In this petition under Article 199 of the Constitution the petitioner, who was posted as Chief Corporation Officer, Municipal Corporation, Multan, has challenged his transfer order dated 10-8- 1998 on the ground that the same has been passed at the instance of a Provincial Minister, Punjab for the adjustment of respondent No,3. His further grievance is that he has been transferred during the last 20 months on 6 occasions from one place to the other contrary to the policy.
2. Learned counsel for the petitioner contends that the order of transfer is without lawful authority, having been passed at the instance of a Provincial Minister, Punjab and is liable to be declared as such in view of the principle laid down by their Lordships of the Supreme Court in PLD 1995 SC 530, commonly known as Zahid Akhtar's case. It is contended that the transfer has been ordered in violation of the policy as it could be ordered only after the completion of three years tenure which has not as yet been completed by the petitioner. He has placed reliance on Syed Mazhar Hussdin Bukhari v. Secretary to Government of Punjab, Local Government and Rural Development Department Lahore and 2 others (1996 SCM R 59) and Akhlaq Ahmad v. Secretary to Government of Punjab, Local Government and Rural Development Department and others (1998 SCM R 516) and the order of their Lordships of the Supreme Court, passed in Constitutional Petition No,77 of 1998. On the strength of the aforesaid precedents, it is contended that this Court has still a jurisdiction and can interfere in transfer matters where the order is result of some political intervention. It is furgther contended that the transfer has not been made for any administrative reason or grounds.
3. The learned Additional Advocate-General as well as the learned counsel for the respondent No,3 has raised objection to the entertainment/competency of the writ petition by this Court in view of the bar of Article 212 of the Constitution. It is contended that the petitioner has the remedy of making representation before the higher authority and thereafter to file an appeal before the Service Tribunal under section 4 of the Service Tribunal Act, 1974.
4. Admittedly, the petitioner is a civil servant. The order impugned in this petition has been passed by the Secretary, Local Government, Punjab who is the competent Authority. There is nothing on record to suggest that the said order has been passed at the instance of any politician or a Minister. He is the competent Departmental Authority who has passed this order. The assertion of the petitioner in Paragraph No, 9(ii) that the order has been passed under the dictation of a Provincial Minister, has categorically been denied in the comments, filed by the respondents Nos. 1 and 2. It is also stated in the comments that the order has been passed due to the exigencies of service, in public interest, and on administrative grounds. In this view of the matter, when there is nothing on record to suggest to the contrary the order of transfer is presumed to have been passed in public interest due to the exigency of service.
5. The dictum of their Lordships in Zahid Akhtar's case in view of the aforesaid is not applicable as in the said case, it was established on record that repeated transfer orders had been made at the instance and intervention of the public representratives/M.P.As. and Ministers. However, the petitio. n was dismissed by their Lordships. There are few later judgments/orders of the Supreme Court on the subject as well. In Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department and others (1997 SCM R 169), the transfer order was challenged before the High Court and its operation was suspended against which the petition for leave was filed before the Supreme Court. It was observed that the matter relating to the postings and transfers of the civil servants relates to the terms and conditions of the service and disputes arising there about fall within the exclusive jurisdiction of the Service Tribunal as the jurisdiction of the High Court is barred by the express provisions of Article 212(2) of the Constitution. The petition for leave was converted into appeal. The interim order passed by the High Court was set aside and the High Court was directed to first determine the question of its jurisdiction. This case was decided on 24-4-1996. In Miss Rukhsana ljaz v. Secretary, Education Punjab and others (1997 SCM R 167), the interim order passed by the High Court suspending the operation of a transfer order was challenged before the Supreme Court. After noting that the transfer/posting is a matter relatable to the terms and conditions of service which falls within the exclusive jurisdiction of the Service Tribunal the jurisdiction of the High Court is excluded by virtue of express provisions of Article 212(2) of the Constitution, the interim order issued by the High Court was set asside by their Lordships and it was directed that the High Court in the first instance should decide the question of jurisdiction before passing any order. This case was decided by their Lordships on 20th November, 1996. In the case of Akhlaq Ahmad (supra) which was decided on 16-4-1996, the dismissal of Constitutional petition by the High Court was challenged before the Supreme Court which was remanded by their Lordships to the High Court for decision in accordance with law in view of the law laid down in Zahid Akhtar's case. In Syed Mazhar Hussain Bukhari's case, leave was granted by the Supreme Court on 20-9- 1995.
5-A. It is evident from the review of the recent judgments i,e, Ayaz Anjum's case and Miss Rukhsana Ijaz's case that them matters relating to the terms and conditions of service of a civil servant eminently fall within the exclusive jurisdiction of the Service Tribunal set up in pursuance of Article 212 of the Constitution and the jurisdiction this Court under Article 199 of the Constitution has been expressly excluded.
6. The order of their Lordships of the Supreme Court in Constitutional Petition No, 77 of 1998, dated 4th May, 1998 is passed on an undertaking by the Secretary of the Department and it has nowhere been laid down that the High Court has jurisdiction in matters of transfers under Article 199 of the Constitution or that the express bar of jurisdiction under Article 212 of the Constitution is not attracted.
7. The various objections to the transfer order such as that the same is violative of the transfer policy or whether the same has been passed by the competent Authority on the dictation of someone else and not in public interest can be adequately dealt with by the higher departmental authority/Service Tribunal in case of challenge by the aggrieved person.
8. In view of the above, this petition is not competent before this Court which is dismissed accordingly.