Naheed Jan VS Additional Chief Sec. (FATA) Secretariat KPK Peshawar

2013 P L C (C.S.) 153 [Peshawar High Court]

Before Waqar Ahniad Seth and Shah Jehan Akhundzada, JJ

NAHEED JAN

Versus

ADDITIONAL CHIEF SECRETARY, (FATA) SECRETARIAT, KHYBER

PAKHTUNKHWA, PESHAWAR and 2 others

Writ Petition No.1875-P of 2012, decided on 15th August, 2012.

Civil Servants Act (LXXI of 1973)---

----S. 10---Constitution of Pakistan, Arts.212 & 199---Civil Service---Constitutional Jurisdiction of High Court---Scope- Transfers/postings of civil servant---Petitioner impugned order for his transfer from Hospital on the ground that the same was violative of the spousal policy of the Provincial Government---Validity---Article 212 of the Constitution created a specific bar on the High Court to give relief to the petitioner---Transfer and positing was one of the conditions defined in Chapter II S.10 of the Civil Servants Act, 1973; and therefore, High Court lacked jurisdiction to entertain constitutional petition challenging order for transfer or posting--- Constitutional petition was dismissed.

Noor Muhammad Khattak for Petitioner.

ORDER

WAQAR AHMAD SETH, J.--- Petitioner has called in question order dated 2-5-2012 vide which he has been transferred from Civil Hospital, Jamrud Khyber Agency (FATA), in violation of spouse policy of the Government in field.

2.Learned counsel for the petitioner contended that petitioner joined the Health Department in the year, 2002 as Dental Technician in BPS-9 and he served the department quite efficiently and upto the entire satisfaction of the superior; that being bona fide resident of Khyber Agency, petitioner and his wife, who is an employee of Education Department, are posted in the same Jamrud Khyber Agency but vide impugned office order dated 2-5-2012, allegedly on the pretext of unwilling worker, he has been transferred from Civil Hospital Jamrud and surrendered at the disposal of Director General Health Services, Khyber Pakhtunkhwa for further posting.

3.Record scrutinized, which reveals that against the impugned order of transfer petitioner has submitted his representation dated 4-5-2012 before the Director Health Services, reply to which is awaited, hence this writ petition.

4.Arguments heard and record perused.

5.No doubt, there is a well settled spouse policy under which the petitioner has the cause of action and locus standi to claim his rights but it is to be seen that whether Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 can be put in motion in this respect.

6.We have given thorough consideration to the contentions and circumstances narrated in the writ petition but are of the view that Article 212 creates a specific bar on this Court to give relief to the petitioner in the given circumstances. Article 212 reads as under:---

(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.

7.Section 4 of N.-W.F.P. (Khyber Pakhtunkhwa) Service Tribunal Act, 1974 provides a complete package to the petitioner in such like circumstances which reads as under:--- Appeal to Tribunals.--- Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal; whichever is later, prefer an appeal of the Tribunal having jurisdiction in the matter.

8.Since posting and transfer is one of the terms and conditions of civil servant as defined in Chapter-II section 10 of Civil Servants Act, 1973, therefore, this Court lack the jurisdiction to entertain the writ petition challenging the transfer/posting order.

9.In view of the above, this writ petition is dismissed. However, petitioner is at liberty to file appeal before the competent forum within the requisite time, as required under the law. Order accordingly.

KMZ/272/P Petition dismissed.