' Through this Constitutional petition Muhammad Saleem, an employee in the Health Department, questioned the legality of order dated 23-10-1996 passed by the Director, Health Services (respondent No, 1), whereby Rana Muhammad Ashiq (respondent No,3) was transferred and posted as Storekeeper against the vacant post.
2. The learned counsel for the petitioner submitted that vide order dated 25-2-1996 the petitioner was directed to take over the charge of C.DC Store and thereafter, the petitioner moved an application for his promotion as C.D.C. Storekeeper in the office of the District Hearth Department, Rahimyar Khan. He further submitted that meanwhile the respondent No, 3 was declared surplus and was posted as Junior Clerk in the office of the District Health Officer, Rahimyarkhan but he managed to get himself transferred from there and his services were placed at the disposal of the Medical Superintendent, D.H.Q. Hospital, Rahimyar Khan for the adjustment against a vacant post of lift operator. Finally, the said respondent was transferred and posted as Storekeeper in the office of the District Health Officer, Rahimyar Khan through the impugned order. The learned counsel referred to Photostat copies of two letters dated 6-10-1996 and 16-10-1996 purported to be issued by Ch. Iftikhar Ahmad Gujjar; General Secretary, Pakistan Muslim League (Nawaz Group) for the transfer of the said respondent. The learned counsel for the petitioner maintained that the impugned order being the result of political influence was illegal, without lawful authority and inoperative upon the rights of the petitioner. He relied upon the case of Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973) and contended that the order. Passed in favor of the petitioner could not be withdrawn or rescinded after it had 'taken the legal effect and created certain rights in his favor.
3. There is no force in the contentions of the learned counsel for the petitioner. It may be pointed out at the very outset that the matter of the eligibility of the civil servant to promotion to a higher post clearly fall within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of the High Court in such matters is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. In the case of Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) it was observed as follows:-- "The other judgment of this Court on the question or jurisdiction of the Service Tribunal to examine the validity of Service Rules and Notifications and the eligibility for promotion to higher posts in the case of Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539. It was held that ' the above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and therefore the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it' ."
' It was also held:-- "It was further Observed that 'the respondent was claiming protection of the terms and conditions not of his service but that of the higher post. He could not have any vested right in respect of the terms and conditions of a post which was higher to the one which he was holding.': ' In the case in hand, the respondent No, 3 after being surplus was accommodated against his original post of Storekeeper in BS-5 at GHQ Hospital, Rahimyar Khan where he was working prior to his becoming as surplus. Muhammad Saleem petitioner was temporarily posted against the vacant post of Storekeeper and he could claim no vested right for the higher post. The respondent No, 1 categorically denied any political influence in the posting and transfer of respondent No,3. The so-called letters of Ch. Iftikhar Ahmad Gujjar are just photocopies and can be prepared fictitiously by any one There is nothing to show that these litters-were received by any official of Health Department. The ruling cited by on behalf of the learned counsel for the petitioner (i,e, Sher Muhammad's case PLD 1991 SC 973) is not applicable to the facts of the case in hand. Moreover, this case was heard 'in appeal from the Chairman of the Sindh Services Tribunal, which means that in cases of promotion etc. The remedy is by way of appeal to the Service Tribunal and not through the Constitutional petition. This writ petition is also not maintainable as the petitioner did not avail the departmental remedy in the first instance.
5. In view of the above, the writ petition is dismissed in limine being not maintainable in law.