judgment and order of the Tribunal, Khalid Khan had filed petition for leave to appeal under Article 212(3) of the Constitution before the Honourable Supreme Court in which the jurisdiction of the Service Tribunal as such was not questioned. The main point urged was that the appeal before the Service Tribunal was premature in that it was filed immediately after the impugned order of transfer whereas section 4 of the N.W.F.P. Service Tribunals Act, 1974 provides that before a civil servant could file an appeal before the Tribunal, he is to make representation or file an appeal before the Departmental authority and wait for 90 days. The Honourable Supreme Court however, declined to grant leave to appeal and dismissed the petition by order dated 13-5-2004.
6. The Honourable Supreme Court had in the said order neither held that the Service Tribunal had no jurisdiction in matters of transfer of civil servants, nor indeed it was the case of the petitioner before the Court. On the contrary, the Supreme Court had by dismissing the petition upheld the judgment and order of the Service Tribunal which had annulled the order of transfer of the appellant before the Tribunal. The Apex Court thus by dismissing the petition had tacitly recognized that matters of transfer were within the jurisdiction of the Tribunal. This recognition is in line with the consistent view of the Honourable Supreme Court and the other High Courts. The judgments referred to above are just a few of the many authorities on the subject. The Service Tribunal has interpreted the order of the Honourable Supreme Court incorrectly by implying that since the Honourable Supreme Court had declared that the transfers are not terms and conditions of civil servants, the jurisdiction of the Tribunal stands excluded. As stated above, the Honourable Supreme Court had by dismissing the petition, impliedly held that the Tribunal was invested with the powers to entertain appeals against orders of transfers. Since the order of the Supreme Court is silent upon the question of jurisdiction of the Tribunal, which was never raised before it, the latter implication is more in line with the consistent view of the Supreme Court on the question of jurisdiction regarding cases of transfers. Even otherwise jurisdiction can be excluded only expressly and not by implication.
7. The main point urged before the Honourable Supreme Court by the petitioner in Khalid Khan's case was the assumption of jurisdiction by the Tribunal when the appellant before it had not waited for the statutory 90 days prescribed in section 4 of the N.-W.F.P. Service Tribunals Act, 1974.
The same point was also urged before the Tribunal but was not accepted. The Honourable Supreme Court by dismissing Khalid Khan's petition, had thereby upheld the assumption by the Tribunal of jurisdiction in case of transfer without the appellant having to wait for the lapse of 90 days from the impugned order. The Tribunal in Para-II of its judgment had relied upon the policy of the Government of N.-W.F.P. That provides for an appeal against the order of posting/transfer to the next higher authority within 7 days. The Tribunal had, in accordance with this policy held that an aggrieved civil servant can approach the Tribunal after the expiry of 15 days from the date he files an appeal to the next higher authority against his transfer. By not interfering with this finding of the Tribunal when it was expressly challenged, the Honourable Supreme Court had accorded to it its tacit ,approval.
8. In the light of above discussion, we hold that the Apex Court had not in the case of Khalid Khan ousted the jurisdiction of the Service Tribunal in matters of transfer of the civil servants. The N.- W.F.P. Service Tribunal has therefore, wrongly declined to exercise the jurisdiction in such matters.
Consequently, the jurisdiction of this Court remains ousted by Article 212 of the Constitution. Thus while holding that the Service Tribunal is possessed with the jurisdiction to entertain appeals against transfer/posting orders of civil servants,we dismiss these petitions on the ground that these are not maintainable.