MIAN MUHAMMAD AJMAL, J.---Dr. Karim Shah and his wife Dr. Mrs. Mumtaz Begum, petitioners herein, have invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking declaration to the effect that their transfer orders be declared to be illegal, un-Constitutional, devoid of legal authority and of no legal effect.
2. As per averments of the writ petition the petitioners have been serving in the Health Department for about ten years. They purchased a residential plot whereupon differences arose between them and Mr. Bin Yamin Khan, Provincial Minister who has filed a suit for pre-emption through his son in the Court of Senior Civil Judge, D.I. Khan, which is pending adjudication; that the said Minister got him transferred from District Headquarter Hospital, D. I. Khan to Civil Hospital, Kulachi, vide order dated 21-11-1994; that the petitioners approached the Health Minister and explained their position, consequently transfer order was cancelled vide Director-General, Health Services, N.-W.F.P., Peshawar order dated 27-11-1994; that on telephonic directions of Director-General, Health Services, N.-W.F.P. Dated 15-1-1995 Medical Superintendent, D.H.Q. Hospital, D.I. Khan relieved the petitioners from their duties and directed them to report for duty at Tehsil Headquarter Hospital, Kulachi; that the petitioners again approached the Health Minister for same remedy but in vain, hence they took over the charge at Kulachi; that the petitioners approached the Chief Minister for their redress, who graciously ordered the transfer of the petitioners from Kulachi to D.1. Khan. In consequence thereto office order by Director-General, Health Services, N.-W.F.P., Peshawar dated 19-6-1995 was issued; that the Director-General, Health Services, N.-W.F.P., Peshawar cancelled the aforesaid office order vide order dated 9-7-1995 purportedly under the direction of the said Minister; that the petitioners have assailed the order dated 9-7-1995 to be ultra vires, mala fide, against law, without lawful authority and is thus liable to be declared to be of no legal effect.
3. Learned counsel for the petitioners contended that the transfer orders are based on mala fides and political abuse of powers, as the same have been manoeuvred by respondent No. 4, a Minister who is hostile towards the petitioners due to civil litigation on the plot which has been purchased by them. The repeated transfer orders, their cancellation and revival would show that there was a tug of war between the petitioners and respondent No.4, and none of the orders was passed with the independent application of mind by the competent Authority thus the orders passed under the dictative influence of the Ministers are void ab initio, mala fide and malicious, which can be declared as such by this Court in Constitutional jurisdiction notwithstanding the bar envisaged in Article 212 of the Constitution. He urged that under section 4 of the Service Tribunal Act, 1974 only final order can be appealed against after representation which takes 90 days and for such period Constitutional jurisdiction can be invoked, and this Court under its Constitutional jurisdiction can pass appropriate order in the circumstances of the case.
4. On the other hand, learned counsel for the Government submitted that this writ petition being incompetent is un-maintainable as posting and transfer' fall within the terms and conditions of a civil servant, and as such in view of the bar contained in Article 212 of the Constitution, this petition deserves to be dismissed.
5. We have given due consideration to the submission of the learned counsel for the parties and have gone through the file.
6. The questions that emerged for determination are whether in view of the bar contained in Article.
212 of the Constitution, jurisdiction of this Court under Article 199 of the Constitution can be invoked and whether this Court in its Constitutional jurisdiction under Article 199 of the Constitution can grant relief for a period of 90 days against the order which has not attained finality where the representation has been preferred or ought to be preferred and 90 days have not elapsed as envisaged in proviso (a) of section 4 of the N.-W.F.P. Service Tribunals Act, 1974.
7. As far invocation of writ jurisdiction under Article 199 of the Constitution by a civil servant with regard to his posting and transfer is concerned, it is barred by Article 212 of the Constitution; which is reproduced hereinunder:--- "212. Administrative Courts and Tribunals. ---(I) 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 which is deemed to be enemy property under
(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: 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, Parliament by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
In pursuance to the provisions contained in aforequoted Article, N.-W.F.P. Service Tribunals Act, 1974 was enacted. Section 3 of the Act ibid provides for the establishment of Service Tribunal having exclusive jurisdiction in respect of the matters relating to the terms and conditions of service of the civil servants including disciplinary matters and under section 4 of the Act, the aggrieved civil servant has a right to appeal before the Tribunal for his redress. Section 4 of the Act reads as follows:--- "4. Appeal to Tribunals.---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 the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal having jurisdiction in the matter; provided that---
(a) where an appeal, review of a representation to a departmental authority is provided under the North-West Frontier Province Civil Servants Act. 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining--
(i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal from service, removal from service or compulsory retirement; (and)
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any the before the 1st July, 1969.'
Its reading would manifest that any civil servant aggrieved by any final order in respect of any of the terms and conditions of service, made by a departmental authority, can file an appeal in the Tribunal within 30 days of the receipt of such order; provided where a departmental remedy of appeal, review or representation is available but not availed, the appeal before the Tribunal would not be maintainable. The departmental remedy provided by appeal/review representation besides being a precondition for filing an appeal before the Tribunal, is an adequate remedy available to a civil servant, who without exhausting the same cannot even invoke the Constitutional jurisdiction of the High Court. It is well-settled law that where a statute creates a right and also provide remedy before a forum for the enforcement of such rights, the person aggrieved for the violation of his rights, has to approach the specified forum for the redress of his grievance. Article 212 vis-a-vis 199 of the Constitution read with section 4 of the N.-W.F.P. Service Tribunals Act, 1974 came under consideration before this Court and the august Supreme Court of Pakistan in the following cases:-- -
(a) In case of Mian Amanul Mulk v. N.-W.F.P. Through Chief Secretary PLD 1981 Peshawar 1, Full Bench of this Court observed as under:--- "15. Reverting to Article 212 of the Constitution, it may be noticed that when a Tribunal is established under the said Article no other Court is empowered to grant any injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends' It also provides all proceedings in respect of the matters within the jurisdiction of the Tribunal pending before any other Court shall abate. The provisions of this Article on the very language oust the jurisdiction of all other Courts and as observed by a Division Bench of this Court in the case of Dr. Raja Manzoor Elahi v. N.-W.F.P. PLD 1980 Pesh. 81 an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the jurisdiction of the Civil Courts and for that matter of the High Court is specifically ousted. The words 'Notwithstanding anything hereinbefore contained' occurring in clause (2) of Article 212 definitely points to all the provisions of the Constitution including Article 199 which gives extraordinary jurisdiction to the High Court to make orders and directions. It is, therefore, logical to conclude that the jurisdiction of the Tribunal wherever it exists, ousts, the jurisdiction of High Court under Article 199 and also of the Courts of ordinary civil jurisdiction.
16. The learned counsel for the petitioner has argued that the High Court can come to the rescue of an aggrieved person if an order is passed mala fide, without jurisdiction or when it is in the nature of coram non judice or is ab initio void. We are, however, not convinced by this argument. In our opinion all that is necessary is that the order to be impugned should be an order of the departmental authority and if it is an order of such authority and the Tribunal has been conferred jurisdiction by the law under which it is established, the jurisdiction of the High Court is totally ousted. As a consequence, wherever the jurisdiction of the Tribunal exists, it is not open to the aggrieved civil servant to invoke the jurisdiction of 'the High Court under Article 199 of the Constitution by saying that the order of the departmental authority is without jurisdiction or it is void or it is mala fide r it is in the nature of. Coram non judice."
(b) In case of Rana Muhammad Sarwar v. Government of Punjab 1990 SCMR 999, it was held:--- "3. The relief sought for by the petitioner has been reproduced in order to highlight the nature of the grievance and its extent. These all relate to. The terms and conditions of employment. The question of abolition of the post may be within the exclusive competence of a particular authority but if it is used as a device for achieving an object not permitted by law, then it is a violation of the terms and conditions of employment. All actions taken against civil servants with regard to the employment can be challenged on the ground of mala fide of law or mala fide of fact. Mala fide of law is involved where authority not competent has taken an action or the mandatory procedural requirements for taking the action or-the jurisdictional requirements for it remain unsatisfied. Mala fide in fact relates to these cases where personal bias, grudge or vindictiveness is the prompting force for action ostensibly in proper form and content. The latter category of actions is as much violation of terms and conditions of employment as is the first category because public power is never entrusted or reposed in functionary to be exercised for achieving personal ends like unjust enrichment, vindictiveness or revenge. Terms and conditions of service embrace bona fide discharge of public duties by the repository of public power.
4. 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 a fit one for examination by the Service Tribunal."
(c) In 'I.A. Sharwani and others' case 1991 SCMR 1041 the Supreme Court examined Article 212 of the Constitution and section 4 of the Service Tribunals Act and observed as follows:--- "6. A perusal of the above-quoted Article 212 of the Constitution indicates that under clause (1), .The appropriate Legislature has been empowered to enact for the establishment of one or more Administrative Courts or Tribunals for exercising exclusive jurisdiction in respect of the matters referred to in sub-clauses (a), (b) and (c) of the above clause, which inter alia include the matter relating to the terms and conditions of persons who are or have been in the service of Pakistan including in respect of disciplinary matters. It may further be noticed that clause (2) of the above Article provides that notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established in terms of 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. It also provides the abatement of the pending proceedings in respect of such matters except those appeals, which were then pending in this Court. It may also be noticed that the proviso to clause (2) contemplates that the above clause shall not be applicable 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 by law extends the provision to such a Court or Tribunal, whereas clause (3) provides an appeal to this Court with leave from a judgment, decree, order or sentence of an Administrative Court or Tribunal provided the case involves a substantial question of law of public importance.
7. It may also be pointed out that subsection (1) of section 4 of the Act provides right of an appeal before the Service Tribunal to a civil servant if he is aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of his terms and conditions of the service within 30 days of communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, subject to sub-clause (a) which provides a precondition for filing of a service appeal by providing that an aggrieved civil servant before approaching the Service Tribunal should file an appeal, review of representation as may be provided for under the relevant Rules before the departmental authority and should wait for the expiry of 90 days from the date on which such appeal, review or representation was preferred, if the same is not decided before the expiry of the above period. Whereas sub-clauses (b) and (c) provide the cases in which no appeal shall lie to the Service Tribunal, namely, (i) against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade, and (ii) against an order or decision of a departmental authority made at any the before the 1st July, 1969. It may further be noticed that under clause (a) of subsection (2) in case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or the-scale or to a lower stage in a the-scale, the appeal shall lie to a Tribunal referred to in subsection (3) of section 3 of the Act, and in any other case under clause (b) to a Tribunal referred to in subsection
(7) of section 3 of the Act. It may also be noticed that the explanation to subsection (2) of section 4 defines the term 'departmental authority' as means an authority other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of the civil servant. "
In view of the above rulings,-it is clear that this Court under Article 199 of the Constitution cannot exercise its jurisdiction in the matters relating to the terms and conditions of the service of a civil servant for which separate hierarchy has been created by a statute for the redress of the grievance of the civil servants.
8. Now we come to the second question, whether this Court can grant relief for the period of 90 days when departmental remedy by way of appeal/review representation has been preferred or ought to be preferred but the said period has not elapsed. This proposition was examined by Full Bench of High Court of Sind in case of Abdul Bari v. Government of Pakistan and others PLD 1981 Karachi 290 and answered as under:--- "Section 4 deals with the right of appeal of aggrieved civil servants in respect of final order passed by departmental authorities before, the Tribunal. Proviso (a) does not limit the jurisdiction of the Service Tribunal in regard to the subject-matter which could be adjudicated upon by the Service Tribunal. The provision only seems to have the effect of allowing a the gap of 90 days so that the appellate or reviewing authorities in the Department may re-examine the order and remove any errors or defects departmentally before the matter is placed before the Tribunal. The effect of this proviso, upon its plain meaning, cannot be construed to restrict the exclusiveness of the jurisdiction of the Tribunal in relation to matter committed to its jurisdiction exclusively. Similar provision can be found in other Statutes and a glaring example is provided by the statutory provisions requiring prior notice to certain authorities before commencement of legal proceedings, like section 80, C.P.C. And similar provisions under other Statutes. The object of such statutory provisions is to give opportunity to public authorities at the highest official level to reconsider the matters involved. The provision, therefore, is at best a procedural precondition for filing of proceeding before the Service Tribunal and cannot be construed in any way to whittle down the exclusiveness of the jurisdiction of the Tribunal. The learned Deputy Attorney-General argued and we agree with the submission that under section 5 of the Service Tribunals Act, the Tribunal has the power, on appeal, to confirm, set aside, vary or modify the order appealed against, from which it follows that the orders passed in appeal by the Tribunal would be effective from the date of the impugned order in appeal.
Therefore, the period of 90 days provided for in proviso (a) of section 4(1) would be covered by a decision made by the Tribunal. Viewed in this perspective the jurisdiction of the Tribunal seems to extend ultimately to the the immediately following the impugned order. We therefore; find little force in the contention of the learned counsel that as a result of the abovesaid provision the High Court will have jurisdiction to entertain proceedings at least for 90 days. We are unable to place such construction as is canvassed by the petitioner's counsel on the relevant provision as clearly once the subject-matter pertaining to any terms and conditions of service of civil servants has been placed within the jurisdiction of the Tribunal, the ouster of the jurisdiction of other Civil Courts is absolute in respect of such terms and conditions. If, therefore, the procedure for invoking of the Tribunal provides for certain preliminary steps to be taken, it cannot be said that during the the such steps are taken the Civil Courts will have jurisdiction. Such construction will clearly be unreasonable and produce unnecessary complications."
Article 212 of the Constitution begins with the non obstante clause as 'Notwithstanding hereinbefore contained', which gives it an overriding effect ousting the jurisdiction of this Court under Article 199 of the Constitution to entertain any proceedings regarding matters falling within the jurisdiction of Service Tribunals, therefore, this Court cannot grant any relief even for a short phase under Constitutional jurisdiction as assumption of jurisdiction for whatever period would amount to violating the bar of Article 212 of the Constitution which is absolute and for all intents and purposes and any proceedings taken under Article 199 would be without jurisdiction.
9. In the case in hand the impugned order was issued on 9-7-1995, i.e. More than a year ago but there is nothing to suggest that the remedy provided by the relevant law has been availed before the prescribed Tribunal. Under section 10 of the N.-W.F.P. Civil Servants Act, 1973 every civil servant is liable to posting and transfer anywhere within or outside the Province, to any post under the Federal or any Provincial Government, local authority or corporation or body set up or established by any such Government. The civil servant, if feels aggrieved of such transfer, has a right of appeal before the Service Tribunal having exclusive jurisdiction in the matters falling within the terms and conditions of his service, and the High Court shall have no Jurisdiction in view of the bar contained in Article 212 of the Constitution.
10. In case of Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 the Supreme Court of Pakistan has laid down the guidelines for the evidence of Federal and Provincial Governments to be followed in the matter of the civil servant, but it appears that the said followed in their letter and spirit, which is highly regrettable.
Te upshot of the above discussion is that under Article 212 of the Constitution, this writ petition is incompetent and un-maintainable, and as such, is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.