1. The petitioner through instant petition has sought the following relief(s):- "a) Declare that the impugned Notifications bearing No,SOI (SGA&CD)3/17/2011 dated 29.05.2018 and No,SOI (SGA&CD)3/10/2014 dated 29.05.2018 issued by the respondent No,2 are illegal, without lawful authority and void ab-initio. b) Declare that the impugned Notifications both dated 29.05.2018 issued by the respondents Nos,1 and 2 are in violation of the law settled by Honourable Supreme Court in Anita Turab case (PLD 2013 SC 195) and principle of natural justice and liable to be set aside by this Hon'ble Court. c) Suspend the operation of impugned Notifications bearing No,SOI(SGA&CD)3/17/2011 dated 29.05.2018 and No,SOI (SGA&CD)3/10/2014 dated 29.05.2018 issued by the respondent No,2 whereby Notification dated 28.05.2018 of posting of the petitioner as Collector/Deputy Commissioner was withdrawn and Respondent No,3 was posted as Collector/Deputy Commissioner, Tando Adam (Tando Muhammad Khan) till the final disposal of present petition. d) For any other/additional relief(s) that this Hon'ble Court may deem fit and proper in the facts and circumstances of this case; e) Cost of the petition."
2. Learned Counsel for petitioner submits that initially on 16.02.2018 the petitioner was posted as Additional Secretary (BS-19), Special Education Department, and immediately thereafter on 07.03.2018 he was transferred and posted as Additional Secretary, Human Rights Department. He further submits that on 28.05.2018, petitioner was transferred and posted as Deputy Commissioner, Tando Muhammad Khan and pursuant to such notification he assumed charge on the same date, whereas, the said notification was subsequently recalled / withdrawn on the very next day on 29.05.2018 and respondent No,3 has been posted in his place. According to the learned Counsel, it is the case of the petitioner that firstly, no frequent transfers of a Civil Servant can be made in view of dicta laid down by the Honourable Supreme Court in the case reported as Mahmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195 (commonly known as Anita Turab's case), and secondly, the petitioner's frequent / subsequent transfers are based on mala fides, and without jurisdiction, to humiliate the petitioner. According to him the tenure of posting is protected, and therefore, no such transfers-can be made, whereas, it is the case of the petitioner that the present Executive and Election Commission are in connivance. He has finally contended that since Hon'ble Supreme Court has settled the law regarding transfer / tenure posting, hence in view of Article 189 of the Constitution of Pakistan the same is binding on all, including this Court and in support he has relied upon the case reported as Justice Khushid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483). As to the objection regarding maintainability raised by the office as well as by this Court, he has relied upon the cases reported as Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738), Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530), Syed Mehmood Akhtar Naqvi v. Federation of Pakistan (2013 SCMR 1), Muhammad Saleh Asim v.
3. Secretary Schools Education Government of Punjab [2009 PLC (C. S.) 44] and Mahar Maqbool Ahmed, Manager Auqaf Rahimyar Khan v. Auqaf Department, Punjab [1997 PLC (C. S.) 639]. Learned A.A.G on the other hand submits that there is no question of mala fide as well as acting without jurisdiction, as presently Caretaker setup is in field, and the transfer of the petitioner on the present post was made just prior to the end of the tenure of the erstwhile Government, which at the very first instance, ought not to have been done, whereas, now Election Commission has issued a Notification dated 20.6.2018 for transfer of all Deputy Commissioners in the entire Province, and the restraining orders passed by this Court is hampering issuance of Notification, of a new officer as Deputy Commissioner, Tando Muhanimad Khan. According to him the Notification which has been impugned, whereby, Respondent No,3 has been posted in place of petitioner no more remains valid or in dispute as a new officer has already been nominated to be posted, once the restraining orders are vacated. As to maintainability of instant petition he submits that petitioner is admittedly a Civil Servant and his remedy lies before the Service Tribunal and in support learned A.A.G has relied upon cases reported as Peer Muhammad v. Government of Balochistan (2007 SCMR 54), Altaf Hussain v. Province of Sindh [2012 PLC (C. S.) 4891 and Niazamuddin v. Government of Sindh [2014 PLC (C.S.) 914].
4. On the last date of hearing, we had also issued notice to the Election Commission and today, learned Counsel appearing on behalf of the Election Commission has adopted the arguments of learned A.A.G.
5. Learned Counsel for respondent No,3 (posted in place of petitioner through impugned order) submits that frequent transfers. of Civil Servants are made on and off and respondent No,3 was also transferred on numerous occasions, therefore, it is no ground. He further submits that petitioner is interested in present posting as he is domiciled in Tando Muhammad Khan and therefore, he intends to hold this post for his own benefit.
6. We have heard all the learned Counsel and perused the record. Admittedly, petitioner is a Civil Servant and is governed by the Sindh Civil Servants Act, 1973 as well as Rules framed thereunder.
7. Section 10 of the Sindh Civil Servants Act, 1973 provides for posting and transfers and reads as under:- "10. Posting and transfers.---Every Civil Servant shall be liable to serve anywhere within or outside the Province to any post under Government, Federal Government, or any Provincial Government or local authority, or corporation or body set up or established by any such Government.
8. Provided that nothing contained in this section shall apply to a Civil Servant recruited specifically to serve in a particular area or region: Provided further, that, where a Civil Servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
9. Perusal of the aforesaid provision reflects that every Civil Servant shall be liable to serve anywhere within or outside the Province to any post under Government, Federal Government, or any Provincial Government or local authority, as the case may be. There isn't any concept of a vested right in posting of a Civil Servant. It is also provided under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 that the services of Civil Servants are to be regulated through Administrative Courts and Tribunals and matter regarding terms and conditions of the persons who are or have been in service of Pakistan including disciplinary matters are to be dealt with by the tribunals. The Honourable Supreme Court in the case reported as Ali Azhar Khan Baloch v.
10. Province of Sindh, (2015 SCMR 456) while dealing with the issue of absorption, out of tufn promotion, and cadre postings, has been pleased to deal with the issue of maintainability of a Constitutional Petition of a Civil Servant before High Court and at Para-150 such findings have been recorded, which reads as under:- "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." The Honourable Supreme Court in the aforesaid judgment has clearly and specifically held that 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 holding 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, 1975. The Honourable Supreme Court in the aforesaid judgment has taken strong exception to the entertaining of petitions and civil suits by High Court of Sindh in such matters and clear directions have been issued in this regard. Similarly, in the case reported as Aitaf Hussain Supra, a learned Division Bench of this Court has also dealt with this issue that transfer and posting is a matter of terms and conditions and could not be challenged under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The relevant finding at pg: 491 is as under:- "Admittedly, the petitioner is a Civil Servant and transfer is a term and condition of employee of every Civil Servant. The Honourable Supreme Court in Nazir Hussain v. N.W.F.P. (1992 SCMR 1843) and Rukhsana Ijaz v. Secretary, Education (1997 SCMR 167) has held that transfer is a term and condition of the employment and it can only be challenged before Service Tribunal and jurisdiction of High Court under Article 199 of the Constitution was barred. Consequently, this petition, being not maintainable, is dismissed in limine. Listed application is disposed of." As to the ground that in view of the judgment commonly known as Anita Turab's case a Civil Servant cannot be transferred until the tenure of the posting has been completed, we may observe that firstly the Honourable Supreme Court has not held that it is to be applied in each and every case, whereas, an exception is already provided therein. It would be of relevance to refer to Paras 22(ii) and 23 which is final conclusion of the judgment and reads as under;
22. The principles of law enunciated hereinabove can be summarized as under:--
(i) ...................................................................
(ii) Tenure, posting and transfer: When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and cannot be varied, except for compelling reasons, which should be recorded in writing and are judicially reviewable.
23. We are fully conscious that the aforesaid matters relate to decision making and administration of the machinery of the State. As such the responsibility of deciding as to suitability of an appointment, posting or transfer falls primarily on the executive branch of the State which comprises of both political executive and civil servants. Courts ordinarily will not interfere in the functioning of the executive as long as it adheres to the law and established norms and acts in furtherance of its fiduciary responsibility. However, while hearing this petition we have recognized the need for ensuring that decision making in relation to tenure, appointments, promotions and transfers remains rule based and is not susceptible to arbitrariness or absolute and unfettered discretion.
11. On a careful perusal of the above findings, it is clear that the contention of the petitioners Counsel is completely misconceived and based on a wrong and fallacious perception and understanding of the said judgment. Enough room has been provided for the Government to act in accordance with law as well in view of the prevailing situation and given facts. What more compelling reasons could be available than a Caretaker Set-up transferring a Civil Servant appointed just two days before end of its tenure by the erstwhile Government. Such finding is not absolute in terms and in our considered view, at least in the present facts and circumstances, it has no applicability so as to claim shelter under the same for a tenure posting of 3 years as contended.
12. A learned Division Bench of this Court while dealing with the issue of maintainability as well as frequent transfer and posting before end of tenure of 3 years has repelled such contention in the case reported as Nizamuddin (Supra) has been pleased to hold as under:- "Perusal of the aforesaid provision reveal that a Civil Servant can be transferred/posted by the competent authority to meet the administrative exigency, whereas, a Civil Servant cannot raise any objection in this regard. However, if a Civil Servant is aggrieved by such transfer/posting then such dispute, which relates to terms and conditions of the employment, can be agitated before the forums provided under the Statute upto Services Tribunal, and not by way of filing a Constitutional Petition under Article 199 of the Constitution of Pakistan, 1973. Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 provides for creation of an independent forum i,e, Services Tribunal for resolution of disputes by Civil Servant and prohibits filing of Constitutional Petition as such controversy involves determination of disputed facts and the mala fide or otherwise which requires evidence." Notwithstanding the above observation, it is also pertinent to observe that presently there is a Caretaker setup in existence and facts of this case are even otherwise peculiar in nature as the Elected Government is no more, and it is a Caretaker Set-up under the Constitution which governs the Province and is running the affairs for conducting free and fair elections, and in consultation with the Election Commission, regulating the transfer and postings of Civil Servants. Therefore, even otherwise we do not see that the dicta laid down by the Honourable Supreme Court in the case of Anita Turab has any relevancy stricto sensu in the given facts. It is not in dispute that the present posting of the petitioner of which enforcement is being sought, was made by the outgoing Government just two days before the end of their tenure, and respondent No,3 was posted in his place, which itself reflects mala fides and exercise of authority and power for ulterior motive, as normally, restrain ought to have been shown at such point of time. Now D the Election Commission has already posted all new Officers in view of the general transfers of the Civil Servants within the province and so also in the entire country, including all Deputy Commissioners. In these circumstances, the restriction of tenure posting is not a matter which could be considered. In view of hereinabove facts and circumstances, firstly we are of the view that instant petition is not maintainable before this Court being barred under Article 212 of the Constitution, and the petitioner has an alternate remedy, whereas, even otherwise on merits in the given facts and circumstances of this case, the impugned Notification as well as Notification whereby the petitioner was posted as Deputy Commissioner, Tando Muhammad Khan, have lost its efficacy in view of the fact that now the transfers and postings are to regulated by the Election Commission and therefore, instant petition being Misconceived and frivolous in nature is hereby dismissed along with listed application.
13. Election Commission is at liberty to issue a new Notification for posting of a new officer as Deputy Commissioner accordingly.