' HAMID FAROOQ DURRANI, J.--- The petitioner Muhammad Saeed, while posted as Patwari Halqa at.
Mathani, was transferred to head office by order, dated 26-7-2007 by the competent authority while respondent No,3 was transferred instead through the same order.
1. The petitioner, by way of instant constitutional petition, has questioned his said transfer order on various grounds including the impugned transfer order being managed by respondent No,3 Saeed Ahmad through application of political pressure. Further, the petitioner was not treated in accordance with law as his transfer was not made in public interest but was outcome of mala fide on the part of official respondents and ulterior motive of respondent No,3. That he was transferred during a span of few months upon the express directions of the Minister Revenue, N.-W.F.P., Peshawar.
2. At the time of hearing of the petition in hand, learned counsel for private respondent raised preliminary objection regarding the jurisdiction of this Court in entertaining the petition in hand under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. In the said regard, the learned counsel contended that in the light of specific bar contained in Article 212 of the Constitution, the petition in hand could not proceed as it involved a question pertaining to the terms and conditions of service of the petitioner which matter was exclusively amenable to the jurisdiction of Service Tribunal. He relied on the judgments reported through 2005 17, 2007 SCM R 54 and 1997 SCM R 167- 169-170.SCMR
3. On the other hand, learned counsel for the petitioner, while attempting to repel the preliminary objection raised from the other side, argued that the case in hand was clearly indicative of mala fide and political pressure applied by private respondent in obtaining a favourable posting/transfer order. In the circumstances, this Court was competent to look into the matter in constitutional jurisdiction and declare the impugned act of respondents as without lawful authority. In furtherance of his arguments, the learned counsel referred to comments filed on behalf of official respondents wherein the allegation regarding passing of impugned transfer order, upon the directions of a Minister, were admitted correct. He referred to a judgment of this Court passed in Writ Petition 1819 of 2006 in the case of "Gulzar Ahmad" and stated that this Court had assumed constitutional jurisdiction while granting relief to the petitioner in circumstances similar to those of instant petition. The said judgment was upheld by the apex Court, therefore, in view of the learned counsel the matter was conveniently amenable to the writ jurisdiction of this Court. He also referred to the case of Muhammad Iqbal 2007 SCM R 682.
4. We would firstly like to observe that the judgment passed in Writ Petition 1819 of 2006 ibid, as relied upon by the petitioner, involved facts and circumstances which were distinguishable from those involved in the matter in hand. In the referred case, a Patwari who was already ordered to be transferred from a place of posting refused to relinquish charge and also managed to pilfer official record, for which he was being proceeded against departmentally, applied political pressure and manipulated an order of retransfer within a few days. In the instant case, the petitioner was working on the post of Patwari Circle at Mathani since 11-9-2006. His transfer order to the said post was also officially indorsed to P.S. To Minister Revenue, N.-W.F.P., Peshawar amongst others. The documents attached with the comments by official respondents would reveal that the said posting was procured under the direction from Chief Minster Secretariat. The impugned transfer order though also speaks of endorsement to P.S. To the Revenue Minister but for the purpose of information with reference to his letter dated 27-7-2007 addressed to Senior Member Board of Revenue, N.-W.F.P. There are copies of some other correspondence available on record which prompt that the impugned transfer was recommended by the said Minister. In the circumstances, it would not lie in the mouth of petitioner to object the impugned transfer order on the ground of mala fide.
5. It is to be noted that the apex Court has time and again settled the proposition in terms that the transfer of any civil servant can be made by the competent authority in the exigency of service of public interest while no civil servant has a legal right to remain posted at a particular place. In cases of mala fide and extraneous consideration to accommodate the favourities, the matter can be agitated by invoking the jurisdiction of Service Tribunal. As held in the case of Secretary Education, N.-W.F.P. Peshawar v. Mustamir Khan 2005 SCM R 17, the Service Tribunal can set aside orders passed by the departmental authority wit of mala fide even though the relief claimed by a civil servant is not obtainable as of right. It has also been laid down in the case of Pir Muhammad v.
Government of Balochistan 2007 SCM R 54 that the question of posting/transfer of a civil servant would relate to terms and conditions of his service and Tribunal of exclusive jurisdiction may dilate upon and decide matters, pertaining to the said terms while constitutional jurisdiction cannot be invoked to have the controversies resolved. The provisions of Article 212 of the Constitution oust the jurisdiction of all other courts while orders of the departmental authority, even though without jurisdiction or mala fide, can be challenged only before the Service Tribunal. The plea of mala fide would not confer upon a High Court jurisdiction to act in a matter where the same is ousted through another provision of the Constitution.
6. It is also to be noted that the petitioner filed a departmental appeal addressed to S.M.B.R., N.- W.F.P., Peshawar against the impugned transfer order which has not been decided as yet. It is further depictable from the record that the petitioner after filing of appeal did not wait for its outcome within the statutory period and brought the petition in hand before this Court on 28-7- 2007.
7. For what has been discussed above, we, without touching merits of the case of petitioner, are inclined to hold that the instant constitutional petition is beyond the purview of jurisdiction vested in this Court through Article 199 as the same is to be exercised subject to the other provisions of the Constitution.
8. The instant constitutional petition was dismissed being not maintainable through short order of even date and above are the reasons for the same. It is, however, observed that the contents of this judgment shall not affect the merits of petitioner's cause in any manner whatsoever. ##TSE#