SADIO ALI, J.- Through the instant writ petition, the petitioner has prayed as under; "On acceptance of the instant Writ Petition, impugned notification bearing No. 1594-99/Notification dated 30.04.2025 issued by the respondents and consequently transfer of the petitioner from Benazir Butto Shaheed Memorial Teaching Hospital, Abbottabad to Directorate General Health Services, Khyber Pakhtunkhwa, Peshawar and appointment/transfer of the respondent No. 5 at the place of the petitioner may please be declared as wrong, illegal, against the law and facts, arbitrary, fanciful, perverse, against the fundamental rights of the petitioner hence being unconstitutional, be struck down and the notification bearing No. 31532-40/Notification dated 13.12.2023 may please be restored and the services of the petitioner may graciously be re- instated/retained at Benazir Bhutto Shaheed Hospital, Abbottabad or any other writ, order or relief as this Honourable Court deems fit and appropriate in the circumstances of the case, may also be issued/passed. "
2. In essence, the petitioner is aggrieved from his transfer. Learned counsel for the petitioner admitted the factual position that the impugned order is with respect to terms and conditions of service of the petitioner, however, the main grievance of the petitioner in the instant petition is that the respondents, while issuing the impugned transfer order, have violated clause-I, IV and XIII of the Transfer/posting Policy of the Government of Khyber Pakhtunkhwa, as the petitioner has been transferred prematurely from his current post.
3. Arguments of the learned counsel for the petitioner were heard in considerable detail and the record perused.
4. The perusal of the available record reveals that the matter essentially pertains to the transfer of the petitioner, who is admittedly a civil servant and the prayer set out in the petition pertains to terms and condition of her 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 everywhere 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 he less favourable than those to which he would have been entitled if he had not been so required to serve."
5. however, the civil servants have not been left remediless by the legislature, rather a proper forum for adjudication of such issues, has been constituted by the Government i.e. the Service Tribunal, where the aggrieVed civil servants could seek their desire remedies. Despite a clear bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, the civil servants try to approach other forums, particularly this Court, in its constitutional jurisdiction. In the case of "Ali Azhar Baloch and others vs. Province of Sindh and others" reported as 2015 SCMR 456), it was held by the apex Court that: "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."
Similarly, in the case of "Chief Secretary Government of Punjab, Lahore and others Vs. Ms. Shamim Usman" (2021 SCMR 1390), the honourable Supreme Court of Pakistan was pleased to caution the High Courts not to transgress the bar on its jurisdiction under Article 212 of the constitution, by holding; "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 the such constitutional limitation would render the order of the High Court void and illegal."
In the case of "Federation of Pakistan through Secretary Establishment v. M. Labib ur Rehman and others, (2021 SCMR 1554)", the Supreme Court ruled: "It is now established that any matter relating to terms and conditions of service is within the domain of administrative courts and tribunals established under Article 212 and even if the element of mala fides, ultra vices or coram non judice is pressed into, the same can be entertained and decided by the said courts in its jurisdiction. There is no denial to this fact that the bare reading of the said Article is of significant importance especially with reference to its exclusive jurisdiction to entertain matters relating to terms and conditions of service. Hence, in all eventualities any petition relating to terms and conditions of service is to be dealt with by administrative courts and tribunals specifically established for its adjudication in pursuance of Article 212 of the Constitution. As a general principle, the framers of the Constitution while inserting the said provision have ousted the jurisdiction of other courts including the High Court under Article 199 of the Constitution. There are certain exceptions depending upon the facts and circumstances on case to case basis because of the reason that the law is not static and the same is growing day by day, therefore, it cannot be said with certainty that in all eventualities the service issues cannot be called in question in Constitutional jurisdiction before the High Court. The Constitutional jurisdiction is always considered as extraordinary, which is to be exercised in extraordinary circumstances if so warranted, hence, the Constitutional jurisdiction cannot be curtailed stricto sensu leaving some room for its application where it is so demanding for safe administration of justice and fair play. The 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 is available under the statute for the redressal of the grievances of the litigants. Hence, the superior courts should be reluctant to frustrate the statutory remedies while exercising their Constitutional jurisdiction, which otherwise has to be exercised sparingly while enabling to advance the legislative intent."
Reference may also be made to the cases of "Peer Muhammad vs. Government of Baluchistan through Chief Secretary and others, (2007 SCMR 54) and Kalimullah Kakar and others v.
Provincial Police Officer, Balochistan and others, (2021 SCMR 1168)". In a very recent judgment, in the case of "Muhammad Hassanullah (OMG/B-18), Acting Additional Secretary, Health Department Balochistan V. Chief Secretary, Government of Balochistan, Quetta and another"
(2025 SCMR 134), the apex Court has held that Article 212 of the Constitution, beginning with a non obstante clause, grants exclusive jurisdiction to administrative tribunals over matters relating to the terms and conditions of service of civil servants, including transfers and disciplinary actions.
This jurisdiction overrides that of High Courts under Article 199, even in cases alleging mala fide, lack of jurisdiction, or violation of fundamental rights. The Tribunals Act, 1974 provides a complete mechanism for redress of such grievances. Therefore, civil servants must approach service tribunals, not High Courts, for service-related disputes.
6. Since the matter essentially pertains to the terms and conditions of service of the petitioner, therefore, this Court does not deem it appropriate to take cognizance of the matter. Accordingly, this petition stands dismissed in limine. However, we expect from the respondents that they would follow the Transfer/ posting policy of the Government of Khyber Pakhtunkhwa, in its letter and spirit.