MUHAMMAD SHAN GUL, J. The petitioner is a Civil servant and wants this Court to restrain the respondents from transferring her from her present place of posting in District Vehari to another post in the same District.
2. The learned counsel for the petitioner submits that an internal policy dated 06.03.2019 appended as (annex-E) with this petition has been violated while dealing with the petitioner and therefore in terms of the law laid down by the Hon'ble Supreme Court of Pakistan in `Zahid Akhtar's case' (PLD 1995 SC 530) and 'Peer Sabir Shah' case (PLD 1994 SC 738) this Court has the requisite jurisdiction to entertain this matter.
3. The learned Assistant Advocate General at the outset has questioned the maintainability of this petition since according to him the bar of Article 212 confronts the petitioners. The' learned Assistant Advocate General further submits that the even vires of a notification and the even vires of service rules and regulations can very well be challenged before the Administrative Tribunal constituted in terms of Article 212 of the Constitution. Adds that transfer is neither a punishment nor a penalty, rather an incidence of service and that the Administrative Tribunal indeed has exclusive jurisdiction to entertain a matter challenging a transfer order. He has placed reliance on the cases reported as "I. A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others" (1991 SCMR 1041) and "Iqan Ahmed Khurram v. Government of Pakistan and others" (PLD 1980 SC 153). Even the recent case on the subject i.e. "Ali Azhar Khan.
Baloch and others v. Province of Sindh and others" (2015 SCMR 456), follows this trite law.
4. Heard. Record perused.
5. It has been held by the Hon'ble Supreme Court of Pakistan that even if a question of fundamental rights including discrimination is involved in the matter, even if a challenge is laid to statutory rules adversely affecting civil` servants, even if the order has been passed by an incompetent authority or even where an order suffers from malice and has been passed in bad faith. and even when an authority not recognized by the governing law has passed an order affecting the terms and conditions of a civil servant, the only forum available in all instances listed above as also in other instances except when a person is seeking appointment or up gradation in civil service or when question of fitness as opposed to eligibility of a civil servant to be promoted to a particular post is involved, is that of the Service Tribunal constituted under Article 212 of the Constitution. Reliance with advantage is placed on the cases of "Iqan Ahmed Khurram v. Government of Pakistan and others" (PLD 1980 SC 153), "Khalid Mahmood Wattoo v. Government of Punjab" (1998 SCMR 2280), "Muzaffar Hussain v. The Superintendent of Police, District Sialkot" (2002 PLC (C. S.) 442) and "Ali Azhar Khan Baloch and others v. Province of Sindh and others" (2015 SCMR 456).
6. Furthermore, it is also trite that there is no particular shape or form of an order that can be, challenged before the Service Tribunal and even parawise comments controverting the stance of a petitioner civil servant suffice to be treated as a final order. Kindly see "Sabir Zameer Siddiqui v.
Abdul Malik" (PLD 1991 SC 226) in particular and "Abdul Bari,. v. Government of Pakistan and 2 others" (PLD 1981 Karachi 290) and "Khalil ur Rehman v. Government of Pakistan" (PLD 1981 Karachi 750) in general. In the case of "Dr. Ghazanffarullah and 2 others v. Secretary Health, Government of the Punjab, Lahore and 6 others" (2010 PLC (C.S.) 51), this Court has noted that the filing of an appeal or a representation under Section 21 of the Punjab Civil Servants 'Act is itself initiation of the remedy under the Punjab Service Tribunal Act, 1974 which culminates, after the statutory prescription of 90 days in the case of no decision on the representation and earlier in the case of a decision thereon, into the right to file an appeal. and, therefore, the tribunal cannot be by-passed. So much for the insistence of the counsel for the petitioner on the petitioner having no remedy for a period of 90 days.
7. It may also be noted that while most of the other ouster clauses contained in the Constitution of Islamic Republic of Pakistan, 1973 have been judicially pierced and read down with the latest example being that of Article 211 of the Constitution in the case of "Chief. Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others" (PLD 2010 SC 61), the ouster contemplated by Article 212 of the Constitution has ordinarily never been read down by the Superior Judiciary so as to allow civil servants to have recourse to Constitutional jurisdiction in the matter of terms and conditions of their service...Stray incidents may have occurred such as the one reported as "Azhar Ahmad Khan and 8' others v. Chief Secretary Government of the Punjab, Lahore and 12 others" (2010 PLC (C.S.) 374) but the Hon'ble Supreme Court of Pakistan has never approved such a course of action and a perusal of the judgment reported as "Ali Azhar Khan Baloch and others v. Province of Sindh and others" (2015 SCMR 456), clearly reveals that the attempt by the Sindh High Court to adjudicate matters involving terms and conditions of service of a civil servant was deprecated and not approved by the Hon'ble Supreme Court of Pakistan. In this case, the Sindh High Court entertained Constitutional petitions as also civil suits rooted in terms and conditions of a civil servant and Hon'ble Supreme Court of Pakistan conspicuously disapproved such an exercise.
8. The judicially acknowledged grounds to read down an ouster clause are not applicable in the case of Article 212 of the Constitution. Therefore, the grounds that found favour with the House of Lords in the now seminal case of (Anisminic v. FCC 1968 APP.LR 12) do not and cannot apply in the case of the ouster contemplated by Article 212 of the Constitution. In fact, our own Hon'ble Supreme Court of Pakistan in "Syed Arshad Ali and others v. Pakistan Telecommunication Company Ltd. and others" (2008 SCMR 314) has acknowledged this:- "It is well-recognized that if a right has been conferred by a statute and a complete mechanism has been provided for enforcement thereof, there could hardly be any occasion to invoke the applicability of fundamental rights. The jurisdiction of the High Court will be patently barred under Article 212 of the Constitution of Islamic Republic of Pakistan, in view of the specific forum provided for redressal of the grievances of the petitioners, even if the order proposed to be challenged may have been passed in whatsoever circumstances viz. mala fide, coram non judice or without jurisdiction. This principle has been laid down in the case of I.A. Sharwani and others v.
Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041. Besides it is also well-settled proposition of law that writ jurisdiction could not be exercised where equally efficacious remedy is available."
9. In "Peer Muhammad v. Government of Balochistan through Chief Secretary and others" (2007 SCMR 54) the Hon'ble Supreme Court of Pakistan reiterated the established position of law and which is that the bar contained in Article 212 of the Constitution ousts jurisdiction of all other Courts even if the order under challenge is without jurisdiction or mala fide. It was acknowledged by the Hon'ble Supreme Court of Pakistan in this case that conventional and acknowledged grounds generally and ordinarily accepted to read down and penetrate constitutional and statutory ousters stood eclipsed when confronted with the ouster contained in Article 212 of the Constitution.
10. Therefore, any argument raised on the basis of the grounds of mala fide, want of jurisdiction or coram non judice does not ordinarily succeed in the case of the ouster contemplated by Article 212.
While in the case of a sub-constitutional ouster, a Superior Court zealously guards its jurisdiction and is, therefore, willing to exercise judicial power quite readily, but in the case of this Constitutional ouster there is little or no room for sweeping it aside. Where such an ouster is spelt out from the Constitution itself, very strict rules for crossing such an ouster, if at all, G probably exist and have been acknowledged between the lines in "Abdul Bari v. Government of Pakistan and 2 others"
(PLD 1981 Karachi 290). Therefore, once jurisdiction is barred by a Constitutional ouster, it would become absolute and any departure or deviation therefrom is not permissible under the law and the Constitution, ceteris paribus.
I In the case of "I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others" (1991 SCMR 1041) a five member bench of the Hon'ble Supreme Court of Pakistan has also, while interpreting to Article 212 of the Constitution, ruled as follows at Paragraph No.6:- "A perusal of the above-quoted Article 212 of the Constitution indicates that under clause (1), the appropriate Legislature has been empowered to enact for the establishment of one or more Administrative Courts or Tribunals for exercising exclusive jurisdiction in respect of the matters referred to in sub-clauses (a), (b) and (c) of the above clause, which inter alia include the matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan including in respect of disciplinary matters. It may further be notices that clause (2) of the above Article provides that notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established in terms of 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 or Tribunal extends. It also provides the abatement of the pending proceedings in respect of such matters except those appeals, which were then pending in this Court."
12. There is a rationale behind not reading down the ouster contemplated by Article 212 of the Constitution. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is subject to many conditions and riders. The Article itself acknowledges that it is subject to the Constitution. Therefore, all Articles of the Constitution appearing before and after Article 199 have a bearing on the remedies afforded by Article 199. On the other hand, Article 212 of the Constitution, starts with a non obstante clause and, therefore, takes precedence over Article 199 and similarly phrased other Articles of the Constitution, and therefore, has to be construed accordingly. Moreover, a complete remedial mechanism before a forum i.e. the Tribunal, which is a Court for all intent and purposes [(see "Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others"
(PLD 2013 SC 501)) has been provided by Article 212 of the Constitution. The Article itself mandates for the setting up of a Tribunal with attributes of a Court to hear appeals. Perhaps, this is the reason why the ouster contemplated by Article 212 remains impregnable and which ouster cannot be pierced come what may.
13. Article 212 of the Constitution being a non obstante article prevails over Article 199 since no Court has the jurisdiction to exercise judicial power to grant an injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. It is, therefore, that this Court has no jurisdiction to even entertain a matter that stands barred under Article 212 of the Constitution. In fact, the remedy afforded by Article 199 cannot be triggered owing to this jurisdictional bar. The words 'jurisdiction to entertain' clearly mean that since there is no jurisdiction to even entertain no question of exercise of the consequent judicial power arises.
14. Article 212 of the Constitution opening with a non obstante clause expressly bars all Courts including a High Court to entertain or take cognizance of matters that eminently fall within the jurisdiction of the Administrative Tribunal. The above principles have been very lucidly explained in judgments reported as "Abdul Bari v. Government of Pakistan and 2 others" (PLD 1981 Karachi 290) and "Mian Amanul Mulk v. N. W. F. P. through Chief Secretary" (PLD 1981 Peshawar 1).
Moreover, in "Muhammad Aslam Bajwa v. Federation of Pakistan" (PLD 1974 Lahore 545), it has been observed that exclusionary provisions of Article 212 take within their sweep all preceding provisions of the Constitution and which include Article 199 of the Constitution. In fact, the non obstante clause indicates clearly that Article 212 stands on a higher constitutional pedestal than Article 199 and that its provisions are not subject to or conditioned upon those of Article 199 of the Constitution. The intention of the legislature in granting primacy to Article 212 is manifest.
15. In this view of the matter, it is clear that there is hardly any way that the impregnable ouster contemplated by Article 212 can be penetrated. The grounds that often find favour with the High Court and compel it to assume jurisdiction and exercise judicial power even in the face of a categorical ouster' clause are not embraced when taken in the context of the ouster contemplated by Article 212 of the Constitution.
The twin reasons of a constitutional ouster and the availability of a Court like forum are the dominant considerations for the development of such jurisprudence and, therefore, to this day, the law laid down in the nascent days of the introduction of Article 212 i.e. "Abdul Bari v. Government of Pakistan and 2 others" (PLD 1981 Karachi 290) and "Mian Amanul Mulk v. N. W.F.P. through Chief Secretary" (PLD 1981 Peshawar 1) still holds the field and is followed without demur.
16. Both judgments relied upon by the petitioner are distinguishable on facts as also on account of having been handed down in different contexts. The Order of the High Court dismissing a Constitutional Petition on account of the bar of the Article 212 was upheld by the Hon'ble Supreme Court of Pakistan in the case of Zahid Akhtar' (PLD 1995 PLC (C.S.) 530) while, in the case of 'Peer Sabir Shah' (PLD 1994 SC 738) the Hon'ble Supreme Court of Pakistan alluded to most of the other ouster clauses contained in the constitution, but nothing whatsoever was said with respect to Article 212 of the Constitution and the ouster contemplated by it. Therefore, both these judgments are of no help to the petitioner.
17. This petition is eminently not maintainable and is, therefore, dismissed.