MALIK MUHAMMAD AWAIS KHALID, J. The instant constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) carries the following prayer: "That the instant Writ Petition may kindly be accepted; the impugned Transfer Order No.LSTO/SKP/HSS-3605/2024 dated 22.09.2024 passed by respondent No.1, may please be set aside, in the interest of justice, equity and fair play.
It is further prayed that till the final disposal of this writ petition, the operation of the impugned Transfer Order No. LSTO/SKP/HSS-3605/2024 dated 22.09.2024 passed by respondent No.1, may kindly be suspended and the respondents may graciously be restrained from got relinquishing the charge from the petitioner as SST (Physics - Math) / Headmistress, Government Girls Elementary School, Roranwali, Mananwala, Tehsil and District Sheikhupura.
Any other relief which this Honourable Court deems fit and appropriate may also be rewarded. whereby the petitioner challenges the her Transfer Order No.LSTO/SKP/HSS-3605/2024 dated 22.09.2024 (the Impugned Order).
2. Essential facts giving rise to file the instant writ petition are that petitioner was appointed as Secondary School Educator (SSE) Physics-Math vide order No.12/PA/7123 dated 26.09.2012 and posted at Government Girls Community Model High School, Mandiala, Chak No.20/R.B., Tehsil Safdarabad, District Sheikhupura and her services were regularized vide order No.16/PA/2010 dated 17.03.2016 passed by Executive District Officer (Edu) Sheikhupura. Afterward she was transferred to Government Girls Elementary School Roranwali, Mananwala, Tehsil & District Sheikhupura, vide transfer order No.18/PA-8234 dated 19.11.2018 and assumed the charge in the said school where statedly she is still performing her duties as Headmistress. On 22.09.2024, vide impugned Transfer Order No. LSTO/SKP/HSS-3605/2024, petitioner got transferred from her present place of posting to Govt. Girls High School, Rasulpur Jattan, Tehsil Safdarabad, District Sheikhupura and through impugned transfer order dated 22.09.2024 respondent No.7/SSE (Science) has also been transferred from Govt. Girls High School Rasulpur Jattan, Tehsil Safdarabad, District Sheikhupura to Government Girls Higher Secondary School, Mananwala and also auto relieved/ auto joined the services of petitioner and respondent No.7 on 29.10.2024.
3. Learned counsel for the petitioner argued that the impugned order is self-contradictory as a message on School Information System (SIS) was circulated on 29.09.2024 that as per direction of competent authority no teacher is allowed to relieve/ join upon orders of Rationalization issue through School Information System (SIS) in recent E-Transfer Round, 2024. The impugned order is not sustainable in the eyes of law and liable to be set aside. Adding further, the petitioner is still performing duty as Head mistress Govt. Girls Elementary School, Roranwali, Mananwala, District Sheikhupura and approached the competent authority but all in vain. The petitioner does not have longest tenure at her present place of posting rather there is another teacher, namely, Sidra Anwar SSE (IT) who having longest tenure in the said school than the petitioner being posted there since 20.07.2016, therefore, impugned transfer order is clear violation of the Transfer Policy, 2024.
4. Conversely, learned Law Officer raised objection regarding the maintainability of this constitutional petition under Article 199 and the jurisdiction of this Court to decide the validity of the impugned order as petitioner is a civil servant.
5. Arguments heard. Record perused.
6. On the court's query learned counsel for the petitioner candidly conceded that the petitioner is a civil servant.
The impugned order is a transfer of petitioner whereas transfer is the part of terms and conditions by virtue of Sec.3 and Sec.9 of the Punjab Civil Servant Act, 1974 (the Act, 1974). The provisions dealing are reproduced as below: Sec.3 Terms and conditions.--The terms and conditions of service of a civil servant shall be as provided in this Act and the rules.
Sec.9 Postings and transfers.- Every civil servant shall be 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.
Being a civil servant, the petitioner at first avail the departmental remedy, and it is the duty of public functionaries to decide the grievance of their subordinate after application of mind with cogent reasons within reasonable time. In this regard reference is made to following judgment of Apex Court Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others Vs. Farheen Rashid (2011 SCMR 1) :--- "After addition of section 24-A in the General Clauses Act, it is the duty and obligation of the Public functionaries to decide the cases of their subordinates after application of mind with cogent reasons within reasonable time as law laid down by this Court is Messrs Airport Support Services's case 1998 SCMR 2268 and Aslam Warraich's case 1991 SCMR 2330.
After availing departmental recourse, the aggrieved petitioner can resort the remedy under Section 4 of the Punjab Service Tribunal Act, 1974 by filing appeal before the Tribunal. Relevant portion of section 4 of said Act, is reproduced as under: Sec.4 Appeal to Tribunals.--(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is latter prefer an appeal to the Tribunal-- This aspect has been dealt by August Supreme Court of Pakistan in case titled Muhammad Hassanullah (OMG/B18), Acting Additional Secretary, Health Department, Balochistan Vs. Chief Secretary, Government of Balochistan, Quetta and another [2025 PLC (C.S.) 287]. Operative part is reproduced as under: "The question before us is whether the High Court could have exercised its jurisdiction under Article 199 in the light of the bar contained in Article 212 of the Constitution.
Article 212 starts with a non obstante clause and provides that the appropriate legislature may, be the Act, provide for establishment of one or more administrative courts or tribunals, inter alia, to exercise jurisdiction in respect of matters relating to the terms and conditions of person who are or have been in the service of Pakistan, including disciplinary matters. Sub-Article (2) of Article 212 also begins with a non obstante clause and expressly provides that no court other than an administrative court or tribunal shall grant an injunction, make any order or entertain any proceedings in respect of any matter of which the jurisdiction of such administrative court or tribunal extends. The Constitution has, therefore, expressly declared that the administrative court or tribunal established pursuant to the command under Article 212 shall exercise exclusive jurisdiction in relation to the matter within its jurisdiction. The non obstante clause in Article 212 gives it an overriding effect and thus bars the jurisdiction of a High Court vested under Article 199 of the Constitution. The ouster curtails the jurisdiction of a High Court in respect of matters which fall within the ambit of the exclusive jurisdiction of an administrative court or tribunal. It is noted that in order to make a matter exclusively within the domain of the service tribunal under the Tribunals Act, and thus create a bar contemplated under Article 212, it must be shown that the grievance has been agitated by a civil servant and relates to the terms and conditions of service and does not attract the exceptions set out in clause (b) of section 4 of the Tribunals Act. The act of 1974 and the Tribunals Act provide for a comprehensive mechanism for agitating a grievance by a civil servant and specific forums have been provided for seeks remedies. The Article 212 are of such a nature that that they are attracted even if the grievance arises from an order which may involve questions of mala fide, corum non judice or having been passed without jurisdiction.
In I.A. Sherwani's case, a larger Bench of this Court has held and observed that a civil servant cannot bypass the jurisdiction of the service tribunal by adding a ground of violation of fundamental right(s). The service tribunal will have exclusive jurisdiction in a case founded on the terms and conditions of service even if it involves the question of violation of fundamental rights".
For relevant reference, Article 212 of the Constitution ibid is reproduced as under:
212. Administrative Courts and Tribunals. (1)
Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-
(a) matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under 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 and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal [;other than an appeal pending before the Supreme Court,] shall abate on such establishment]: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, [Majlis-e-Shoora (Parliament)] by law extends the provisions to such a Court or Tribunal.
7. Being a civil servant, petitioner's grievance in respect of terms and conditions of service could be adjudged by Service Tribunal under the law. The August Supreme Court of Pakistan specifically observed relating to the jurisdiction of Service Tribunal in such like matters, as reported in case titled as Chief Secretary, Government of Punjab, Lahore and others Vs. Ms. Shamim Usman (2021 SCMR 1390). Relevant extract is reproduced as under: "Jurisdiction of all other courts was ousted because of the provisions contained in Article 212 of the Constitution and orders of departmental authorities, even though without jurisdiction could be challenged only before Service Tribunal. Moreover, Service Tribunal had full jurisdiction to interfere in such like matters."
The learned Service Tribunal has ample power to decide the appeal of civil servant under the law.
Vires of this issue comes under the ambit of Service Tribunal, therefore, petitioner may avail alternate remedies available to her supra under the law. In support of above, it is pertinent to mention the case reported as Taufiq Asif and others Vs. General (Retd.) Pervez Musharraf and others (PLD 2024 Supreme Court 610) wherein August Supreme Court of Pakistan held as under: "Where an adequate remedy is available under the relevant law, this Court has strictly deprecated circumventing that remedy and invoking the writ jurisdiction of the High Court under Article 199 of the Constitution............ The doctrine of exhaustion of remedies accentuates that a litigant must not circumvent or bypass the provisions of the relevant law that provide for an adequate remedy. If a party does not choose the remedy available under the law, the writ jurisdiction of the High Court cannot be invoked and exercised in his favour."
On the strength of foregoing reasons, I find that this matter relates to the terms and conditions of a civil servant, therefore, the impugned order needs not to be interfered by this Court.
8. As a sequel of above discussion and relying on the judgments supra instant writ petition is dismissed being not maintainable.