MANZOOR HUSSAIN SIAL, J.-By this Order I propose to dispose of Writ Petition Nos. 5922/91,5719/91 and 6252/91 as these arise out of similar facts and are directed against the same impugned Order.
2. The petitioners in these cases are employees in the Education Department, Government of Punjab. On the basis of a complaint lodged against them on 8.12.1990 by the residents of Shahdara to the local MPA for use of unfair means and corruption in the conduct of PTC/CT Examination of Lahore Division a preliminary probe into the matter was made on the direction of the Chief Minister Punjab, by the afore-said MPA and a Magistrate deputed by the Deputy Commissioner in that behalf.
3. Meanwhile the Government of Punjab in the Education Department vide order dated 4.6.1991 transferred the petitioners from the posts held by them at that time and placed their services at the disposal of the Director Public Instruction (Schools) Punjab, Lahore for further posting/adjustment. The latter vide impugned order dated 1.7.1991 posted/adjusted them, Hence these petitions.
4. Learned counsel for petitioners vehemently contended that as Mr. Mahmood Ahmad, MPA was not obliged by the petitioners on various occasions he manipulated a false complaint against them and got the same referred to him for inquiry and succeeded in securing their transfer by exerting undue influence upon the authorities concerned. It was further contended that the local MPA could not hold inquiry into the matter and all proceedings held and actions taken are bad in law and without jurisdiction. It was also argued that the Chief Minister had no lawful authority to direct holding of inquiry into the allegations levelled against them because he was not the chief executive and only the Governor of the Province could competently pass order for holding inquiry into the allegations levelled against the petitioners. Learned counsel cited Nawab Syed Raunaq Ali etc Vs. Chief Settlement Commissioner and others (P.L.D. 1973 Supreme Court 236), Muhammad Aslam Baloch Vs. Member, Board of Revenue (Colonies) Punjab and 2 others (1988 C.L.C, 356), Election Commission of Pakistan through its Secretary Vs. Javaid Hashmi and others (P.L.D. 1989 Supreme Court-396).
5. Learned Additional Advocate-General, on the other hand, submitted that the petitioners are civil servants. The impugned order of their transfer relates to the terms and conditions of their service. It is not assailable in writ jurisdiction due to the bar contained in Article 212(2) of the Constitution of the Islamic Republic of Pakistan, 1973. It was also submitted that only the Services Tribunal constituted under clause thereof has exclusive jurisdiction to deal with such matters. It was also stated that only a preliminary probe was made into the complaint against the petitioners which was routed through the local MPA who being a public representative could completely forward the same to the Government for holding inquiry into the matter. It was pointed out that so far no action was taken against the petitioners under the Efficiency and Disciplinary Rules, 1975 which can validly be taken by the competent authority if the allegations against them prima facie contain substance therein. As regards the order of transfer of the petitioners it was submitted that the same was passed by the competent authority and cannot be challenged in writ jurisdiction.
6. I have considered the contentions raised by learned counsel for the parties and have gone through the documents available on the record. The petitioners are undoubtedly civil servants and their transfer was ordered by the competent authority. It is not the case of the petitioners that their transfer Order was passed by an authority legally not competent to do so but they maintain that their transfer Order was obtained malafidely by the local MPA as they failed to oblige him. In my view this aspect of the case can validly be adjudicated upon by the Services Tribunal constituted under the afore-mentioned provisions of Article 212 of the Constitution as held in M. Yamin Qureshi Vs. Islamic Republic of Pakistan (PLD 1980 S.C. 22), Rana Muhammad Sarwar Vs. Government of Punjab (1990 SCM R 999) and Khalilur Rehman Vs. Government of Pakistan (PLD 1981 Karachi 750).
The learned Additional Advocate-General pointed out that so far only a preliminary probe was made into the allegations, no regular inquiry under the Efficiency and Disciplinary Rules was initiated against the petitioners. If a regular inquiry is held against the petitioners under the relevant provisions of the Efficiency and Disciplinary Rules, 1975 the points raised by the petitioners can be agitated before the Enquiry Officer, the Authorised Officer and the Competent Authority. It is important to observe that the proceedings of the preliminary probe made by the Committee of which the local MPA was one of the members pursuant to complaint originated from his constituency, ostensibly entrusted to him for inquiry by the Chief Minister at his instance, is of no legal significance inter alia for the reason that it is established on the record and categorically not denied by the respondents, that the local MPA had been approaching the petitioners for favours in certain matters beyond the scope of his jurisdiction. The competent authority however, is fully empowered to proceed in the matter against the petitioners under the Efficiency and Disciplinary Rules, 1975.
In the instant case the Order of petitioners' transfer was made by the Director Public Instruction (Schools) and not by the Chief Minister, therefore, the contention as to whether the Chief Minister or the Governor of the Province of Punjab is the Chief executive is hardly relevant. The contention raised in this behalf, being off the mark, merit no consideration and is left for examination in some other appropriate case.
It is abundantly clear that under Article 212(1) of the Constitution read with section 9 of the Civil Servants Act, 1974, the Service Tribunal has the exclusive jurisdiction to deal with the matters relating to the terms & conditions of the Civil Servants and the impugned order of petitioners' transfer passed by the competent authority relates to their terms & conditions of service, is thus not assailable in writ jurisdiction.
Subject to the observation made above these petitions fail and are dismissed.