1. ' NADEEM AZHAR SIDDIQI, J.--- By filing this Constitutional petition the petitioner has called in question his frequent transfer orders from 13-1-2009 to 14-5-2009 on the pretext that the same are illegal, void, ma.La fide and contrary to the principle of natural justice and are not sustainable in law.
2. ' The facts necessary for disposal of this petition are that the petitioner was appointed as Sub- Inspector in Exercise and Taxation Department on 9'42-1972 in Grade-8, which was upgraded to Grade-14. Thereafter, the petitioner was promoted in Grade-16 as Assistant Excise and Taxation Officer in 1992 and was again promoted as Excise and Taxation Officer in Grade-17 in the year, 2005.
3. During his service period, certificates of appreciation, certificate of merit and cash awards were awarded to him.
4. ' Learned A.A.-G. Has filed the comments on behalf of the respondent No,3 in which it has been stated that the Government required the posting of experienced officers in the public interest, hence transfers were made in the best interest of public for betterment of good governance. It was further stated that the transfer orders were issued with the approval of competent authority as well as on administrative ground and while issuing transfer orders, no violation of the instruction of Cabinet Division has been made.
5. ' Learned A.A.-G has also filed documents along with his statement dated 25-6-2009 in compliance of the order dated 16-6-2009.
6. ' Learned counsel for the petitioner submits that the transfer orders of the petitioner were not made in the public interest and the same were issued with mala fide intention to victimize the petitioner.
7. He further submits that from 13-1-2009 to 14-5-2009 the petitioner was transferred six times without any cause and justification, which clearly reflects the mala fide on the part of the respondents. He then submits that the petitioner is going to be retired on 2-3-2010 on attaining the age of superannuation and as per rules, he cannot be transferred from one post to another within a period of one year prior to the date of his retirement. He then submits that the respondent No,2 has issued a letter dated 29-9-2008 directing the departments to avoid frequent transfers and postings. (The copy of the letter has been produced by the learned counsel for petitioner in Court today). He also submits that transferring the petitioner and allowing a junior officer of Grade-16 to hold a post of Grade-17 is against the decision of the Cabinet Division and refers to the letter dated 6-6-2008 available at page 47 of the file of this petition. In support of his contention he has relied upon following reported cases:---
(1) M.S. Faruki, Chief Officer, Lahore Municipal Corporation, Lahore v. The Province of West Pakistan and others PLD 1970 Lah. 195; (2) Messrs Colgate Palmolive (Pakistan) Ltd. v. Federation of Pakistan and others 2004 PTD 2516; (3) Mahar Maqbool Ahmad, Manager, Auqaf, Rahimyar Khan v. Auqaf Department, Punjab, Lahore through its Chief Administrator, Auqaf and another 1997 PLC (C.S.) 639 and (4) Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046.
8. ' Conversely, learned A.A.-G submits that the transfer and posting is the part of terms and condition of the service and this petition in view of the specific bar contained under Article 212 of the Constitution of Pakistan is not maintainable. He then submits that the petitioner has failed to point out any mala fide on the part of the respondents in issuing transfer and posting orders, which were made in the public interest. In support of his contention, he has relied upon reported case of Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54.
9. ' In rebuttal, learned counsel for the petitioner submits that where the orders are mala fide, ab initio void and has been passed in violation of the rules of natural justice same can be challenged by way of filing of the petition in the High Court. He then submits that the jurisdiction of High Court is only ousted in the matter in which the Service Tribunal has jurisdiction and since in this matter transfer orders were frequently issued the petitioner was not in a position to file departmental appeals and to wait for considerable time to file appeal before the Service Tribunal and even if, the petitioner files an appeal before the Tribunal there will be no chance of its disposal before the retirement of the petitioner.
10. ' We have heard the learned counsel for the parties and have perused the record of this case made available before us.
11. From the perusal of the record produced before us there is no doubt that the petitioner has been transferred frequently from one post to others within a short period of four months. Last transfer order of the petitioner was issued on 14-5-2009 by which he was directed to report to the Excise and Taxation Department.(Secretariat) with immediate effect until further orders. The transfer and posting is the part of terms and conditions of the service of the petitioner and he has no vested legal right to be posted against a particular post. It is the wisdom of the employer to use the services of the petitioner according to his ability and he cannot claim or ask to be posted on a particular post. Learned counsel for the petitioner has failed to point out any law or rule in support of his contention _that within a period of one year before retirement the petitioner cannot be transferred.
12. ' As far as the contention that the junior officer of Grade-16 was allowed to hold a post of Grade-17 in his own pay and scale is concerned, the said officer has not been arrayed as party to the proceedings and in his absence no finding can be given in this regard.
13. ' The main issue in this petition is frequent transfer and posting of the petitioner. Admittedly, the petitioner is a civil servant. It is now well-settled principle of law that transfer and posting is the part of terms and conditions of the service and the Service Tribunal has exclusive jurisdiction in the matter and the jurisdiction of other Courts are ousted in view of the specific provision of Article 212 of the Constitution of Pakistan.
14. ' In the reported case of Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167 it has been held that dispute between them relates to their transfer/posting which is a matter relatable to terms and conditions of their service. Disputes about these matters fall within the exclusive jurisdiction of the Services 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.
15. ' In another reported case of Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 it has been held that the consistent view of this Court has been that a writ petition or Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction in view of the provision contained in Article 212 of the Constitution.
16. In the same reported case it was further held that even in the cases where the order is mala fide the bar of Article 212 of the Constitution is attracted.
17. ' In the reported case of Peer Muhammad (supra) relied upon by the learned A.A.-G the Honourable Supreme Court of Pakistan has held that 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. Regarding the plea of mala fide in the same judgment it has been held that 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.
18. ' In the reported case of M.S. Faruki, Chief Officer (supra) relied upon by the learned counsel for petitioner, it has been held that since the petitioners had accepted service under the Municipal Administration' Ordinance, 1960, though their appointments have been protected by section 4(2) of the Municipal Administration Ordinance yet they cannot claim as of right, to serve in the Lahore Corporation in particular in view of section 29 of the said Ordinance. In the same judgment it has further been held that persons serving in the Municipal Committees cannot be transferred to Local Councils, but they can certainly be transferred from one Municipal Committee within the jurisdiction of their controlling authorities.
19. ' In the case of Messrs Colgate Palmolive (Pakistan) Ltd. (supra) relied upon by the learned counsel for petitioner it has been held that if an order or decision is absolutely illegal, contrary to the provisions of law or established practice or is mala fide then the aggrieved party can approach High Court directly by way of Constitutional petition.
20. ' In the case of Mahar Maqbool Ahmed (supra) relied upon by the learned counsel for petitioner learned Bench of Lahore High Court has held that in a case where mala fide is patent on record and the actions of the respondents in transferring the petitioner frequently are subject to scrutiny by this Court to secure the ends of justice and save the petitioner from constant harassment and perpetuation to mala fides against him.
21. ' In the case of Muhammad Dawood and others (supra) a Full Bench of this Court has held that irrespective of an employee of a State controlled corporation not being a civil servant the corporation themselves continue to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution.
22. ' The judgments cited by the learned counsel for petitioner having distinguishable facts and circumstances are not applicable to the present case.
23. After considering the material available on record and following the principle laid down by the Honourable Supreme Court in the above-referred cases, we are of the considered view that the transfer and postings, even if mala fide, cannot be challenged by way of filing of this petition due to the bar contained in Article 212 of the Constitution of Pakistan, hence we do not find any merits in this petition, which was accordingly dismissed along with listed application by passing short order dated 17-7-2009.
24. ' This petition stands disposed of accordingly and above are the reasons of the said short order.