TARIQ PARVEZ KHAN, J.---Petitioner was appointed as Trade Instructress, Vocational Institute (Women) and posted at Mansehra, where she served 'from 20-3-1984 to 25-9-1996. Vide order dated 29-8-1996, she was transferred to Swat and on her post, respondent No. 1 was transferred to Mansehra from Swat.
2. The petitioner, through 'an' application dated Nil, addressed to Director, Technical Education, N.- W.F.P., made representation requesting for her posting at Abbottabad. Said application of her, was endorsed by the then Provincial Minister for Social Welfare to the Minister Education. It appears that on the recommendation of the Minister for Education, she was transferred to Abbottabad, in supersession of the earlier order dated 29-8-1996. Thereafter, the order-dated 21-10-1996 was issued, through which order dated 24-9-1996, which in fact was in supersession of earlier order was withdrawn. As such, the order operative became the first order-dated 29-8-1996.
3. In this petition, the orders dated 29-8-1996 and 21-10-1996 are impugned.
4. Learned counsel for the petitioner argued that successive orders passed by the same authority be-speak of mala fide and as such illegal exercise of jurisdiction. While challenging the aforesaid orders, he referred to SO(O&M) S&GAD/4-1/89, dated 18-2-1991, wherein the Provincial Government has laid down the Policy of posting and transfer of civil servants. Learned counsel submitted that the minimum period in ordinary case, for posting at particular station was fixed 3 years, as such, the order dated 29-8-1996 and 21-10-1996 are against policy and hence not sustainable. In support of his submission, reliance was placed on Syed Mazhar Hussain Bukhari v. Secretary to Government of Punjab, Local Government and Rural development Department and others 1996 SCM R 59.
5. We have gone through the judgment cited above. The said judgment of august Supreme Court, is not final as in the same, after formulating the points, the Supreme Court has granted leave to appeal. However, the cited judgment has referred to Zahid Akhtar v. Government of Punjab and others (PLD 1995 SC 530) wherein it was held: "Tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is to apprise these elected representatives the nicely of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order of direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an at of indiscretion on the part of bureaucrats, which may not be justifiable on the plane of hierarchical discipline. A Government servant is expected to comply only those orders/directions -of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action."
6. The facts and circumstances of the case are distinguishable, in as much that all the orders, namely, first order dated 29-8-1996, second order dated 24-9-1996 and the last order, dated 21-10- 1996, all having been communicated to Minister of Education, N.-W.F.P., of which, petitioner is a party in acquiring one of such orders. She got cancelled order, dated 29-8-1996 by using influence of Minister of Social Welfare. This remedy, under Article 199 of Constitution of Islamic Republic of Pakistan, would come for help of those who believe on fair play and equity. But, the facts of instant case, suggest, that petitioner has also resorted to political pressure being used for her help.
7. Notwithstanding the factual aspect of this case, we are mindful of our jurisdiction in matter of term and condition of civil servants which falls within the domain of Services Tribunal and under Article 212 of the Constitution of Islamic Republic of Pakistan, if not totally ousted, is controlled under, the Constitution. Reverting back to the case of ' Zahid Akhtar', their Lordships of Supreme Court has not laid down any absolute rule of law, but, as observed by his Lordship Justice Muhammad Bashir Jehangiri, in ' Syed Muzhar Hussain Bukhari' is what is the effect of violation of the directions made by this Court in the precedent case of Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530) and, if the answer to proposition at (1) (Whether the impugned order of transfer dated 13-10-1994 and subsequent order of cancellation dated 2-11-1994 were passed by the competent. Authorities) be affirmative, whether the impugned orders had become extraordinary in light of observations made of the Court in ' Zahid Akhtar' case and have become coram non judice involving question of jurisdictional defect as settled by this Court in Malik Hayat v. Supreme Appellate Court of Sind (PLD 1995 SC 505) and therefore, jurisdiction of this Court is not barred.
Latest view of the august Supreme Court of Pakistan, on question of transfer is well-settled in case of Miss Rukhsana Ijaz v. Secretary Education (1997 SCM R 167), it has been so held: "We have heard the learned counsel for the parties. Both the petitioner and respondent No. 1 are admittedly civil servants. Dispute between them relates to their transfer/posting which is a matter relatable to the terms and condition of their service. Disputes about these matters fall within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of the High Court is excluded in such matters by virtue of the express provisions of Article 212(2) of the Constitution. It appears that the learned Judge in the High Court has not duly attended to this aspect of the matter before issuing the stay order. In the circumstances, we convert this petition into an appeal and allow it.
The impugned stay order is set aside and it is directed that the High Court should first decide the question of its jurisdiction before passing any stay order."
Similarly in case of Ayyaz Anjum v. Government of Punjab Housing and Physical Planning Department through Secretary and others (1997 SCM R 169) their Lordships have held: "Clearly, the matters relating to the posting and transfer of a civil servant relate to the terms and conditions of his service. Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal. The jurisdiction of High Court is barred in these matters by the express provisions of Article 212(2) of the Constitution. We are, therefore, unable to support the interim order made by it in this case. Accordingly, we convert this petition into appeal and set aside the said order. The High Court should first determine the question of its jurisdiction before making any interim order in this case. This appeal is disposed of accordingly. "
A Division Bench of this Court in case of Abdul Hamid v. Government of N.-W.F.P. Through Chief Secretary to the Government of N.-W.F.P., Peshawar etc. (1997 PLC (C. S.) 210) has held: "Articles 199, 212 writ petition in a service matter would not be competent in view of bar contained in Article 212(2)."
The petition is heard in motion. However, on 3-12-1996, this Court had suspended the operation of order dated 21-10-1996, which is continuing till to date. Following the law, as laid down by supreme Court in cases cited above, we are left with no option but to withdraw the order dated 3-12-1996 of which notice was given to the respondents.
8. There appear no evidence of mala fide, or order being without jurisdiction, or coram non judice, and even if so, same can be challenged in the proper forum which can go into all such questions and decide the case on merits.
9. For the reasons stated in the preceding paragraph, this petition is dismissed in limine.