2008 P L C (C.S.) 868
[Peshawar High Court]
Before Shah Jehan Khan and Hamid Farooq Durrani, JJ
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.
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.,
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
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-
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
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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