2008 P L C (C.S.) 868

[Peshawar High Court]

Before Shah Jehan Khan and Hamid Farooq Durrani, JJ

MUHAMMAD SAEED

Versus

DISTRICT OFFICER REVENUE AND ESTATE, PESHAWAR and 2 others

 

Writ Petition No.1287 of 2007, decided on 25th October, 2007.

 

North-West Frontier Province Civil Servants Act (XVIII of 1973)---


 ----S. 10---Constitution of Pakistan (1973) Arts.199 & 212---Constitutional petition---

 Maintainability---Civil service---Transfer--Petitioner, who was Halqa Patwari, had questioned his

 transfer order by way of constitutional petition---Validity---Transfer of any civil servant could be

 made by the competent Authority in the exigency of service of public interest, while no civil servant

 had a legal right to remain posted at a particular place---Matter could be agitated by invoking the

 jurisdiction of Service Tribunal in case of mala fide and extraneous considerations to accommodate

 the favourites---Service Tribunal could set aside orders passed by Departmental Authority out of

 malice, even though the relief claimed by a civil servant was not obtainable as of right---Petitioner

 filed departmental appeal against transfer order which had not been decided---Petitioner, after filing

 of appeal, did not wait for its outcome within the statutory period and brought present constitutional

 petition---Constitutional petition was beyond the purview of jurisdiction vested in the High Court

 through Art.199 of the Constitution as same was to be exercised subject to the other provisions of

 the Constitution---Constitutional petition being not maintainable, was dismissed.

 Pir Muhammad v. Government of Balochistan 2007 SCMR 54; 1997 SCMR 167; Muhammad

 Iqbal's case 2007 SCMR 682 and Secretary, Education, N.-W.F.P. Peshawar v. Mustamir Khan 2005 SCMR 17 rel.

 

Mian Muhibullah Kakakhel for Petitioner.

 

Obaidullah Anwar, A.A.-G. and Shakeel Ahmad along with Mir M. Azam Asstt. D.O.R. for Respondents

 

Date of hearing: 24th October, 2007.

 

JUDGMENT

 

HAMID FAROOQ DURRANI, J

 

.--- The petitioner Muhammad Saeed, while posted as Patwari

Halqa at Mathani, was transferred to head office by order, dated 26-7-2007 by the competent

authority while respondent No.3 was transferred instead through the same order.

1. The petitioner, by way of instant constitutional petition, has questioned his said transfer order on

various grounds including the impugned transfer order being managed by respondent No.3 Saeed

Ahmad through application of political pressure. Further, the petitioner was not treated in

accordance with law as his transfer was not made in public interest but was outcome of mala fide on

the part of official respondents and ulterior motive of respondent No.3. That he was transferred

during a span of few months upon the express directions of the Minister Revenue, N.-W.F.P.,

Peshawar.

 

2. At the time of hearing of the petition in hand, learned counsel for private respondent raised

preliminary objection regarding the jurisdiction of this Court in entertaining the petition in hand

under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. In the said regard, the

learned counsel contended that in the light of specific bar contained in Article 212 of the

Constitution, the petition in hand could not proceed as it involved a question pertaining to the terms

and conditions of service of the petitioner which matter was exclusively amenable to the jurisdiction

of Service Tribunal. He relied on the judgments reported through 2005 SCMR 17, 2007 SCMR.54

and 1997 SCMR 167-169-170.

 

3. On the other hand, learned counsel for the petitioner, while attempting to repel the preliminary

objection raised from the other side, argued that the case in hand was clearly indicative of mala fide

and political pressure applied by private respondent in obtaining a favourable posting/transfer order.

In the circumstances, this Court was competent to look into the matter in constitutional jurisdiction

and declare the impugned act of respondents as without lawful authority. In furtherance of his

arguments, the learned counsel referred to comments filed on behalf of official respondents wherein

the allegation regarding passing of impugned transfer order, upon the directions of a Minister, were

admitted correct. He referred to a judgment of this Court passed in Writ Petition 1819 of 2006 in the

case of "Gulzar Ahmad" and stated that this Court had assumed constitutional jurisdiction while

granting relief to the petitioner in circumstances similar to those of instant petition. The said '

judgment was upheld by the apex Court, therefore, in view of the learned counsel the matter was

conveniently amenable to the writ jurisdiction of this Court. He also referred to the case of

Muhammad Iqbal 2007 SCMR 682.

 

4. We would firstly like to observe that the judgment passed in Writ Petition 1819 of 2006 ibid, as

relied upon by the petitioner, involved facts and circumstances which were distinguishable from

those involved in the matter in hand. In the referred case, a Patwari who was already ordered to be

transferred from a place of posting refused to relinquish charge and also managed to pilfer official

record, for which he was being proceeded against departmentally, applied political pressure and

manipulated an order of retransfer within a few days. In the instant case, the petitioner was working

on the post of Patwari Circle at Mathani since 11-9-2006. His transfer order to the said post was

also officially indorsed to P.S. to Minister Revenue, N.-W.F.P., Peshawar amongst others. The

documents attached with the comments by official respondents would reveal that the said posting

was procured under the direction from Chief Minster Secretariat. The impugned transfer order

though also speaks of endorsement to P.S. to the Revenue Minister but for the purpose of

information with reference to his letter dated 27-7-2007 addressed to Senior Member Board of

Revenue, N.-W.F.P. There are copies of some other correspondence available on record which

prompt that the impugned transfer was recommended by the said Minister. In the circumstances, it

would not lie in the mouth of petitioner to object the impugned transfer order on the ground of mala

fide.

 

5. It is to be noted that the apex Court has time and again settled the proposition in terms that the

transfer of any civil servant can be made by the competent authority in the exigency of service of

public interest while no civil servant has a legal right to remain posted at a particular place. In cases

of mala fide and extraneous consideration to accommodate the favourities, the matter can be

agitated by invoking the jurisdiction of Service Tribunal. As held in the case of Secretary Education,

N.-W.F.P. Peshawar v. Mustamir Khan 2005 SCMR 17, the Service Tribunal can set aside orders

passed by the departmental authority wit of mala fide even though the relief claimed by a civil

servant is not obtainable as of right. It has also been laid down in the case of Pir Muhammad v.

Government of Balochistan 2007 SCMR 54 that the question of posting/transfer of a civil servant

would relate to terms and conditions of his service and Tribunal of exclusive jurisdiction may dilate

upon and decide matters pertaining to the said terms while constitutional jurisdiction cannot be

invoked to have the controversies resolved. The provisions of Article 212 of the Constitution oust

the jurisdiction of all other courts while orders of the departmental authority, even though without

jurisdiction or mala fide, can be challenged only before the Service Tribunal. The plea of mala fide

would not confer upon a High Court jurisdiction to act in a matter where the same is ousted through

another provision of the Constitution.

 

6. It is also to be noted that the petitioner filed a departmental appeal addressed to S.M.B.R., N.-

W.F.P., Peshawar against the impugned transfer order which has not been decided as yet. It is

further depictable from the record that the petitioner after filing of appeal did not wait for its

outcome within the statutory period and brought the petition in hand before this Court on 28-7-

2007.

 

7. For what has been discussed above, we, without touching merits of the case of petitioner, are

inclined to hold that the instant constitutional petition is beyond the purview of jurisdiction vested

in this Court through Article 199 as the same is to be exercised subject to the other provisions of the

Constitution.

 

8. The instant constitutional petition was dismissed being not maintainable through short order of

even date and above are the reasons for the same. It is, however, observed that the contents of this

judgment shall not affect the merits of petitioner's cause in any manner whatsoever.

 

H.B.T./23/P Petition dismissed.

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