FAZAL KARIM, J.- The question requiring determination in this appeal is the vexed question of this Court's jurisdiction under Article 199 of the Constitution in regard to the orders of the departmental authorities transferring civil servants from one place to another. The learned Judge in Chamber has held that "under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 4 of the Punjab Service Tribunals Act, 1974 and in the light of law declared by the Supreme Court, this Court has no jurisdiction to hear these cases."
2. The appellant is a school teacher and is admittedly a civil servant within the meaning of section 4 of the Punjab Service Tribunal Act, 1974. By the order of the second respondent, Deputy District Education Officer, dated 3.1.1991, she was transferred from Government Girls High School 9/14-L to Government Girls Primary School 120/13-L. It is the appellants case that the Chief Minister of the Punjab was influenced by the local M.NA. And the local M.P A. And that it was on the direction of the Chief Minister that the order in question was made.
3. By Article 212, Sub-Article (1) of the Constitution, 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 matters, among others, relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters, by Sub-Article (2) thereof "where any Administrative Court or Tribunal is established........ 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 the question is whether this Article excludes this Court's jurisdiction under Article 199 of the Constitution in such matters.
4. There is no doubt that the petitioner is a person in the sendee of Pakistan. At one the, there was some doubt as to an order of transfer being a matter relating to the terms and conditions of service. It is now conceded that the matter does relate to the terms and conditions of service. The ground usually urged in such cases is that the order, though made by the departmental Authority, should be treated as the order of the Chief Minister or other authority at whose direction it was made. In other words, the ground of challenge is that the order in question is mala fide and without jurisdiction.
5. This question was dealt with at some length by one of us (Fazal Karim J) in Muhammad Asif v.
Secretary to Government of the Punjab C. And D Department Lahore and 4 others (1990 P.L.C.(C.S.)
257). It recently fell for consideration in Rana Muhammad Sarwar Vs. Government of Punjab through Services, General Administration and information Department and another (1990 SCMR 999) and happily the controversy, so we think, has been set at rest. There, one of the reliefs claimed by the writ petitioner was against his transfer outside the Board of Revenue and a learned Single Judge of this Court dismissed the petition holding that his remedy lay before the Service Tribunal. It was held by the Supreme Court that all the matters agitated by the writ petitioner related to the terms and conditions of his service; that all actions taken against a civil servant may be challenged on the ground of mala fide of law or mala fide of fact, that mala fide of law is involved where authority, not competent, had taken an action or the mandatory procedural requirements for taking the actions or the jurisdictional requirements for it remained unsatisfied and that "as under Article 212 (3) of the Constitution the Sendee Tribunal has exclusive jurisdiction to deal with the terms and conditions and the reliefs claimed by the petitioner also from the terms and conditions of service, the High Court has appropriately held that the matter was a fit one for examination by the Service Tribunal".
6. Learned counsel for the appellant tried to argue that under section 4 of the Punjab Service Tribunals Act, 1974 an appeal lies against a final order "made by a departmental authority" according to him, as to him, as the order in question was made on the direction of the Chief Minister, it cannot be regarded as the order of the departmental authority. In our opinion, the only merit of this contention is its ingenuity Admittedly, the order was made by second respondent, and he was the departmental authority within the meaning of section 4 of the Act. The proper approach in such cases appears to be to ask the question whether the Service Tribunal can refuse to entertain an appeal on the ground that the order in question, though made by the departmental authority, was made on the recommendation or dictation of a higher authority. The answer is plainly in the negative. The Service Tribunal has to take the order as the order of the authority who purportedly made it, and decide the question, if raised, whether it was made on the recommendation or dictation of a higher authority and is, therefore, malafide and without jurisdiction. An appeal is a classic instance of direct attack by which an order made or action taken without or in excess of jurisdiction may be challenged; this is an ordinary instance of appeal and it is a well settled principle that an appeal lies from a decision with jurisdiction in the same manner as an appeal lies from a decision with Jurisdiction. (See Muhammad Ashraf Vs. The State (PLD 1973 Supreme Court 368, 378); Abrar Hassan Vs. Government of Pakistan and Another (PLD 1976 Supreme Court 315,334). It was sometime sheld that no appeal lies against an order without jurisdiction, for it is void and a nullity and does not, therefore, exist in the eye of law. But to say that an order is a nullity is not to say that the order is not an order for any purpose or is legally nonexistent for the purposes of appeal. (Kofi Foifie V. Seifah ) (1958) A.C. 59; Calvin V. Carr (1979) All ER 440 PC).
7. It was argued also that the expression 'Court' in Article 212, Sub- Article (3) of the Constitution does not include the High Court and the Supreme Court. We have already referred to Rana Muhammad Sawar's case, where it was held that the Service Tribunal has in such matters, exclusive jurisdiction which obviously including the High Court stands excluded. In this connection reference may also be made with advantage to the Islamic Republic of Pakistan Vs. Dr. Safdar Mahmood (PLD 1983 Supreme Court I00).
8. Learned counsel for the appellant referred us to a D.B. Judgment of (his Court in Shagufta Bibi Vs. Deputy Education Officer (Women) Tehsil and District Sahiwal (1990 PLC (CS) 345), learned Judge in chamber Mian Allah Nawaz J being the author of that judgment. We find, however, that in that case, the question of jurisdiction was not raised and decided. The learned Judge in chamber himself distinguished that case saying that it was decided on its own facts. However that may be, the question now stands concluded by the Supreme Court judgement referred to above.
9. For these reasons, the appeal is dismissed but the parties are left to bear their own costs.