' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a service matter.
2. According to the facts stated in this petition the petitioner who is working as a Patwari in Halqa Garjakh has undergone various transfers during a span of about one year. Lastly by order dated 28-2-1994 of the Assistant Commissioner, respondent No,3 has been appointed in his pace while he has been transferred to Guloki. This order according to the learned counsel for the petitioner, was passed pursuant to the direction contained in order dated 27-2-1994 of the Minister for Revenue, Government of Punjab, Lahore.
3. The first question which arises is as to the jurisdiction of the Court to entertain such a petition in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 read with Punjab Service Tribunals Act, 1974. The trend of authorities undoubtedly is that in matters involving transfers of civil servants, this Court cannot interfere in the exercise of its constitutional jurisdiction as it is the exclusive domain of the Service Tribunal to do so.
4. Syed Jamshed Ali, learned counsel for the petitioner has however, relied upon the cases of G.A.
Mirza v. Military Accountant-General, Rawalpindi (PLJ 1976 Tr.C. (Service) 322; Dr. Muhammad Akbar Farooqi v. Director, Livestock Production Extension and Artificial Insemination Service, Punjab and another (1984 PLC (C.S.) 1167) Muhammad Ali v. Chairman, WAPDA and others (1986 PLC (C.S.) 470) and Farhat Shaheen Akram v. Government of the Punjab (1986 PLC (C.S.) 959) from the various Federal Service Tribunals and other Tribunals of various Provinces that the Tribunals have consistently held that the transfer is a matter not relating to the terms and conditions of civil servants and further that an appeal in such matters was barred by proviso to section 4(2)(b) of the Service Tribunals Act inasmuch as it involves determination of fitness to hold a particular post.
5. The contention of the learned counsel to some extent is supported by the decisions relied upon by him but, I am not in a position to give any weight to it in view of the authoritative pronouncement of the Supreme Court including Islamic Republic of Pakistan v. Dr. Safdar Mahmood (PLD 1983 SC 100) and an unreported judgment in Civil Petition No,26 of 1992 which was followed by my learned brother Gul Zarin Kiani, J. In Iftikhar Ali v. Assistant Commissioner, Saddar Sub-Division Tehsil Sarai Alamgir, District Jhelum (1994 MLD 2364). This deularation of law is binding not only on this Court but also on the Service Tribunal in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
6. Syed Jamshed Ali, Advocate then attempted to argue that transfer is not one of the terms of conditions of service but is only an incidence of service. In that context it was explained that "term of services has reference to the tenure while condition would include the matters like pay seniority promotion and confirmation. He cited B. Varadha Rao v. State of Karnataka and others (AIR 1986 SC 1955) in support of this contention. Syed Jamshed Ali also argued that the mare fact that section 9 of the Punjab Civil Servants Act, 1974 is included in Chapter 11 would not make the matter of transfer as a term and condition of service is not a part of Statute.
7. There is no merit in this contention. On its plain reading, section 9 of the Punjab Civil Servants Act, 1974 places an obligation on every civil servant to serve anywhere within or outside the province in any post under the Government of Punjab or the Federal Government as the case may be. It therefore cannot be argued with any success that posting and transfer is not a condition of service.
I am also not in agreement with the learned counsel for the petitioner that the "term of service only refers to the tenure of service. Even otherwise relevant expression is not "term" but "terms". No elaborate discussion on the subject need be made in view of the pronouncement of this Court in Muhammad Asif v. Secretary to Government of the Punjab C&W Department, Lahore and 4 others (1990 PLC (C.S.) 257) in which this contention was examined in detail and was repelled. In the same judgment the subsidiary argument that the transfer of a civil servant involves determination of his fitness was also considered and rejected by ruling that the transfer was in no way germane to fitness of a person to hold a post, and therefore, proviso (b) to section 4(1) of the Punjab Service Tribunals Act, 1974 had no applicability.
' In view of what has been said above there is no option but to hold that this petition is not maintainable and is dismissed leaving the parties to bear their own costs.