Dr.M.Ali Khan Vs Govt of KP

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) W.P. No. 556- N2025

Dr. Muhammad Ali Khan (Petitioner/s)

VS

Government of Khyber Pakhtunkhwa, through Chief Secretary, Peshawar and others.

(Respondent/s)

Present: Mr. Junaid Anwar Khan, Advocate for the petitioner.

Date of hearing: 29.05.2025

JUDGMENT

SADIO ALI, I- Through the instant writ petition, the petitioner has prayed as under;

"On acceptance of the instant Writ Petition, impugned notification bearing No. 1594- 99/1,{otification dated 30.04.2025 issued by the respondents and consequently transfer of the petitioner from Benazir Butto Shaheed d Memorial Teaching Hospital, Abbottabad to Directorate General Health Services, Khyber Pakhtunkhwa, Peshawar and appointment/transfer of the respondent No. 5 at the place of the petitioner may please be declared as wrong, illegal, against the law and facts, arbitrory, fancful, perverse, against the fundamental rights of tlrc petitioner hence being unconstitutional, be struck down and the notification bearing No. 3 I 532-40/Notification dated 13.12.2023 n'ray please be restored and the services of the petitioner may graciously be

re-instated/retained at Benazir Bhutto Shaheed Hospital, Abbottabad or any other writ, order or relief as this Honourable Court deems fit and appropriate in the circumstances of the case, may also be issued/passed. "

2.In essence, the petitioner is aggrieved from his transfer. Learned counsel for the petitioner admiued the factual position that the impugned order is with respect to terms and conditions of service of the petitioner, however, the main grievance of the petitioner in the instant petition is that the respondents, while issuing the impugned transfer order, have violated clause-I, IV and XIII of the Transfer/posting Policy of the Government of Khyber Pakhtunkhwa, as the petitioner has been transferred prematurely from his current post.

3.Arguments of the learned counsel for the petitioner were heard in considerable detail and the record perused dil

4.The perusal of the available record reveals that'the matter essentially pertains to the transfer of the petitioner, who is admittedly a civil servant and the prayer set out in the petition pertains to terms and condition of her service. Section 10 of the Civil Servants Act, 1973 provides that a civil servant

I

J

can be transferred anywhere in the province. The provision reads as under:

"10. Posling and transfers. - every civil servant shall be liable to serve eyerwhere within or outside the province in any post under the Federal Government, or any Provincial government or local authority, or a corporation or body set up or estctblished b1, qn, such Governrnent.

Provided that nothing contained in this section sltall apply to a civil servant recruited specifically to serye in o particular area or region:

Provided further that wlrcre a civil servant is required to serye in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would ltave been entitled { he had not been so required to serve. "

5: However, the civil servants have not been d,t' left remediless by the legislature, rather a proper forum for adjudication of such issues, has been constituted by the Government i.e. the Service Tribunal, where the aggrieved civil servants could seek their desire remedies. Despite a clear bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, the civil servants try to approach other forums,

s 4

particularly this Court, in its constitutional jurisdiction.

In the case of "Ali Azhar Baloch and others ys. Province of Sindh and others" reported as 2015 SCMR 45O, it was held by the apex Court that "Article 212 of the Constitution of Islamic Republic of Pahistan, 197j, ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to Civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command and, therefore, of necessity restricts the jurisdictton of Civil Courts and High Courts on the subject, which squarely falls within the d- exclusive domain of Tribunal. " Similarly, in the case of *Chief Secretary Government of Punjab, Lahore and others Vs. Ms.

Shamim Usman" (2021SCMR 1390), the honourable Supreme Court of Pakistan was pleased to caution the High Courts not to transgress the bar on its jurisdiction under Article 212 of the constitution, by holding;

"The High Court had no jurisdiction to entertain any proceedings in respect of

terms and conditions of service of a civil servant which could be adjudicated upon by the Service Tribunal. The High Court as a Constitutional Court should always be mindful of the jurisdictional exclusion contained under article 212 of the constitution. Ary transgression of the such constitutional limitation would render the order of the High Court void and illegal."

In the case of "Federation of Pakistan through Secretary Establishmenl v. M. Labib ur Rehman and others, (2021 SCMR 1554)", the Supreme Court ruled:

"It is now established that any matter relating to terms and conditions of J service is within the domain of administrative courts and tribunals established under Article 212 and even if the element of mala fides, ultra vires or corom non judice is pressed into, the sqme can be entertained and decided by the said courts in rts jurisdiction. There is no denial to this fact that the bare readtng of the said Article rs of significant importance especially with reference to its exclusive jurisdiction to entertain matters relating to terms and conditions of service. Hence, in all eventualities qny petition relating to terms and conditions of service is to be

Mnrot ttorupts Dqto ttro to uor4crpntnf aW a&up{u1 ,to antta4ul 4ou toru taqt wqt saqaswaql r{st1os lsnru uorycrpsttnf puouniltsuoC Sutsrc"taxa aUqM sLtnoc tor"odns aq1 'to1d ,t1ol puo antsn[ to uolto"ttsrutrupo atos tot Surpuowap o.r ,s/ I a.DqM uor4rccrlddn s4 .tot ruoo,t aruos Surtoa1 nsuas op!"tts pafDt.mc aq louuac uot4ctpntnf puouryusuoC aqt' a cuaq' pa1uo"l,to tvt o s fi sa cual sutnc,.tt c ttourp.too4xa u! paslc,Dxa aq of q qcruu't.ruurptooqxa so pa,taptsuoc sr(oot1o sl uor4ctpn"tn[ lDuognillsuo) aqJ 'uno) q?ry aW arclaq uollctpst,tnf puor4nrytsuoJ u! uorysanb uL pailDc aq touuoc sansst aclLJas aw saryll2nlua^a ilD u! wry rQutouac qfiM prcs aq puuac lt 'arcta.taql 'rbp @ top 8utttol.8 y aruDS aqt puD cllots tou s! Mq aqt ryqt uosaa.t ary to asnCIcaq slsoq asoc ol asDc uo sacuo$runcilc puo s4col aql uodn Swpuadap suoqdacxa uloLtn a",to a"taqJ 'uouniltsuoS aqtto 661 apu"tv "Dpun Lmo) qZry aqt Smpnlcut sunoc .taqto /o uotplpst.tn{ ary patsno atoq uorstd,otd prus aqt 8ut\"osut aUq,L uorynfl$uo3 aqt to snruo{ aqt 'a1dnurtd pnua8 D sV 'uotrufitsuo) aW lo ZIZ apq"tVto acuonstnd ur uotloctpnfpp sg1 .tot paqstnotsa tlpcgftcads slounQ!,rt pu? st.,moc agtD"qslu!rup? rQ qllu tpap

in ony monner when an equally fficacious/adequate remedy is available under the statute for the redressal of the grievances of the litigants. Hence, the superior courts should be reluctant to frustrate the statutory remedies while exercising their Constitutional jurisdiction, which otheruvise has to be exercised sparingly while enabling to advance the legislative intent. "

Reference may also be made to the cases of "Peer Mahommad vs. Government of Baluchistan through Chief Secretary and others, (2007 SCMR 54) and Kalimullah Kakar and others v. Provinciul Police Officer, Balochistan and others, (2021 SCMR 1168)". In a very recent judgment, in the case of "Muhamntud Hassanullah (OMG/B-18), Acting ;l

df Additional Secretary, Health Depurtment Balochistan V. Chief Secretary, Government of Balochistan, Quetta qnd another" (2025 SCMR 134), the apex Court has held that Article 212 of the Constitution, beginning with a non obstante clause, grants exclusive jurisdiction to administrative tribunals over matters relating to the terms and conditions of service of civil servants, including transfers and

disciplinary actions. This jurisdiction overrides that of High Courts under Article 199, even in cases alleging mala fide, lack of jurisdiction, or violation of fundamental rights. The Tribunals Act, 1974 provides a complete mechanism for redress of such grievances.

Therefore, civil servants must approach servlce tribunals, not High Courts, for service-related disputes.

6.Since the matter essentially pertains to the terms and conditions of service of the petitioner, therefore, this Court does not deem it appropriate to take cognizance of the matter. Accordingly, this petition stands dismissed in limine. However, we expect from the respondents that they would follow the Transfer/ posting policy of the Government of Khyber Pakhtunkhwa, in its letter and spirit.

Announced

Tufail./* tuNn

JU GE

(Ory Ur. Justice Sadiq Ali and Mr. Justice Syed Mudasser Ameet