Through this petition the legality and validity of the order dated 27.10.2008, passed by Respondent No, 1, whereby Muhammad Afzal, the petitioner, who had been serving as Halqa Patwari Tarif Mubarik Awal, has been ordered to replace Muhammad Ali, Halqa Patwari Sarwani Bela, has been called into question.
2. In support of this petition learned counsel for the petitioner has contended that the impugned order has been passed in violation of the ban imposed by the Board of Revenue Punjab against the transfers/postings of Naib Tehsildars etc., vide order dated 24.1.2009. He adds that the Government of Punjab has also imposed ban on transfers/postings of Government servants vide orders dated 25.6.2008 and 04.11.2008, respectively, and that the petitioner has been transferred to accommodate Respondent No, 1, who is blue eyed boy of a local M.P.A.
3. When confronted with the jurisdictional bar against entertaining writ petitions in the matters which exclusively fall within the jurisdiction of Service Tribunal, learned counsel has contended that the said bar is not absolute and in appropriates cases, this Court has jurisdiction to entertain the writ petition challenging the orders of transfer of government employees. In support of his contention learned counsel has placed reliance on the cases of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 SC 530), Roshan Khan, SET Government High Schools Kuz Pao, District Shangla v. Director Schools and Literacy, N.W.F.P., Peshawar and 4 others (2007 SCMR 599), Muhammad Yar Patwari v.
District Coordination Officer, Sahiwal and 3 others (2006 PLC (C.S) 989), Hafeez ur Rehman v.
Executive District Officer, (Health), Khanewal (2007 MLD 1481) and Rao Khurshid Alam v. Government of Punjab through Principal Secretary to Chief Minister and others (2008 PLC (C.S) 892).
4. After giving a patient hearing to the learned counsel for the petitioner I do not see eye-to-eye with him because it is not denied by him that the petitioner is a civil servant. It is also not denied that the matter relates to the terms and conditions of service. Insofar as the allegation leveled that the petitioner has been transferred under the influence of a local M.P.A., the said allegation has been found to be a bald and vague assertion. Neither the name of the said M.P.A. nor the number of his constituency has been mentioned in the writ petition. It is not the case of the petitioner that he has been transferred frequently in a short span of time rather it has not been mentioned in this petition that since when the petitioner has been performing his duties at the present place of his posting, therefore, the law laid down by the Hon'ble Supreme Court in Zahid Akhtar's (supra) case is inapplicable in the instant case. In the said case it was held that the normal period of tenure of a government employee at a particular station, under the policy decision of the government, is three years, which according to the Hon'ble Supreme Court has to be followed in the ordinary circumstances, unless of the reasons of exigency of service mentioned in the policy of government, a transfer before the expiry of three year's time becomes necessary in the opinion of Competent Authority. In the said case, the Hon'ble Supreme Court had disapproved the policy of the government to transfer the government servants frequently Nevertheless the order of the dismissal of the writ petition in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan was not interfered with by the Hon'ble Supreme Court. In the said case, while giving certain instructions to the bureaucracy, the petition instituted before the Hon'ble Supreme Court against the order of dismissal of the writ petition, was dismissed. Besides, as mentioned above, it is not the case of the petitioner that he has been transferred before the completion of three years tenure at the present place of his posting. It is also not the case of the petitioner that he has been made victim of frequent transfers within a short span of time, therefore, the observations made by the Hon'ble Supreme Court in that case are not applicable to the case of the petitioner.
5. Insofar as the case of Roshan Khan (supra) is concerned, the same is not applicable in this case because in the said case the order of the N.W.F.P. Service Tribunal was set aside. Service Tribunal, of course, has jurisdiction to entertain such like matters. Therefore, the said case is obviously not helpful to the petitioner.
6. As far as the other case law cited by the learned counsel for the petitioner is concerned, the same being contrary to the unambiguous judgments of the Hon'ble Supreme Court, is not binding on me. Under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, any decision of the Supreme Court, to the extent that it decides a question of law or is based upon or enunciates a principal of law, is binding on all Courts functioning in the country. Therefore, this Court cannot pass any order which is contrary to the view/decision of the Hon'ble Supreme Court on any particular point. In the case of Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54), the view given by the Hon'ble Supreme Court in earlier cases was reiterated by holding as under:-- "It is well-settled by now that the question of posting of a 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 terms and conditions 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 in 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 learned Service Tribunal has full jurisdiction to interfere in such-like matters." (underlining is mine).
In the said case the judgment of a Division Bench of Balochistan High Court dismissing the writ petition in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, was upheld by the Hon'ble Supreme Court. In the cases of Syed Mazhar Hussain Bukhari v.
Secretary, Government of Punjab Local Government and Rural Development, Department, Lahore and others (1998 SCMR 1948), Asadullah Rashid Vs. Haji Muhammad Muneer and others (1998 SCMR 2129), the Hon'ble Supreme Court laid down that the orders, even if passed mala fidely or corum non-judice, fall within the ambit of Service Tribunal and jurisdiction of Civil Court or High Court is ousted. If any other case law is required, reliance is placed on the cases of Musharaf Ali v.
The Province of Punjab and others (1988 SCMR 991), Imam Baksh and 4 others v. Deputy Commissioner, Layyah and 16 others (1992 SCMR 365), Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others (1997 SCMR 167), Ayyaz Anjum v. Government of Punjab Housing and Physical Planning Department Though Secretary and others (1997 SCMR 169), Rana Muhammad Sarwar v.
Government of Punjab through Services, General Administration and Information Department and another (1990 SCMR 999), Munshi Muhammad Azam v. SAC. etc. (PLJ 1996 Lahore 16 (DB).
7. In the last case, mentioned above, the learned Division Bench of this Court held as under:-- "The order of the Departmental Authority of the transfer of a Civil Servant is such against which under the said rules no departmental appeal lies before the higher authority therefore, the said order once passed by the Departmental Authorities is the original final order against which the aggrieved Civil Servant if he wants to get relief in the form of interim order for suspension of the same may immediately approach the Administrative Court or Tribunal without exercising the privilege of filing a representation as under the law the filing of the same or the decision made thereon does not have the effect of destroying the finality of the order passed by the Departmental Authority to make it appealable before the Administrative Court or Tribunal."
8. In the case of Ayyaz Anjum, (supra) the interim order passed by this Court in a transfer matter was set aside by the Hon'ble Supreme Court while observing as under:-- "Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal. The jurisdiction of High Court is barred in these matters by the express provisions of Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973. We are therefore unable to support the interim order made by it in this case. Accordingly, we convert this petition into appeal and set aside the said order. The High Court should first determine the question of its jurisdiction before making any interim order in this case."
9. In case of Miss Rukhsana (supra) as well the Hon'ble Supreme Court set aside the stay order passed by this. Court in transfer matter and while remanding the case it was observed as under:-- Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal and the jurisdiction of High Court is excluded in such matters by virtue of the express provisions of Article 212(2) of the Constitution."
10. In view of the said consistent case-law laid by the Hon'ble Supreme Court and Division Bench of this Court as well as the bar contained under Article 212 of the Constitution of. Islamic Republic of Pakistan, 1973, I am not inclined to entertain this petition, which is dismissed in limine, with an observation that the petitioner may avail alternate remedies available to him under the law, if so advised.