This order shall dispose of the following to Constitutional petitions involving identical question of law:--
(i) Writ Petition No. 14004/96 "Muhammad Shafique v. Director of Education etc."
(ii)Writ Petition No. 14109/96 "Shahid Sultan v. Deputy Director, Fisheries etc."
2. Transfer orders have been challenged in both these cases by invoking jurisdiction of this Court under Article 199 of the Constitution. In the first writ petition order dated 1-8-1996 has been impugned, whereby Muhammad Shafique, S.S.T. Was transferred, allegedly on the directive of the Chief Minister, against the transfer policy. In the second writ petition Shahid Sultan, Assistant Warden Fisheries has felt aggrieved against an order allegedly passed on the political pressure of the local M.N.A., transferring him from Toba Tek Singh to Pir Mehal within short period of 13 days.
3. It is not denied that the petitioners in both the cases are civil servants and the Punjab Service Tribunal is properly constituted and is functioning. It is also not denied that the impugned transfer orders have otherwise been passed by the competent departmental authorities.
4. It has been argued by the learned counsel for the petitioners that where a transfer order in respect of a civil servant is passed mala fide under political influence or against the transfer policy, the same can be interfered by this Court in exercise of its extraordinary jurisdiction under Article 199 of the Constitution and appeal before the Service Tribunal would not be an appropriate remedy in such circumstances. Learned counsel have placed reliance on the following case-law:--
(i) Zahid Akhtar v. Government of Punjab and 2 others (PLD 1995 SC 530).
(ii) Syed Mazhar Hussain Bokhari v. Secretary to Government of Punjab Local Government and Rural Development Department (1996 SCMR 59).
(i.e) Akhlaq Ahmed v. Secretary to the Government of the Punjab, Local Government and Rural Development Department (C.P.S.L.A. No. 1190-L/96)".
5. In the case of Zahid Akhtar (supra) frequent transfer orders passed on the direction of the Minister concerned were challenged before the High Court in its Constitutional jurisdiction. The High Court refused to grant the relief saying that it had no jurisdiction on account of the bar contained in Article 212 of the Constitution. Against this order of the High Court petition for leave to appeal was filed in the Supreme Court. Elaborate analysis on the subject relating to the transfers and posting of civil servants was made by the honourable Supreme Court. It was held that the transfer policy of the Punjab Government has the status of a Rule and a Minister has no authority, to order the transfer of a civil servant in view of the provisions of Rule 21(2) of the Rules of Business framed under Article 139 of- the Constitution. The Secretary of the Department was also criticised for not reminding the Minister that the transfer orders made by him were beyond the scope of his authority under Rule 21, ibid, and had been passed in violation of Government Transfer Policy. After giving guidelines for future observance by the public functionaries, the petition was dismissed as not maintainable. Conclusion made by the learned Supreme Court is reproduced below:-- "A reading of Rule 21(2) with Schedule V of the Rules of Business ibid, makes it clear that the transfer of a Section Officer/Under Secretaries and other officers of equivalent rank within the department is to be done by the Secretary of that Department. Rule 21 of the Rules of Business, which deals with power of posting, promotion and transfer of Government servants does not contemplate exercise of these powers by the Minister. The normal period of posting of a Government servant at a station, according to the above-referred policy decision of the , Government, is three years, which has to be followed in the ordinary circumstances, unless for reasons of exigencies of services mentioned in the aforesaid policy of Government, a transfer before expiry of three years' period becomes necessary in the opinion of the competent Authority. The transfer orders in the present case, therefore, could not be justified on the plane of policy directive of Government referred to above, nor they were sustainable on the language of Rule 21(2) read with Schedule V of the Rules of Business, ibid; We are in no doubt that if the transfer orders in the case before us would have been in accordance with the policy directives of the Government referred to above and power was exercised by the competent Authority as contemplated by Rule 21(2) read with Schedule V of the Rules of Business, ibid, there would have been no room for manoeuvring by the officers affected by such transfer. The fact that the transfers were made in violation of policy directive of the Government, which has the status of a Rule, and provisions of Rule 21(2) ibid, were not followed strictly, opened the door for the Government servant concerned to bring in outside influences to obtain the desired transfers. We are also sorry to note that the Secretary, LG&RD, neither resisted these unethical and undesirable moves of his subordinates nor he pointed out, to the Hon'ble Minister Incharge, that the transfer orders made by him from the to the in respect of various officers of his department were neither in conformity with the declared policy of Government nor these transfer orders conform to the provisions o: Rule 21(2) of the Rules of Business, ibid. It was the duty of the Secretary, LG&RD to have pointed out to the Minister concerned le extent of his authority in such matter, besides bringing to his notice that such frequent transfer of a Government servant could neither be justified in the exigencies of service nor it could be described in the public interest.
We are constrained to observe that such unconcerned and lukewarm attitude on the part of Head of a Government Department is not expected to promote discipline or efficiency in the department.
On the contrary such attitude may have a demoralizing effect on his subordinates encouraging them to seek intervention and favours of outside agencies, which may ultimately adversely affect the overall discipline and efficiency in the department. We, therefore, expect that the guidelines mentioned in the policy directives of the Government referred to above and the provisions of Rule 21 of the Rules of Business, ibid, will be kept in view by all concerned while dealing with the transfer of Government servants. The office is directed to send a copy of this judgment to the Government of Punjab for circulating it to all its departments, for future guidance. With these observations, this petition stands dismissed as not maintainable."
6. Syed Mazhar Hussain's case reported as 1996 SCMR 59 is a leave granting order. It was the case of member of the Local Council Service. The petitioner challenged the cancellation of his transfer from Municipal Committee, Burewala to Zila Council Lodhran in the Constitutional jurisdiction of the High Court. The writ petition was dismissed in limine. While granting leave to appeal it was observed that Zahid Akhtar's case was apparently covered under Article 187 (1)(2) of the Constitution and was prima facie enforceable throughout Pakistan. The leave was granted to consider the following three questions:---
(i) 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?
(ii) What is the effect of violation of the directions made by this Court in the precedent case of Zahid Akhtar v. Government of Punjab and 2 others?
(i.e) "If answer to proposition at (1) be in the affirmative, whether the impugned orders have become extraordinary in the light of observations made by this Court in Zahid Akhtar's case (PLD 1995 SC 530) 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-II at Karachi and others (PLD 1995 SC 505) and, therefore, jurisdiction of this Court is not barred. "
7. The facts involved in the case of Akhlaq Ahmed (supra) are like this. Akhlaq Ahmed who is member of the Punjab Local Council Service was posted as Taxation Officer, Zila Council, Rawalpindi against a vacant post. Subsequently some transfer orders were passed and his adversary Taufeeq Ahmed was allowed to continue as Taxation Officer in his place, vide order dated 6-3-1996. This order was obtained by exerting political pressure. Akhlaq Ahmed filed Constitutional petition in the High Court to impugn the said order but without success. The order of the High Court was assailed by filing petition for leave to appeal. Akhlaq Ahmed's counsel, on the basis of Zahid Akhtar's case and the leave granting order passed in Mazhar Hussain Bukhari's case, contended before the learned Supreme Court that the impugned transfer order could not have been validly passed under the influence of some other incompetent authority. The learned Advocate-General appeared at the limine stage and stated that he had "no objection if the case is sent back to the High Court so that it may be dealt with according to the case-law referred to above". Accordingly, the petition was converted into appeal and allowed in the following terms:-- "It is evident that the above-quoted law had not been taken into consideration by the learned High Court. Needless to state that the law declared by this Court, would bind all the Judicial and executive authorities throughout Pakistan. See Syed Sajjad Hussain v. Secretary, Establishment Division (C.A. 274 of 1993). In other words, the petition of the petitioner shall be deemed to be still pending for its decision in accordance with law. With this observation, this petition is converted into appeal and allowed.
8. Subsequent to the order of the learned Supreme Court in Akhlaq Ahmed's case another Full Bench of the honourable Supreme Court, in Ayyaz Anjum v. Government of the Punjab, Housing and Physical Planning Department through its Secretary 1997 PLC (C.S.) 123 has authoritatively held that matters of posting and transfer of a civil servant relate to the terms and conditions of his service fall within the exclusive jurisdiction of the appropriate Service Tribunal and the jurisdiction of the High Court stands barred by express provisions of Article 212 of the Constitution. In this case Constitutional petition was filed in the High Court against a transfer order allegedly obtained by invoking political influence. The High Court called for the record and in the meanwhile suspended the transfer order. Leave to appeal was sought against the order passed by the High Court. The petition was converted into appeal and the order of the High Court was set aside in the following terms:- "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 the 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 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."
8-A. The law declared in Ayyaz Anjum's case has to be followed because it is later in point of the and it authoritatively decides the question of jurisdiction of this Court vis-a-vis Article 212 of the Constitution. Respectfully following the above dictum laid down in Ayyaz Anjum's case I am of the view that matter relating to transfer and posting of a civil servant P fall within the exclusive jurisdiction of the appropriate Service Tribunal, by virtue of the express provisions of Article 212 of the Constitution, which is reproduced below:--- "212.---(1) 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 authority empowered by law to levy any tax or cess and any servant of such authority in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(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 and all proceedings in, respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal; other than an appeal pending before the Supreme Court, shall abate on such establishment: 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, Majlis-e-Shoora (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. "
8-B.. The total effect of the provisions of Article 212 is that matters relating to the terms and conditions of service of a civil servant, including his transfer and posting fall within the exclusive jurisdiction of the appropriate Service Tribunal and the same cannot become subject-matter of position under Article 199 of the Constitution before a High Court. The ouster of jurisdiction of High Court and other Courts in such matters is total and express and hence cannot be avoided. These matters stand excluded from the purview of Constitutional jurisdiction of the High Court. A Division bench of this Court, of which I was also a member, has already taken the same view in Munshi Muhammad Azam v. A.C. Etc. 1996 PLC (C.S.) 415. No case-law has been cited before me on the basis of which it may be said that the learned Supreme Court has taken a contrary view. The case of Zahid Akhtar (supra) was also taken note of in the case of Munshi Muhammad Azam. It was observed that in view of the dictum laid down in Zahid Akhtar's case the civil servant has a legal right to challenge the order of transfer on the ground of mala fide, arbitrary, or fanciful exercise of authority by the departmental authorities in such matters. The relevant observations are reproduced below:--- Learned counsel for the petitioners submitted 'that Service Tribunals in a number of cases did not interfere in the matters of transfer of a civil servant when appeal was brought before it by holding that under section 9 of Civil Servants Act, 1974 no civil servant has a right as regards his posting and transfers. In view of the observations made in Zahid Akhtar's case (supra); by the Supreme Court in our view a civil servant has a right to challenge the order of transfer on the grounds of mala fide or arbitrary or fanciful exercise of authority under the rules and the instructions issued by the Provincial Government to regulate the exercise of power by the departmental authority in such matters. If it is established before the Service Tribunal that the order passed by the departmental authority lacked bona fides or was otherwise arbitrary, fanciful or capricious, then the same can be struck down irrespective of the fact that civil servant under section 9 of the Act could be posted against any post. It is the right of every civil servant to be dealt with in respect of terms and conditions of service including the transfers and posting in accordance with the rules and the instructions and not otherwise. We may, however, be not understood to hold that the right of the civil servant is so absolute that it can under no circumstances be abridged by the competent departmental authority. The rules and the instructions have to be faithfully followed, subject to service discipline and to cater cases of hardship in the exigencies of service. But such an order passed in departure from the rules and the instructions will always be open to scrutiny by the Service Tribunal who can review the same in the objective reality of the circumstances of the particular case."
It may be pertinently observed that in Munshi Muhammad Azam's case it has also been held that an order of transfer of a civil servant can straightaway be challenged before the-appropriate Service Tribunal without first exhausting the remedy of representation in the hierarchy of the department. Thus the remedy before the Service Tribunal is immediate, adequate and equally speedy. The observations, with regard to the right of the civil servant to file appeal directly in the Service Tribunal are reproduced below:--- "Those original orders of the departmental authorities against which no appeal has been provided,' have been termed as the original final orders whereas in those cases where appeal lies, the order passed in appeal is the final older. The order of the Departmental Authority of the transfer of a civil servant is such against which under the said rules no departmental appeal lies before the high authority therefore, the said order against the aggrieved civil servant if he wants to get relief in the form of interim order for suspension of the same tray immediately approach the Administrative Court or Tribunal without exercising the privilege of filing a representation as under the law the filing of the same or the decision trade thereon does not have the effect of destroying the finality of the order passed by the Departmental Authority to make it appealable before the Administrative Court or Tribunal. In our view, therefore, the aggrieved civil servant in the case of an order of the nature against which no departmental appeal lies before the Administrative Court or Tribunal directly and in other cases where the appeal lies the aggrieved civil servant may apply to the Departmental Appellate Authority to pass an interim order regarding, implementation of the impugned order during the pendency of the appeal which magi considered by the appellate authority on its own merits. This being so, the argument that the aggrieved civil servant was left with no remedy immediately before the Tribunal against an order of transfer has no force. "
9. I may say with utmost respect that the effect of the judgment delivered in the case of Zahid Akhtar (supra) by the honourable Supreme Court is that the transfer policy of the Punjab Government has the status of a rule and the Ministers have no authority to direct the transfer orders of civil servants. It was further declared in that case that the Government Transfer Policy must be adhered to while making transfer orders. At the best it is a declaration of law with regard to the status of Transfer Policy and powers of the departmental and extra departmental authorities.
Indeed to that extent it is binding and every one must follow the Transfer Policy in the, light of the guidelines given by the Supreme Court. Another important result of Zahid Akhtar's case is that it can no longer be said by the Service Tribunal that a civil servant has no legal right to challenge the order of his transfer and posting in view of the provisions of section 9 of the Punjab Civil Servants Act. Transfer Policy of the Government now has the status of law and its contravention is justiciable before the Service Tribunal, which can grant appropriate relief in suitable cases. But so far as the question relating to the form before which a civil servant should make his grievance against a transfer order passed in violation of the law so declared is concerned, nothing has been said in this case. Thus on the basis of this judgment it is not possible to hold that High Court has jurisdiction to interfere in transfer matters. Similarly Akhlaq Ahmad's case (supra) also does not lay down that this Court has jurisdiction in matters relating to civil servants. This order was passed on the basis of concession made by the Advocate-General and does not give any decision regarding the jurisdiction of the High Court which was left to be determined by this Court.
10. It was also contended by the learned counsel with reference to the case of Pir Sabir Shah v.
Government of N.-W.F.P. (PLD 1994 SC 738) that transfers which are based on the directives or under the influence of M.N. As./M.P.As./Ministers are mala fide and coram non judice and, therefore, such orders are amenable to the writ jurisdiction of this Court. This submission may be valid in respect of other executive orders but it cannot be accepted in respect of matters relating to the terms and conditions of service of the civil servants whose cases have to be adjudicated by the appropriate Service Tribunal alone, in view of the express provisions of Article 212 of the Constitution. It must be understood that Article 199 is "subject to the Constitution" and powers thereunder can be exercised subject to the other provisions of the Constitution. So far as the question of mala fide are concerned, the same have to be agitated before and determined by the appropriate Service Tribunal and not by the High Court in writ jurisdiction. Such is the import of the decision of the honourable supreme Court in Rana Muhammad Sarwar v. Government of Punjab, through Secretary, SGA&ID and another (1990 SCMR 999). It was alleged in this case that a post had been abolished mala fide by the Governor who was the competent authority, with a view to deprive the petitioner of his post and emoluments and his status. On these allegations it was contended before the Supreme Court that appropriately it was a case "entertainable by the High Court in Constitutional jurisdiction and not one which can be taken to the Service Tribunal". This contention was repelled and it was held that the Service Tribunal in view of Article 212 of the Constitution had the exclusive jurisdiction in the matter. Regarding the mala fides it was observed as follows.___ "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 those cases where personal bias, grudge, or vindictiveness is the promoting force for action obtensibly 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 reported in the 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. "
11. The upshot of the above discussion is as under:---
(i) Transfer matters of civil servants relate to the terms and conditions of their service and the same fall within the exclusive jurisdiction of the appropriate Service Tribunal. Jurisdiction of the High Court under Article 199 of the Constitution stands specifically barred by express provisions of Article 212 of the Constitution in such matters.
(ii) Where the transfer order is passed by a departmental authority but the same is passed on the direction of an extra departmental authority i.e. M.N. A./M.P.A./Minister or on any other extraneous consideration, then such an order will also have to be agitated before and decided by the appropriate Service Tribunal; (i.e) A transfer order by a civil servant can be impugned in appeal directly before the appropriate Service Tribunal, without first assailing it before higher departmental authorities.
(iv) Where an order of transfer/posting is made by an incompetent extra departmental authority e.g. By an M.N. A./M.P.A./Minister without the support of a formal order by the competent departmental authority, then such an incompetent order can, however, be assailed in writ jurisdiction.
(v) A civil servant against whom an order of transfer and posting has been passed in violation of the transfer policy or on mala fide considerations, is vested with legal right to challenge the same before the Service Tribunal notwithstanding the provisions of section 9 of the Punjab Civil Servants Act.
12. For what has been discussed above, these petitions are dismissed in limine, being not maintainable.