ORDER TASSADUQ HUSSAIN JILANI, J. - The petitioner, who is a Sub- Divisional Officer in the Irrigation Department, through this Constitutional petition, has challenged the order dated 3.11.1994 passed hy Secretary to the Government of the Punjab, Irrigation and Power Department whereby the petitioner has been transferred from Tubewell Drainage Sub-Division, Khanpur and was directed to report to I & P Secretariat for further posting.
2. The main grounds urged in the petition and argued before this court are as follows:-
(i) That the impugned transfer order has been motivated by political considerations as the same has been manoeuvred by a local MPA who was inimical towards the petitioner on account of the fact that the petitioner had demolished a watercourse which the said MPA had illegally constructed. According to the petitioner, the local MPA had converted a saline drain into a watercourse and the petitioner demolished the same pursuant to Army instructions who were actively associated with the saline and tube wells/drainage system under Scarp-VI;
(ii) That since the order has been passed under direction from the said MPA, the impugned orders are void, ab initio and can be challenged through the Constitutional petition and the bar envisaged hy Article 212 of the Constitution of Islamic Republic of Pakistan is not attracted.
3. Mr. Shaheen Masood Rizvi, the learned Assistant Advocate General assisted by the learned counsel for respondent No. 3 (Mr. M.M.A. Pirzada, Advocate) -has submitted that this petition is not maintainable as the same relates to the terms and conditions of a civil servant and the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan is fully attracted. In the written statement filed by respondent No. 3, it has specifically been averred that the Project Officer of Scarp-VI from Army had expressed the desire that the petitioner should no longer he posted in both the Sub-Divisions under his control i.e. Khanpur Tubewell Drainage and Rahimyar Khan Tubewell Drainage, Sub-Divisions. A photostat-copy of the letter from the said Project Officer has been attached as Annexure-R-I with the written statement.
4. Sitting in Constitutional jurisdiction, this Court would not like to comment on the ground of mala fides or otherwise of the impugned action or the question of petitioner's suitability or unsuitability for the post in question as that of necessity would entail a factual inquiry. It has become a common practice to attribute "mala fides" to an order of a competent Authority when it is assailed in a Court. Strictly speaking, this is a difficult thing to prove. The Hon'ble Supreme Court in its reported judgment in PLD 1974 SC 151 (The Federation of Pakistan Vs. Saeed Ahmad Khan and others) has made a very instructive observation on this point and has laid down the essentials for proving such an allegation. At page 156 it has been observed:- Mala fides literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or actions taken in fraud of the law are also mala fides. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above."
5. Nothing has been brought on record to show that the impugned transfer has^nonmotivated to harm the petitioner or was taken to benefit the authority which passed the order.
6. However, the fundamental point touching the maintainability of this petition is the question of jurisdiction of this Court under Article 212 of the Constitution. The petitioner is admittedly a civil servant and is connected with the affairs of the Province and is governed by Punjab Civil Servants Act, 1974. Section 9 of the said Act reads as under:- 'Posting and transfer-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: Provided that, where a civil sextant 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".
7. Pursuant to the Constitutional provision contained in Article 212 of the Constitution, for the establishment of administrative course and Tribunals, the Punjab Services Tribunal Act 1974 was enacted and it was provided that any civil servant aggrieved by official order passed by "a Departmental Authority in respect of any of the terms and conditions of service may prefer an appeal to the Services Tribunal within the period specified in the said Act. The plain reading of the afore-mentioned Constitutional and statutory provision would show that jurisdiction of all other Courts, except the Services Tribunal, has been taken away and the Services Tribunal has been entrusted with the exclusive jurisdiction to decide the matters relating to the terms and conditions of service of persons in the service of Pakistan or the Province.
8. The question of ouster of jurisdiction of this Court has come up for consideration before the Hon'ble Supreme Court as also this Court and a reference to some of the recent judgments may be most appropriate here. Ir 1980 PLC (CS) 397 (Allah Rakha and another Vs. Government of the Punjab and others), the question of a transfer of a Government servant was- challenged th rough the Constitutional petition and the matter want up to that Hon'ble Supreme Court in which it was held:- "Constitution of Pakistan (1973) Art. 185(3) read with Punjab Civil Servants Act (VIH of 1974), S.9- Government servant- Cannot legally object to being transferred and posted to a place other than where he may be presently posted -Authorities, held have a right to make transfer of any Government servant-Term and conditions of service-Not affected by such transfer- Government servant thus transferred -Cannot be deemed to bi aggrieved person in eye of law and thus cannot agitate against his transfer by way of writ petition."
Similarly in 1992 SCM R 1843 (Nazir Ahmad Vs. NWFP),, it was held:- "North West Frontier Province Civil Servants Act (XVIH of 1973)
S. 1 ()--Civil servant is liable to transfer anywhere within of outside the Province to any post under the Federal Government or any Provincial Government or Local Authority or Corporation or body set up or established by any such Government-Civil servant cannot object to his transfer."
In 1990 SCM R 999(1001) Muhammad Sarwar Vs. Government of Punjab) it was held:- "As under Article 212(3) of the Constitution the Service Tribunal has exclusive jurisdiction to deal with the terms and conditions ' and the reliefs claimed by the petitioner also form the terms and conditions of service, the High Court has appropriately held that the matter was fit one for examination by the Service Tribunal."
9. The allegation of mala fides in transfer matters and whether that could make the order a colourable exercise of authority to attract the writ jurisdiction of this Court has come up for consideration before this Court in several cases and it was field that even the grounds of mala fides can be agitated before the Services Tribunal. One of the judgments is reported in M LD 1991 2214 12215) in which it was held:- "Petitioners Civil Servants having been transferred by competent Authorities challenged orders of transfer by means of Constitutional petitions under Art. 199 of the Constitution, on the ground that orders in question had been passed by Competent Authorities without independent application of mind, under the dictative influence of MNA/MPA/Chief Minister-High Court's jurisdiction having been barred under provisions of Art. 212 of the Constitution and S.4, Punjab Service Tribunals Act, 1974, it had no jurisdiction to hear such cases-Petitions were not competent in circumstances" .
10. The upshot of the above discussion is that Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 has created an entirely a separate hierarchy for redressal of the grievances of the civil servants which are germane to the terms and conditions of their services.
11. The petition has no merit which is, therefore, dismissed. There shall, however, be no order as to costs.