Mrs. Irshad Qaiser, J.--Muhammad Ibrar, petitioner, through the instant writ petition has challenged the order dated 28.11.2012 passed by Respondent No, 2, whereby he has been transferred in compliance with the directive of Chief Minister, KPK.
2. Learned counsel appearing on behalf of the petitioner contended that the impugned order besides, being illegal, mala fides and based on ulterior considerations, is liable to be struck down in the exercise of constitutional jurisdiction of this Court. Such order, the learned counsel added, is all the more illegal, when it was made under the aegis of the Chief Minister. The learned counsel next contended that that when the Government itself has evolved a policy and guaranteed tenure of the Government servant, respondents cannot be permitted to give weight to their personal whim and caprice to turn the affairs of the Province into those of a personal dominion. Learned counsel for the petitioner to support his contentions placed reliance on the cases of `Gulzar Ahmad vs. D.O.R. in Writ Petition No, 1819/2008 decided on 23.11.2008, Tariq Hussain vs. Gulzar Ahmad in Civil Petition No, 1048 of 2008 decided on 28.11.2006, Dr. Sabir Hussain vs. Dr. Sultan Ali Shah and others in Civil Petition No, 1725 of 2010 decided on 9.9.2010.
3. As against that, learned AAG, appearing on behalf of the official respondents contended that transfer and posting including eligibility for promotion being relatable to the terms and conditions of service, are amenable to the jurisdiction of Service Tribunal, as such, this Court will have no jurisdiction to proceed with the matter; that being a Government servant he is liable to be transferred anywhere and that he cannot be allowed to object his posting and transfer.
4. It is settled principle of law that the Constitution of any country is the "Grand Law of the Land" or "mother of all laws". For speedy justice constitution confers the powers to the legislature to establish Administrative Courts and Tribunal exercising exclusive jurisdiction in such like special matters. The purpose of these Tribunals or special Courts is to dispense the justice in a speedy and specialized manner.
5. Such like powers are conferred by the Constitution of Islamic Republic of Pakistan to legislature in Article 212. The bare text of Art. 212 is being reproduced as under:--
212. Administrative Courts and Tribunals.--(1) Notwithstanding anything hereinbefore contained, the appropriate legislature may by act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-- (a)matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters; (b)
(c)
2. Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court to Tribunal extends ---
6. In above-article the words "To Exercise Exclusive Jurisdiction" puts a bar on the jurisdiction of other Courts including Civil as well as High Courts to exercise their jurisdiction in the matter specified in the above-referred Article. Hence we have also confined ourselves to analyze the Bar of this Article 212 on the jurisdiction of High Court. In this regard Service Tribunals Act, 1974 is very important for the sake of determining the legal impact of the bar of Article 212(2) on the constitutional jurisdiction of High Court. The Article 212 mandates the legislature about the establishment of Tribunal in respect of matter relating to terms and conditions of service of a person, whereas Section 4 of the Service Tribunals Act, 1974 determines the jurisdiction of Service Tribunal. Under the Civil Servants Act, 1973 there are ten matters which are considered as terms and conditions of civil servant i,e, (1) Appoint, (2) Probation, (3) Confirmation, (4) Seniority, (5)
Promotion, (6) Posting transfer, (7) Termination of service, (8) Retirement and (10) Efficiency and Discipline, (11) Pay, (12) Leave, (13) Pension and gratuity, (14) Provident Fund and (15) Benevolent fund and group insurance.
7. This matter was discussed by Hon'ble Supreme Court in judgment reported in 2007 SCMR 886.
The relevant portion is reproduced as under: The fundamental principle which is thus, clearly enunciable from the said provisions of Section 3(2) of the said Act of 1973, is that the same hold out a guarantee to all civil servants that no action could ever the taken which could adversely affect the terms and conditions of their service e.g. the tenure of their employment, the pay and the grade earned by them through years of labour and hard work; the rights to promotion including the legitimate expectancy of future advancement in their respective careers; the retirement benefits such as pension, the gratuity and provident fund etc., and all other terms and conditions which were prescribed by Chapter II, of the said Act of 1973 and by other laws, rules and regulations relating to the subject?.
8. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
9. Though there may be some substance in the grievances of the petitioner but they being related to the terms and conditions of service fall within the exclusive domain of the Service Tribunal.
Orders of transfer and posting based on mala fide and ulterior motive, too, can be dealt with in the first instance by the Departmental Authority and then by the Service Tribunal. In the cases of Miss Rukhsana Ijaz vs. Secretary, Education. Punjab and others (1997 SCMR 167), Ayyaz Anjum vs. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169), and Rafique Ahmad Chaudhry vs. Ahmad Nawaz Malik and others (1997) SCMR 170), it has been repeatedly held by the Hon'ble Supreme Court that transfer and posting being related to the terms and conditions of service would fall within the exclusive domain of the Service Tribunal and that the High Court cannot step in to interfere therewith under Article 199 in view of an express bar envisaged by Article 212(2) of the Constitution. In the case of Secretary Education NWFP Peshawar and 2 others vs. Mustamir Khan and another (2005 SCMR 17), the Hon'ble Supreme Court held in no uncertain terms that where transfer is motivated by =la fides or is based on extraneous considerations to accommodate .some blue-eyed chap, it being justiciable, can well be taken to the Service Tribunal, which has the exclusive jurisdiction to inquire into such matters. In the case of Peer Muhammad vs. Government of Baluchistan through Chief Secretary and others (2007 SCMR 54), the Hon'ble Supreme Court held as under:-- It is 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 the jurisdiction of all others 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 Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such like matters." Reference may be made to 2007 PLC (CS) 1071).
10.In the case of Zahid Akhtar vs. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 Supreme Court 530), the Hon'ble Supreme Court despite condemning the phenomenon of passing orders of transfer and posting of civil servants on the dictates of the elected representatives, declined to interfere therewith.
11.We, too, by respectfully following the dicta laid down by the Hon'ble Supreme. Court in the above noted judgments condemn the orders of transfer and posting of the Civil Servants passed by the bureaucrats on the biddings of the elected representative or on account of mala fides or political considerations. But since redress can be had by an appeal before the departmental authority and then before the Service Tribunal, on proof of such facts, we cannot interfere with such orders in the exercise of our extraordinary equitable discretionary constitutional jurisdiction. This is what this Court held in the cases of Bakhtiar Ahmad vs. SMBR in W.P. No, 1167 of 2006 decided on 3.8.2006, Professor Rehana Matiullah vs. Chief Secretary and others in W.P. No, 1496 of 2006 decided on 12.2.2006, S. Mansoor Hussain Shah vs. Secretary LG/RD in W.P. No, 1153 of 2006 decided on 3.8.2006, Waqif Khan vs. Government of N.W.F.P. in W.P. No, 1114 of 2006 decided on 28.7.2006, Pervez Khan vs. Addl. Chief Secretary FATA in W.P. No, 2261 of 2006 decided on 14.2.2007, Serat Bibi vs. Government of NWFP in W.P. 1559 of 2006 decided on 5.10.2006, Abdul Qadir vs. Government in W.P. No, 561 of 2006 decided on 12.5.2006, Nawab Gul vs. SMBR in W.P. No, 1033 of 2006 decided on 18.7.2006, Sardar Ali vs. Director School in W.P. No, 942 of 2006 decided on 13.7.2006 and Muhammad Ilyas Khan vs. District Revenue and Estate Officer and others in W.P. No, 835 of 2007 decided on 23.5.2007.
12. Having concluded as above, we are of the view that there may be very rare and exceptional cases where the High Court would be constrained to indulge in exercising of its Constitutional jurisdiction to prevent the course of justice being defeated on account of sheer mala fide act of the authority, making the offending orders. Supposing if any officer is inquiring into any case of corruption or corrupt pracuces or investigating into the same on criminal side showing and exhibiting fair play, extreme honestly and work diligently to trace out the culprits involved in embezzlement of money of public exchequer or naked fraud is committed on State exchequer by those who are mighty and affluent or influential and the transfer order is visibly and apparently aimed at to choke or divert the course of inquiry and investigation in a given case to get a clearance certificate/chit from the successor-in-office, who has been apparently brought in for achieving nefarious object with detestable design, to defeat the ends of justice to dishonestly exonerate these who had digested money of public exchequer through under table bargains, kick- backs and corrupt practices so to go scot-free, and because the procedure for reversing the transfer order in that case through departmental authority would be a futile exercise because acting under the thumb of mighty and powerful authority at the top and that fraud on law apparently being committed is likely to endorse the transfer order as an obedient and complaint servant of the mighty and not of the State. If such element of fraud and corrupt practices are involved in the transfer order then, it becomes the duty of the High Court to intervene into the matter and to thwart the nefarious design of the corrupt elements diverting the course of investigation or inquiry, as the case may be, so that ends of justice are not defeated and the concerned authorities are set right to de what is required by the Constitution and the law to do, however, while assuming Constitutional jurisdiction, it would be essential that such elements must exist on record otherwise the jurisdiction of the High Court under Article 199 of the Constitution would not be attracted.
13. When considered in this back ground, we do not feel persuaded to interfere with the impugned order. This writ petition being without substance is dismissed. Since the main writ petition has dismissed, all the C.Ms. having become infructuous are hereby dismissed.