MUHAMMAD SAJID MEHMOOD SETHI, J.- This consolidated judgment shall decide instant petition along with following connected petitions as common questions of law and facts are involved in these cases:-
1. W. P. No.6606 of 2013 / BWP titled Hina Ashraf v . Government of Punjab & others
2. W. P. No.4895 of 2014 / BWP titled Syed Muhammad Nadeem Tahir v. District Coordination Officer , Rahim Yar Khan and others
3. W. P. No.9678 of 2015 / BWP titled Sardar Muhammad Aslam v. District Coordination Officer , Bahawalpur & others
4. W. P. No.9716 of 2015 / BWP titled Abdul Haq v. Secretary , School Education, Government of the Punjab & others
5. ICA No.31 of 2015 / BWP titled Farzana Kausar v . Executive District Officer (Education) Bahawalnagar & others
6. W. P. No.435 of 2016 / BWP titled Allah Bakhsh v . The District Coordination Officer , Bahawalpur & others
7. W. P. No.1279 of 2016 / BWP titled Naeem Rizwan v. Executive District Officer (Education), Bahawalnagar & others
8. W. P. No.1410 of 2016 / BWP titled Muhammad Hafeez v. Executive District Officer (Education), Bahawalnagar & others
9. W. P. No.1689 of 2016 / BWP titled Sameena Iqbal v . District Coordination Officer , Rahim Yar Khan & others
10. W. P. No.1991 of 2016 / BWP titled Shabana Sadiq v . Government of Punjab & others
11. W. P. No.2048 of 2016 / BWP titled Muhammad Afzal v . District Coordination Officer , Rahim Yar Khan & others
12. W. P. No.2089 of 2016 / BWP titled Muhammad Idrees v. District Coordination Officer , Rahim Yar Khan and others
13. W. P. No.2209 of 2016 / BWP titled Rana Shahid Mehmood v. District Coordi nation officer , Bahawalnagar & others
14. W. P. No.3348 of 2016 / BWP titled Yousuf Ali & another v. The District Coord ination Officer , Bahawalnagar & others
15. W. P. No.3674 of 2016 / BWP titled Liaquat Ali v. District Education Officer (S.E.) Bahawalpur & another
16. W. P. No.3716 of 2016 / BWP titled Mrs. Gulnaz Kausar v. Headmistress, Government Girls Elementary School, T ehsil Sadiq Abad & others
17. W. P. No.4588 of 2016 / BWP titled Muhammad Asif v . Government of Punjab & others
18. W. P. No.7202 of 2016 / BWP titled Jam Muhammad Rafique v . Government of Punjab & others
19. W. P. No.8527of 2016 / BWP titled Muhammad Abdul Mujtaba Saeedi v. Executive District Officer (Education), Bahawalpur & others
20. W. P. No.8724 of 2016 / BWP titled Sardar Muhammad Aslam v. The District Coordination Officer , Bahawalpur and others
21. W. P. No.9239 of 2016 / BWP titled Mst. Rubina Shaheen v. Secretary , Scho ol Education, Government of Punjab and others
2. Brief facts of the case are that petitioners were serving in Govt. Girls Elementary School, Chak No.4/FW , Tehsil Chishtian, District Bahwalanagar (GGES ), where respondent No.6 was the Headmistress. Respondent No.6, on certain charges, passed order dated 18.09.2015, whereby services of petitioners were surrendered/relieved from GGES and placed at the disposal of District Officer (Education), Bahawalnagar . On the complaint of teachers/staf f members of GGES, an inquiry was conducted by District Education Officer (SE), Bahawalnagar , who recommended that petitioners as well as respondent No.6 be transferred from GGES, vide report dated 03.10.2015. Relying upon said report, District Coordination Officer, Bahawalnagar directed E.D.O. (Education) to transfer petitioners as well as the Headmistress against the seats mentioned against their names, vide order dated 20.10.2015, in compliance whereof, Executive District Officer, (Education), Bahawalnagar , approved the transfers of petitioners and respondent No.6, vide order dated 13.11.2015. Through instant petition, petitioners have assailed orders dated 18.09.2015, 20.10.2015 and 13.1 1.2015.
3. Learned counsel for petitioners submit that respondent No.6/ Headmistress, Govt. Girls Elementary School, Chak 4/FW , Tehsil Chishtian, is neither the appointing authority nor competent to relieve / surrender the petitioners.
They further submit that the D.C.O. / respondent No.2 stands nowhere in the scheme of law, hence, impugned orders are not sustainable in the eye of law. They add that petitioners have neithe r been served any Show Cause Notice nor provided opportunity of personal hearing to them, which are conditions precedent as provided in Clause
(b) of para 4 (iii) of the Transfer Policy , 2013. They contend that transfer / surrender of teachers cannot be made on disciplinary or administrative ground except coupled with inquiry under the Punjab Employees Efficiency , Discipline and Accountability Act, 2006 (PEEDA) . They argue that impugned orders are tainted with malice and have been passed during the ban on transfer of teaching staff. They further contend that terms and conditions of service are contained in Sections 3 to 21 of the Punjab Civil Servants Act, 1974. They add that "surrender and relieving" do not come within the purview of terms and conditions of service of a civil servant, there fore, the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) does not apply in the instant matter . In support of their contentions, they have placed reliance upon Regional Commissioner Income Tax, Northern Region, Islamabad and another v . Syed Munawar Ali and others (2016 SCMR 859 ).
4. On the other hand, learned Law Officers, assisted by learned counsel for respondent, submit that petitioners have challenged their transfer and posting which relates to the terms and conditions of service, so, the matter may be agitated before the Punjab Service Tribunal, thus, these petitions are not maintainable. They add that petitioners were creating problems in GGES, as a result thereof they were transferred to different secondary schools of Tehsil Chishtian on administrative grounds in the interest of students of said school, by respondent No.2 being competent authority to transfer teachers serving in BPS-11 to BPS-18 within the district, as provided under Para 12 of the Transfer Policy, 2013. They further submit that this Court has no jurisdiction to entertain these petitions in view of the bar contained in Article 212 of the Constitution. In support of their contentions, they relied upon Iqan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 Supreme Court 153), Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 Supreme Court 530), Khalid Mehmood Wattoo v. Government of Punjab and others (1998 SCMR 2280), Pervaiz Aslam v. Ilyas Hussain Shah and another (1999 SCMR 784), Peer Muhammad v.
Government of Balochistan through Chief Secretary and others (2007 SCMR 54), Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others (2011 SCMR 592), Abdul Bari v.
Government of Pakistan and 2 others (PLD 1981 Karachi 290), Khalil ur Rehman and others v. Government of Pakistan and others (PLD 1981 Karachi 750) and Nisar Ahmad v. Government of the Punjab and another (1992 PLC (C.S.) 1020).
5. Arguments heard. Record perused.
6. Surrendering/relieving order dated 18.09.2015 passed by Headmistress, only provided basis for initiation of an inquiry in the matter and basing on inquiry report/recommendations, D.C.O. directed E.D.O. (Education) to transfer petitioners and respondent No.6 and ultim ately, E.D.O. (Education), Bahawalnagar passed the transfer order dated 13-11-2015 transferring respondent No. 6 as well as petitioners, which is reproduced below for ready reference: "In compliance with the decision announced / passed on 20.10.2015 by the worthy District Coordination Officer Bahawalnagar in Writ Petition No. 7771 of 2015 titled Irshad Begum etc VS DCO whereby he is pleased to approve the following transfers of teachers on Administrative Grounds in public interes t for the benefit of educational institute i.e. Govt. Girls Elementary School 4/FW , Chishtian with immediate ef fect.
Sr. No. Name of Teacher with Designation & Place of PostingTransferred / Posted at:Remarks
1. Mst. Nusrat Noor , SST / Head Teacher Govt. Girls E/S 4/FW , ChishtianAs SST (G) Govt.
Girls H/SS Dahranwala Tehsil ChishtianAgainst Vacant Post
2. Mst.Irshad Begum, EST Govt. Girls E/S 4/FW , ChishtianAs EST at Govt.
Girls H/S 95/F (S)
Tehsil ChishtianAgainst Vacant Post
3. Mst. Zahida Nazir, PST Govt. Girls E/S 4/FW, ChishtianAs PST at Govt. Girls H/S 123/M, ChishtianAgainst Vacant Post DEO (EE-W) & DEO (SE) Bahawalnagar are directed to ensure compliance of these orders accordingly and put up proposals of vigilant teachers for adjust ment against the resultant vacancies at Govt. Girls Elementary School 4/FW , Chishtian. Furthermore, all the above mentioned transferred teachers are strictly WARNED to be careful in future."
7. Perusal of the impugned order shows that matter in dispute relates to transfer and posting of the petitioners which falls within the preview of Section 9 of the Punjab Civil Servants Act, 1974. It is now well-settled that Article 212 of the Constitution bars the jurisdiction of this Court to entertain any matter which relates to the terms and conditions of services of civil servants. Since petitioners are civil servants and the matter in issue pertains to the terms and conditions of their service, as such it is not tenable in the constitutional jurisdiction of this Court owing to the bar contained in Article 212 of the Constitution. Reference in this regard can be made to Muhammad Sadiq Khokhar v. Engineer -in-Chief Pakistan Army , G.H.Q. and another (1985 SCMR 63), Rana Muhammad Sarwar v.
Government of Punjab through Services, General Administration and Information Department and another (1990 SCMR 999), Imam Bakhsh and 4 others v. Deputy Commissioner , Layyah and 16 others (1992 SCMR 365), Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539), Miss Rukhsana Ijaz v.
Secretary , Education, Punjab and others (1997 SCMR 167), Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169), Habib Bank Limited and others v.
Syed Zia-ul-Hassan Kazmi (1998 SCMR 60), Province of Punjab and another v. Ch. Muhammad Ashraf and another (2000 PLC (C.S.) 118) and Government of the Punjab and others v. Muhammad Zafar Bhatti and others (PLD 2004 Supreme Court 317). This Court is not supposed to entertain and adjudicate such dispute due to bar contained under Article 212 of the Constitution, and law laid down by the Hon'ble Supreme Court in Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456), the operative part of which is reproduced as under:- "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 violati ve of Articles 175, 212 and 240 and the law ."
8. Learned counsel for petitioners has argued that impugned orders under challen ge, having been passed without lawful authority , are without jurisdiction and based on mala fide, but despite accepting it legally correct, the bar under Article 212 of the Constitution restricts this Court from taking cognizance of the matter . Reference in this regard can be made to the cases of Khalid Mehmood Wattoo and Muzaffar Hussain supra. Even the plea of mala fide does not confer upon this Court jurisdiction to act in the matter as Service Tribunal is the appropriate forum, having full jurisdiction to interfere in such like matters.
9. The next argument of learned counsel for petitioners that terms and conditions of a civil servant are defined in Sections 3 to 21 of the Punjab Civil Servants Act, 1974 (the Act of 1974), which do not include "surrender and relieving", is misconceived. In terms of Section 9 of the Act of 1974, every civil servant is liable to serve anywhere within or outside the province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government, within the contemplation of said provisions of law. Office order dated 18.09.2015, surrendering/relieving services of the petitioners, can be considered a recommendation of Headmistress to the competent authority and, thereafter, the competent authority transferred the petitioners for the reasons recorded in the impugned order. Reference can be made to judgment passed in the case titled Pathan v. The State (2015 SCMR 315) wherein Hon'ble Supreme Court of Pakistan observed that head teacher had no authority to transfer a teacher of his school to another, but he can only recommend his transfer to the Education Officer of the District.
Initial recommendation of Headmistress stood merged in the final order passed by the competent authority and is no more in field under the doctrine of merger. Reference can be made to Sahabzadi Maharunisa and another v.
Mst. Ghulam Sughran and another (PLD 2016 SC 358). Initial or final order, whether illegal, without jurisdiction and corum non judice, remedy still lies before the Service Tribunal on account of bar contained in Article 212 of the Constitution. Therefore, office order dated 18.09.2015, surrendering / relieving services of the petitioners, cannot be assailed through constitutional petition under Article 199 of the Constitution.
10. Even otherwise, statute exercising a right of appeal from interim order could not be bypassed by bringing under attack such interim order in constitutional jurisdiction. Party effected thereto had to wait till it matures into final order and then to attack it in proper exclusive form. Under the law, when final order cannot be interfered with by this Court, interference qua interim order will manifestly frustrate the object of law and delay the disposal of main case.
Any forum or Court, which had no jurisdiction to decide the main matter in a case before it, had no jurisdiction to decide any ancillary or incidental matter thereto. Reference, in this regard, is made to Syed Saghir Ahmad Naqvi v.
Province of Sindh through Chief Secretary , S & GAD Karachi and another (1996 SCMR 1165), S.M. Waseem Ashraf v. Federation of Pakistan through Secretary M/O Housing and Works, Islamabad and others (2013 SCMR 338), Province of Punjab and another v. Ch. Muhammad Ashraf and another (2000 PLC (C.S.) 118), Muzaffar Hussain v. The Superintendent of Police, District Sialkot (2002 PLC (C.S.) 442) and Osman Khan through Attorney v. Aisha Naz and 2 others (2010 CLC 475 ).
11. Undeniably , the issue of upgradation did not form part of terms and conditions of service of civil servants as held by the Hon'ble Supreme Court in the case of Syed Munawar Ali and others supra, relied upon by the petitioners, but it has not been shown that the matter relating to transfer / posting / placement / repatriation / surrender does not come within the ambit of terms and conditions of service.
12. It needs to be emphasized that even any matter connected with the terms and conditions of service is also barred under the said provisions of the Constitution. The said ouster clause creates a bar with regard to all the matters falling within the ambit of authority of Service Tribunal. Even the vires of the rules on the plea of alteration of terms and conditions of service can be challenged before the Service Tribunal and bar of Article 212 of the Constitution in such case is applicable with full force. Petitioners cannot bypass Service Tribunal by adding a ground of assailing rules or violation of fundamental rights. The Service Tribunal is competent to adjudicate upon the question of vires of rules framed by the department, even if the same were challenged on the basis of violation of fundamental rights of the civil servant. As in the instant case, the Transfer Policy, 2013 has been challenged in some of the petitions, such rules / notification could be termed as an order within the contemplation of the provisions of the Punjab Service Tribunals Act, 1974 and could be challenged in appeal before the Service Tribunal. Reference, in this regard, is made to Iqan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 Supreme Court 153), I. A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Ms. Anyesha Bashir Wani and others v. Government of Pakistan and others (2012 PLC (C.S.) 31), Muhammad Asghar v. Government of Balochistan through Chief Secretary Balochistan and 6 others (2012 PLC (C.S.) 142), Abdul Khaliq v. Government of Balochistan through Chief Secretary, Civil Secretariat and 3 others (2012 PLC (C.S.) 1211) and Engineer Musharaf Shah v.
Government of Khyber Pakhtunkhwa through Chief Secretary and 2 others (2015 PLC (C.S.) 215).
13. In somewhat identical matter , the learned Division Bench of this Court in Fazal Ahmad Ranjha and 28 others v.
Government of the Punjab through Secretary Education (Schools), Lahore and 39 others [2016 PLC (C.S.) 1209 ], in the matter of transfer , posting and placement, has ruled as under:- "15. Keeping in view the aforenoted it is held that appellants are civil servants and were transferred/posted/placed as DTEs through different orders. Transfer/posting/placement is part of their terms and conditions of service.
Therefore, in case they have been sent back/transferred/posted/ repatriated, they cannot assert any right before this court in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan. We are guided by the dictum laid down by the Honourable Supreme Court of Pakistan in judgments reported as Secretary to Government of the Punjab Health Department, Lahore and others Vs Dr.Abida Iqbal and another (2009 SCMR 61), Peer Muhammad Vs Government of Balochistan through Chief Secretary and others (2007 SCMR 54), Syed Mazher Hussain Bukhari Vs 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) and Khalid Mahmood Wattoo Vs Government of Punjab and others (1998 SCMR 2280).
16. Apart from dealing with the question of transfer/posting of a civil servant, the Honourable Apex Court in the aforenoted judgments has dealt with the question that even if an order passed by a departmental authority qua terms and conditions of service of a civil servant is malafide, coram non judice, ultra vires or without jurisdiction, this Court has no mandate to look into or decide about the vires of such an order.
17. While discussing the bar contained in Article 212 of the Constitution, the Honourable Supreme Court of Pakistan has held in unequivocal and clear terms that the bar is absolute in view of the fact that under the aforenoted Article, respective Service Tribunals have been constituted to adjudica te upon and decide exclusively about the matters and issues pertaining to terms and conditions of service of a civil servants. Therefore, resort to this court by invoking Article 199 of the Constitution of the Islamic Republic of Pakis tan cannot be made. The words in which Article 212 of the Constitution is couched, gives it an overriding effect over the other Articles qua the terms and conditions of service, whereas the jurisdiction exercised under Article 199 being subject to the Constitution would be ousted insofar as the terms and conditions of services of a civil servant are concerned. Reliance can be placed on the judgments reported as "Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456 ) and National Assembly Secretariat v . Manzoor Ahmed and another (2015 SCMR 253 )."
14. Needless to observe here that underlying object of incorporation of Article 212 in the Constitution and establishment of Service Tribunal by legislation was to provide expeditious and inexpensive remedy to civil servants for redressal of their grievances arising out of violation of terms and conditions of their service.
Establishment of Service Tribunal aimed at prevention of intrusions into or inroad on terms and conditions of civil servants by departmental authorities. Unlike constitutional jurisdiction of this Court under Article 199 of the Constitution confined to question of law without venturing upon resolution of factual controversies, it was within the jurisdiction of Service Tribunal and it was its obligation to decide all questions of law and facts raised by petitioners in instant petitions. Civil servants could be transferred/surrendered/posted/repatriated during period of service anywhere, which would fall under terms and conditions of service or matters connected therewith and jurisdiction of this Court, under Article 212 of the Constitution, is explicitly barred. Case of petitioners fall within the ambit of Transfer Policy which, for all intents and purposes, forms part of terms and conditions of their service or matters connected therewith. Constitutional petition under Article 199 of the Constitution by a civil servant in relation to any matter connected with the terms and conditions of service, in respect whereof Service Tribunal has jurisdiction, is not maintainable in view of the provisions of Article 212 ibid. Reference can be made to case of Pervaiz Aslam supra.
15. In view of above, this petition as well as connected petitions, being not maintainable, are hereby dismissed with no order as to costs.