YAHYA AFRIDI, C.J.- Behram Khan, the petitioner , seeks the Constitutional jurisdiction of this Court praying for: "It is, therefore, prayed that on acceptance of the instant petition, this hon'ble Court may be pleased; i. To declare the impugned order of the petitioner 's transfer dated 07.09.2017 as illegal, without lawful authority and of no legal effect, and to direct the official respondents to withdraw the same without any amount of delay . ii. To grant any other remedy to which petitioner is found fit in law , justice and equity ."
2. In essence, the grievance of the petitioner is that he has been illegally transferred from the post of Reader attached to the Court of Special Court (Control of Narcotic Substances) Peshawar , to that of the Drug Court, Peshawar , vide impugned of fice order dated 7.9.2017.
3. The worthy counsel for the petitioner vehemently argued that the petitioner's appointment was Court specific; that the impugned order is in violation of the Tenure Policy mandating him to occupy the post for three years; that his departmental appeal is still pending; that there was political interference leading to his impugned transfer. In support of the contentions, the worthy counsel for the petitioner sought reliance upon Zahid Akhtar's case (PLD 1995 SC 530), Roshan Khan's case (2007 SCMR 599), Abdul Hameed Anjum's case (PLD 2010 SC 857), Syed Mahmood Akhtar Naqvi's case (PLD 2013 SC 195), Lt. Col. Syed Jawaid Ahmed's case (2013 SCMR 1707), and Mujeeb Ahmed's case (2015 P.S.C 900 Supreme Court).
4. When the worthy counsel for the petitioner was confronted as to whether the petitioner was a civil servant, he responded in the positive. When further asked how this Constitutional Court can entertain the impugned transfer order of the petitioner, when the same clearly falls within the purview of his terms and conditions of service, and thus, barred the constitutional Court to entertain the same under Article-212 of the Constitution of Islamic Republic of Pakistan, 1973, he responded by stating that the judgments cited in support of his contention are clear in this regard and thus, the present petition is maintainable.
5. Let us first start with the cases cited by the worthy counsel for the petitioner; In Zahid Akhtar's case (supra), it is noted that the petition impugning the transfer order filed before the High Court in Constitutional jurisdiction was declared not maintainable.
As far as Roshan Khan' s case (supra) is concerned, the matter emanated from an order passed by Services Tribunal and not by High Court exercising its Constitutional jurisdiction.
In Mujeeb Ahmed's case and Abdul Hameed Anjum's case (supra) the matter was declared to be justiciable, as no final order had been passed, which is not the case in hand.
In Syed Mahmood Akhtar Naqvi's case (supra), the Apex Court had entertained a direct petition in its suo moto jurisdiction, and the same did not discuss the maintainability of a petition relating to terms and conditions of service by a Constitutional Court, as in the present case.
Finally, as far as Lt. Col. Syed Jawaid Ahmed's case (supra) is concerned, the said case related to an employee of a statutory corporation owned and controlled by a Federal Government and not a civil servant, as is the petitioner in the present case.
In fact, the Apex Court in Ali Azhar Khan Baloch's case (2015 SCMR 456) has finally defined the jurisdictional contours of a High Court entertaining matters relating to terms and conditions of a civil servant. Strikingly remarks were rendered whereby worthy Judges of the High Court, assuming Constitutional jurisdiction in matters relating to terms and conditions of a civil servant, were stated to be exposed to the proceedings envisaged under Article-209 of the Constitution. The worthy Apex Court observed that; "149. Article 212 of the Constitution 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 and 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 violative of Articles 175, 212 and 240 and the law.
152. During the present proceedings, we were informed by the learned Additional Advocate General Sindh and other petitioners that the Civil Servants have filed suits and petitions before the High Court of Sindh on the subject, which was conclusively determined by this Court in its judgment under review. We called for the list of the Constitution Petitions as well as of the suits which were filed before the High Court of Sindh, and we are shocked to notice that numerous petitions and suits filed by the civil servants were pending and in some cases even restraining orders had been passed in the matters strictly falling outside the ambit of the suit or writ petition and the only and proper forum available in such cases was the Tribunal.
153. More alarmingly, we also observed that some of the suits and petitions were clearly in violation of the principles set by this Court in the judgment under review. The admission of these suits and petitions by the learned Judges concerned obviously confront and defy Article 189, if not attract the provisions of Article 209 of the Constitution." (emphasis provided)
In view of the above discussion, this petition is not maintainable, the notices issues to the respondents are hereby recalled and the petition is dismissed. However, the petitioner, if so advised, may seek his appropriate remedy as provided under the law .