' MAHMOOD AHMAD BHATTI, J. --- The petitioners filed this petition, contending that petitioner No. 1, Mrs. Hanifa Akhtar is a Headmistress in BPS-19 at Government Girls High School Community Model, Bahawalpur, whereas Mrs. Shahida Kousar, petitioner No. 2 is Senior Headmistress at Government Girls High School Junior Model, Bahawalpur in BPS-18. However, the post of petitioner No. 1 has been downgraded, while that of petitioner No. 2 has been upgraded in BPS-19.
2. Leaving aside the details of the grievance made by the petitioners, it was prayed by them as under:- 'In view of above, it is respectfully prayed that by accepting this writ petition, the direction may kindly be issued to respondents to shift/transfer the petitioners under 'Rationalization Policy' fixation of sanction strength under four tier formula from Government Girls High School Community Model to Government Girls High School Junior Model, Bahawalpur where the post is upgraded in BPS-19 in the best interest of justice.'
3. At the very outset, preliminary objection was raised by the learned Law Officer to the maintainability of this petition in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
4. Mr. Jamshaid Akhtar Khokhar, Advocate, learned. Counsel for the petitioners has maintained that this petition is maintainable. In order to reinforce his submissions, he has made reference to Section 4 of the Punjab Service Tribunal Act, 1974. He has elaborated that in the absence of any original or appellate order passed by the respondents, the petitioners cannot approach the Service Tribunal. It is also urged by him that the petitioners have primarily challenged the upgradation and downgradation of their posts. This has nothing to do with their terms and conditions of service.
Therefore, according to him, the case of the petitioners is not hit by the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. He has also made the argument that a representation of sorts of the petitioners is pending decision with the District Co-Ordination Officer, Bahawalpur, who was supposed to make a speaking order thereon within a reasonable time. It was implied by him that even in the face of the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, a direction can be issued to DCO, Bahawalpur to decide the representation made by the petitioners within a specified period.
4. I have given my anxious consideration to the contentions raised by the learned counsel for the petitioners, but I regret my inability to agree with him. I cannot appreciate his argument that the upgradation and downgradation of posts cannot be treated as a part of the terms and conditions of service. It goes without saying that if a post is upgraded, its incumbent would also be entitled to draw a salary of a higher post. Conversely, the downgradation of a post would entail the reduction in salary as well as the benefits and privileges attached to that office. Again, it is well-established law that if a Court or Tribunal lacks jurisdiction to grant main relief, it cannot grant ancillary relief either. No matter how worded the petition, the fact remains that the petitioners are primarily aggrieved by the upgradation and downgradation of their posts, due to which the respondents are obliged to order their transfers from their present place of postings as well.
5. I am of the considered opinion that under the guise of seeking a direction to DCO, Bahawalpur, the Constitutional bar contained in. Article 212 cannot be overcome. It goes without saying that what cannot be achieved directly is not to be allowed to be achieved indirectly. This is exactly what the petitioners are aiming at by means of the instant writ petition.
6. Time and again, the Hon'ble Supreme Court of Pakistan has impressed upon the High Courts that their jurisdiction under Article 199 is subject to the other provisions of the Constitution, Article 212 being one of them. Suffice it to make reference to "Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training Lahore and others" (PLD 2003 S.C. 110), "Peer Muhammad v. Government of Balochistan through Chief Secretary and others" (2007 SCM R 54), "Government of Sindh through Secretary Education and Literacy Department and others v Nizakat Ali and others" (2011 SCM R 592) and "National Assembly Secretariat through Secretary v. Manzoor Ahmed and others" (2015 SCM R 253) in which it was held that the High Court is not vested with the jurisdiction to pass any order regarding the terms and conditions of a civil servant, and that this jurisdiction is conferred upon the Service Tribunal.
7. In quite a recent judgment reported as "Ali Azhar Khan Baluch v. Province of Sindh, etc. (2015 SCM R 456), the Hon'ble Supreme Court has held as under:--- "149. Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 ousts the jurisdiction of High Courts and Civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to Civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of Civil Courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals.
150. The High Court of Sindh has completely overlooked the intent and spirit of the Constitutional provisions relating to the terms and conditions of service, while entertaining civil suits had constitution petitions filed by the civil servants, which are explicitly barred by Article 212. The expression 'Terms and Conditions' includes transfer, posting, absorption, seniority and eligibility to promotion but excludes fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade as provided under Section 4(b) of the Sindh Service Tribunals Act, 1973. Surprisingly, it has been ignored that it is, by now, a settled principle of law that the civil and writ jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the learned Judges of High Court of Sindh have erroneously exercised both civil and writ jurisdictions with regard to the terms and conditions of civil servants.
151. We, for the aforesaid reasons, conclude that the exercise of jurisdiction by way of suit and Constitution petition filed by a civil servant with regard to his terms and conditions of service is vocative of Articles 175, 212 and 240 and the law."
8. For the foregoing reasons, this petition is not maintainable and accordingly is dismissed in limine.