DR. KFIURSHID IQBAL,
1. Dr. Mehmood Jan (Petitioner) is an employee of the provincial Health Department (respondent- Department). Presently, he has been working as the District Health Officer (DHO) of Dera Ismail Khan (DIP. The respondent-Department has proposed his transfer from his present position. Owing to the impending general elections, no posting and transfer in public department could be ordered. The respondent-Department sought the issuance of a No Objection Certificate (NOC) from the Provincial Election Commissioner of the Khyber Pakhtunkhwa (respondent # 4) vide a letter (bearing Endst No. SOH/ (E-V)/2-2/2023/NOC/ECP of 10/03/2023; to be referred as "the impugned proposal").
2. The petitioner is aggrieved of his proposed transfer. He has moved this petition under article 199 of the constitution in which he has called into question the impugned proposal. His contention, as stated in his petition, is that he has served as Chief Medical Officer in the DHQ of District Karak, for a long time. He was transferred from Karak by a Notification dated 12/05/2022. Thereafter, he has been performing his duties as the DHO in DEK, his present position. He asserts that his tenure of posting in his present position has not been completed. His proposed transfer is prompted by what he calls "political victimization and mala fide on the part of the respondent"-Department. He further asserts that there is no complaint against him. He has prayed before us to declare the impugned proposal as illegal, unjustified and without lawful authority. He has also prayed for any other relief which we may deem appropriate in the attending circumstances of his case.
3. We have heard Mr. Waqar Alam, learned counsel for the petitioner and Malik Muhammad Asad, Addl. Advocate General at length and perused the record available before us with their valuable assistance.
4. At the very inception, the Addl. AG informed us that the requisite NOC has been issued which fact has relegated this petition as infructuous. He produced a copy of a letter of the office of the respondent No. 4, placed on the record. Even then learned counsel urged us to hear him. We proceeded: heard him and the Addl. AG.
5. A preliminary objection the Addl. AG raised is that the petition is not maintainable owing to the bar laid down in article 212 of the constitution. He explained that the petitioner is a civil servant, and the proposed transfer relates to the terms and conditions of the petitioner's service. He further explained that as a civil servant, the petitioner has to approach his Departmental Authority and then to the Service Tribunal.
6. Mr. Muhammad Waqar Alam, counsel for the petitioner, restated the averments of the petition.
He added that the impugned proposal seeks to prematurely post out the petitioner which is, as such, tainted with mala fide. He further added that the petitioner has already served for a long time in District Karak; his transfer is proposed prematurely; and his long term tenure in Karak has been ignored. He also stated that the petitioner has an unblemished record of service. He endeavoured to convince us that the impugned proposal is apparently unusual which is suggestive of mala fide on the part of the respondent-Department.
7. There could be no escaping from the fact that the petitioner is a civil servant. There is also no doubt at all that the impugned proposal of his transfer relates to the terms and conditions of his service. Section 10 of the Civil Servants Act, 1973 provides that a civil servant can be transferred anywhere in the province. The provision reads as under:- "10. Posting and transfers. -- every civil servant shall be liable to serve anywhere within or outside the province in any post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: 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"
8. The law, however, doesn't put a clog on a civil servant to question a transfer order made or, as in the present case, proposed, on the ground of mala fide, such as, political victimization. The law, then, provides the Service Tribunal as the forum before which a civil servant can vindicate his grievance. It needs not to be mentioned that the Service Tribunal is a constitutional forum established under Article 212, having exclusive jurisdiction in matters relating to the terms and conditions of a person who is or has been in the service of Pakistan. Despite this express constitutional barrier, civil servants do seek their remedy before other courts, notably the High Court and the Supreme Court. The higher courts thus have dealt with the question in numerous cases which have built vast jurisprudence on issue of jurisdictional competency of the courts. We deem it pertinent that reference to a few cases may be sufficient for the purpose of proper understanding of the issue in hand. In 2007 SCMR 54 titled Peer Muhammad vs. Government of Baluchistan through Chief Secretary and others, the Supreme Court held: It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder.
The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all .other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters.
9. The same question was considered in Civil Review Petition No. 193 of 2023 etc. titled "Ali Azhar Khan Baloch and others vs. Province of Since and others" (2015 SCMR 456) in the following words: "Article 212 of the Constitution of 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 Tribunal."
10. The case titled as "Chief Secretary Government of Punjab, Lahore and others vs. Ms. Shamim Usman" may be termed as the latest, having been decided in the year 2021 (2021 SCAM 1390). The court ruled that:- "The High court had no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which could be adjudicated upon by the Service Tribunal.
The High court as a constitutional court should always be mindful of the jurisdictional exclusion contained under Article 212 of the Constitution. Any transgression of such constitutional limitation would render the order of the High court void and illegal.
11. Section 4 of the Khyber Pakhtunkhwa Services Tribunal, 1974 provides that any order affecting, in any manner, the terms and conditions of a civil servant can be challenged before the Service Tribunal. The grounds agitated by the petitioner in the writ petition as well as advanced by his counsel during arguments with full force can be well agitated and appreciated before the Service Tribunal and will be dealt with according to law.
12. We have gone through the case law referred to above and relied upon by learned counsel for the petitioner and are firm in our view to hold that the same does not favour and support the case of the petitioner.
13. An adequate and efficacious remedy is available to the petitioner under the law in the form of filing service/departmental appeal and then the Service Tribunal for redress of his grievance. It follows that this petition is not maintainable. In this behalf reliance can be placed on the judgment reported as "Messrs OPI Gas (Private) Limited v. Government Holding (Pvt.) Limited and others"
(2021 MLD 1916 Islamabad), wherein it was held that "when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the constitutional jurisdiction of the High Court for the issuance of a writ". Further reliance can also be placed on the judgment reported as Messrs Gandapur Construction Company v. Government of Khyber Pakhtunkhwa through Secretary (C & W) and 3 others" (2014 FIR 399) wherein it was observed as under:- "when the agreement itself provides a forum for resolving a dispute among the parties to the suit then without availing such forum how a disputed question of fact can be placed before the High Court for its resolution. A High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 may issue a writ only when facts are admitted and when there is no alternate remedy to the aggrieved person for resolution of this grievance. Here in this case either facts of the case are admitted nor the petitioner is divested of alternate forum for the resolution of his grievance as the agreement itself provides him a forum to settle his dispute with the respondent/department. So it is held that in view of clause 25 of the agreement, the instant writ petition is not maintainable"
14. In this behalf reference may also be made to the case reported as "Federation of Pakistan through Secretary Establishment Islamabad v. M. Y. Labib ur Rehman and others" (2021 SCMR 1554) wherein it was held that: "----Arts. 199 & 212---Matter relating to terms and conditions of service---Exclusive jurisdiction of administrative tribunals and ouster of jurisdiction of High Court---Scope---Any petition relating to terms and conditions of service was to be dealt with by administrative courts and tribunals specifically established for its adjudication in pursuance of Art. 212 of the Constitution---As a general principle, the framers of the Constitution while inserting the said provision had ousted the jurisdiction of other courts including the High Court under Art. 199 of the Constitution---However there were certain exceptions depending upon the facts and circumstances of each case--- Constitutional jurisdiction was always considered as extraordinary, which was to be exercised in extraordinary circumstances, if so warranted, hence, the Constitutional jurisdiction could not be curtailed stricto sensu, leaving some room for its application where safe administration of justice and fair play was required---Superior courts while exercising Constitutional jurisdiction must satisfy themselves that they may not interfere or infringe the jurisdiction of any other statutory forum in any manner when an equally efficacious/adequate remedy was available under the statute for the redressal of the grievances of the litigants."
15. Further reliance can also be placed on the judgment reported as Kalimullah Kakar and others v. Provincial Police Officer, Balochistan and others" (2021 SCMR 1168) wherein it was observed as under:- "----Arts. 199 & 212(3)---Balochistan Service Tribunals Act (V of 1974), S. 3(2)---Issue of joint seniority list of Deputy Superintendents of Police ('DSPs')---Matter relating to the terms and conditions of service---Constitutional jurisdiction of High Court---Scope---Article 212(2) of the Constitution specifically placed an embargo on all other courts except Service Tribunal to grant an injunction, make any order or 'entertain' any proceedings in respect of any matter relating to the terms and conditions of service even if they were mala fide, ultra vires or coram non judice---Word 'entertain' used in Art. 212(2) of the Constitution was of significant importance; it meant that any petition or proceeding relating to the terms and conditions of service should not even be entertained by the High Court in its constitutional jurisdiction under Art. 199 of the Constitution--- Respondents being employees of Provincial Police Force were civil servants and the matter pertaining to issuance of joint seniority lists specifically related to their terms and conditions of service, which particularly rested within the jurisdiction of Provincial Service Tribunal---Filing of the Constitutional petitions before the High Court, at a time when the Provincial Service Tribunal was functional, was against the Constitutional mandate---Constitutional petitions filed by the respondents were not maintainable before the High Court---Appeal was allowed."
16. It is also by now settled that when law provides a remedy to another authority fully competent to give relief, any indulgence to the contrary by High Court is likely to produce a sense of distrust in those authorities and to cause an underserved reflection on their integrity and competency and may defeat legislative intent. If the remedy sought for, is in substance a remedy, which is available under the ordinary law, then the resort is to the proper forum, and not the extraordinary remedy, provided by Article 199 of the Constitution.
17. For the reasons stated-above, in view of the bar contained in Article 212 (2) of the Constitution of Islamic Republic of Pakistan, 1973, this writ petition being not maintainable is hereby dismissed.
However, the petitioner would be at liberty to approach the proper forum, if so advised.