Hayatullah Khan Vs Secretary Communication & Works Department (C&W) Khyber Pakhtunkhwa & others

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JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT, BANIYU

BENCH

(Judicial Department)

W.P. No.439-B/2022

Hayat Ullah Khan Petitioner

Versus.

Secretary Communication & Works Department (C&W) Khyber Pakhtunkhwa, Peshawar and another ...... .......Respondents.

JUDGEMENT

Date of hearing: 16.08.2022.

For petitioner: - Mr. Khalid Khan Mama Khel, Advocate.

MUHAMMAD FAHEEM WALL J.- Hayat Ullah Khan, petitioner through the instant petition has invoked the constitutional jurisdiction of this court u/a 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:-

"On acceptance of this writ petition, the impugned transfer orders dated 902.06.2022 and 07.06.2022 issued by the respondent No.I may kindly be declared as illegal, void ob initio, null and void, of no legal effect and be set aside immediately and any other relief which this Hon'ble court deems appropriate may also be gronted to the petitioner."

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2, Brief facts of the case are that the petitioner is serving the Communication and Works department as Sub Divisional Officer and being victim of repeated transfers made by the department within a short period of time, he knocked at the door of this Court.

3.Arguments heard, record perused.

4.From perusal of the documents annexed with the petition and the grounds mentioned therein, it transpired that the main grievance of the petitioner is regarding his periodical transfer from one place to another within short span of six months and the department without assigning any cogent reasons have tumed the petitioner into a rolling stone and is not allowing him to settle down and t perform his duties to the best of his ability, therefore, such conduct of the respondent is against law, equity and good conscious, therefore, needs to be corrected according to law by interference of this Court.

5.There is no doubt that the petitioner is admittedly a civil servant and is governed by the terms and condition of a civil servant as mentioned in the Civil Servant Act, 1973 and section l0 of the ibid Act being the main ingredient that pertains to the posting and transfers of the civil servant is hereby reproduced for ready reference:-

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"10. Posting and transfers.--- Every civil servant shall be liable to serve anywhere within or outside the Province in any post under the Federal Govemment, 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."

6.According to section 10, desired posting is not the perpetual right of a civil servant and the department concerned can transfer any civil servant to serve at the given place as mentioned in the transfer/posting order, while the civil servant cannot refuse compliance. Though, a ground for malafide can be based and agitated against an arbitrary, fanciful posting order based upon ill-will and inherent biases of the superior authorities, but the same cannot be agitated in the writ petition as a proper forum has already been provided by the law for the civil servant before the Service Tribunal. The postings/transfers being one of the terms and conditions of service, the same could only be agitated before Service Tribunal established under Service Tribunal Act, 1974 by following the procedure, prescribed therein for

filing of appeals and not through a writ petition. The same view has been held by the august Supreme Court of Pakistan in a case titled uNozir Hussain, (Ex-Director Excise & Taxation), Administrator, AUQAF,

^WFP,

Peshawar Vs NWFP through the Chief Secretary/Secretary, Services & General Administration "Department, Gov.: of NWFP Peeshawar and 2 others (1992 SCMR 1843), which is reproduced hereunder:- "Under section l0 of the N.-W.F.P. Civil Servants Act, 1973 any civil servant is liable to transfer anywhere within or outside the province to -any post under the Federal Government or any Provincial Government 'or local authority or corporation or body set up or established by any such Government and the Government employee, cannot object to his transfer. In the present case the petitioner was transferred from the post of Director, Excise and Taxation by the Government of N.-W.F.P. and in his place respondent was posted. This was within the power of the transferring authority and could not be legally assailed by the petitioner. "

Similar, view has also been held in a case titled "Muhammad Sajjad Vs Federation of Pakistan & others" (2021 SCMR 1060 and "Syed Afzal Ahmad Hydari Vs Secretary Defence Production Division, Ministry of Defence, Rawalpindi & 3 others" (!99L

SCMR 477).

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7.The above view point is also fortified by article 212 of the Constitution of Islamic Republic of Pakistan, 1973, where in sub article-Z begins with a non-obstante clause wherein, after establishment of any administrative court or Tribunal, in this case the Service Tribunal, 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

8.There being a Constitutional and legal bar in entertaining these proceedings for which special Tribunals have already been established in the form of altemate adequate remedy, therefore, article 199 of the t Constitution of Islamic Republic of Pakistan, 1973 also puts an embargo to assume jurisdiction and enter into the domain of other constitutional bodies established specifically for the purpose. In holding such an opinion, guidance has been sought from the case law reported in 2007 SCMR 54 in case titled "Peer Muhammad Vs.

Govt. of Batochiston through Chief Secretary & others"rwherein it has been held:-

"We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in

Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all .other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters. In this regard we are fortified by the dictum laid down in case Kh. Abdul Wahid v. Chairman, WAPDA 1986 SCMR 1534."

9.When confronted with the situation, an option was given to the learned counsel for the petitioner by treating

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this petition as representation/departmental appeal and forwarding the same to the concerned authorities, but learned counsel for petitioner informed us that departmental appeal in this regard has already been filed before the concerned authorities and sending the same to the concerned quarters or returning the instant writ petition for its presentation before the proper forum would not serve any good purpose

10.For the foregoing reasons, this petition being devoid of any merit stands dismissed in limine, while it

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is expected of the concerned department to decide the

petitioner' s departmental appeal expeditiously.

Announced t6.08.2022 *Imranullah PSa

JUDG

tl yL fu-erc \ d, (D.B) Hon'ble Mr. Juslice Sohibndo Asadullahand Hon'bb Mr. Justlce Muhammad Faheem ll/ali {CrrINF, ,iW