Zia Ullah vs. Govt. of Khyber Pakhtunkhwa through Chief Secretary and others

IN THE PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Office Objection No.46-P/2026 in Writ Petition No.3523-P/2026

Zia Ullah, District Attorney BS-19 presently posted at Health Department, Khyber Pakhtunkhwa, Peshawar.

vs.

Govt. of Khyber Pakhtunkhwa through Chief Secretary and others

For Petitioner: Mr. Asif Yousafzai, Advocate and Miss Naila Jan, Advocate.

For Respondents: Mr. Asad Jan Durrani,

A.A.G.

Date of hearing: 08.04.2026

JUDGMENT

FARAH JAMSHED, J.- The instant matter relates to office objection, whereby objection has been raised regarding maintainability of the instant writ petition on the ground that the controversy pertains to the terms and conditions of service of a civil servant and, therefore, falls within the jurisdiction of the Service Tribunal under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

2.Petitioner, Zia Ullah, District Attorney (BS- 19), has approached this court through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking following prayer.-

i. Declare the inaction of respondents for not deciding the representation/departmental Appeal against the Notification dated 03/02/2026 as per transfer/posting Policy 2009 as illegal and making the cause of the petitioner as fruitless and defective. Hence such inaction and delaying tactics of the respondents are Liable to be held as illegal, unconstitutional and ineffective upon the rights of the petitioner.

ii. Direct the respondents for deciding the representation of the petitioner submitted on 06/02/2026 within 15 days in accordance with para XIV of the Transfer/Posting Policy of the Provincial Government to enable the petitioner to seek redressal from the proper forum.

iii. Any other remedy not specifically prayed for may be awarded in favour of the petitioner.

3.The facts in brief, are that the petitioner is a civil servant presently serving as District Attorney (BS-19). It is his case that after his promotion, he has been subjected to frequent transfers and postings. His grievance relates to his recent transfer to District Kohistan Upper vide impugned Notification dated 03.02.2026. Aggrieved thereof, he filed a representation on 06.02.2026 under the Transfer/Posting Policy, 2009, which, according to

him, has not been decided within the stipulated time, hence the present petition.

4.Learned counsel for the petitioner contended that the impugned transfer is not in public interest, rather it is punitive in nature, based on mala fide and in violation of Transfer/Posting Policy, 2009 and wedlock policy. It is further contended that the inaction of the respondents in deciding the representation of the petitioner has deprived him of his right to seek relief before the appropriate forum.

On the question of maintainability, it is argued that inaction of respondents to decide his representation within the stipulated time are violative of fundamental rights guaranteed under the Constitution, therefore, instant petition is amenable to constitutional jurisdiction of this court under Article 199 of the Constitution.

5.Arguments heard. Record perused.

6.The foremost question for determination is whether the petition is amenable to the writ jurisdiction of this court under Article 199 of the constitution, or not? Admittedly, the petitioner is a civil servant and the grievance raised herein relates

to his transfer and posting, as well as non-decision of his representation against impugned transfer order.

7.The service of petitioner is governed by the Khyber Pakhtunkhwa Civil Service Act (the Act), 1973. Section 10 of the Act expressly provides that a civil servant shall be liable to serve anywhere within or outside the province. For quick reading, relevant extracts are reproduced below .-

S.10. Every civil servant shall be liable to serve anywhere 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 established by any such Government:

Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region:

Provided further that where a civil servant is required to serve 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 have been entitled if he had not been so required to serve.

8.The ibid provision states that transfer and posting are integral incident of service and covered by its terms and conditions.

9.It is settled that transfer and posting of a civil servant constitute service matters. Any grievance arising therefrom, including challenge to transfer order or relief ancillary thereto is essentially a service matter.

10.Article 199 of the Constitution regulating the writ jurisdiction vests the high courts with wide constitutional jurisdiction, however such jurisdiction is subject to the Constitution and the law only in situations where no adequate remedy is available under the law as is clear from the language of the Article 199, which states that: “subject to the constitution, a high court may, if it is satisfied that no other adequate remedy is provided by law.

11.In this context, the non obstante clause of Article 212 of the constitution, provides for the establishment of Administrative Courts and Tribunals having exclusive jurisdiction in matters relating to the terms and conditions of service of persons who are or have been in service of Pakistan.

It reads as under : -

212.Administrative Courts and Tribunals.

(1)Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:-

(a)matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;

(b)matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or

(c)matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

(2)Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends [and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal [other than an appeal pending before the Supreme Court,] shall abate on such establishment]:

Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, [Majlis-e-Shoora (Parliament)] by law extends the provisions to such a Court or Tribunal.

(3)An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.

12.The bar is express, overriding, and jurisdictional in character. Once the matter falls within the exclusive domain of service, the jurisdiction of this court under Article 199 stands excluded. The Constitutional scheme does not permit a civil servant to bypass the statutory forum by styling a service dispute as a constitutional grievance.

13.The contention of learned counsel for the petitioner that the impugned action is mala fide,

violative of policy or fundamental rights does not take the case out of the purview of Article 212. It is settled law that mere allegation of mala fide or violation of policy, without demonstrating jurisdictional defect or coram non judice action, are insufficient to invoke constitutional jurisdiction in service matters1.

14.The reliance placed by learned counsel for the petitioner on the judgment of the august Supreme Court in Anita Turab v. Federation of Pakistan (2013 PLD SC 195) is misconceived and

distinguishable. The said judgment pertains to arbitrary and politically motivated exercise of authority in matters of transfers and postings at a broader policy level, whereas the present case involves an individual grievance relating to transfer/posting of a civil servant arising from petitioner’s own transfer. Such grievance falls within the exclusive domain of service law being related to terms and conditions of service, attracting the restriction contained in Article 212 of the Constitution.

Muhammad Hassanullah (OMG/B-18), Acting Additional Secretary Health Department, Balochistan vs. Chief Secretary, Govt. of Balochistan, & others (2025 SCMR 134)

15.Similarly, the plea that non-decision of petitioner’s representation constitutes an independent cause of action is also without substance for the reason that ancillary or incidental relief cannot be detached from the impugned transfer order and projected as a separate constitutional issue in order to circumvent the constitutional bar of jurisdiction2.

16.It is also a settled principle that transfer is an incident of service and does not confer any vested right upon a civil servant to remain posted at a particular station. Unless the impugned order is shown to suffer from jurisdictional defect, such matters are not open to interference in constitutional jurisdiction, particularly when a law provides statutory remedy before a competent forum. In this case, no such exceptional circumstance has been made out. The controversy relates to terms and conditions of service and is, therefore, barred for adjudication in writ jurisdiction.

17.In view of the foregoing, this Court is of the considered opinion that the instant writ petition is not maintainable in view of the constitutional bar contained in Article 212 of the Constitution.

I.A Sherwani & others vs. Govt. of Pakistan through Secretary Finance & others (1991 SCMR 1041)

18.Consequently, office objection No.46-P/2026 is upheld and, as a necessary corollary, the instant writ petition being not maintainable is dismissed.

The petitioner is, however, at liberty to avail the remedy available under the law before the competent forum, if so advised.

Announced.

JUDGE

JUDGE

Date of hearing and announcement .......08.04.2026 Date of preparation & Signing .............19.05.2026

(DB)Hon’ble Mr. Justice Syed Arshad Ali and Hon’ble Ms. Justice Farah Jamshed (Jebran, C.O)