Ikramullah Khan VS Govt of KPK

2012 P L C (C.S.) 1187

[Peshawar High Court]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

IKRAMULLAH KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary (Elementary and Secondary) Education Department, Peshawar and 4 others

Writ Petition No.475-B of 2011, decided on 1st February, 2012.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Petitioner assailed vires of the notification whereby he was transferred from his post---Validity---- Petitioner had not knocked on the right door by invoking Art.199 of the Constitution---Question of posting/transfer purely related to terms and conditions of government service and Art.212 of the Constitution had explicitly ousted jurisdiction of all courts including the High Court pertaining to service matters and conferred exclusive jurisdiction on the Service Tribunal in that respect---Plea of mala fide as alleged by the petitioner could not confer upon the court the jurisdiction to act in the matter in view of the bar contained in Art.212 of the Constitution---- Constitutional petition was dismissed.

2007 SCMR 54 rel.

Muhammad Shah Nawaz Khan Sikandri for Petitioner.

Ahmad Farooq Khattak, A.A.-G. for Respondents.

Date of hearing: 1st February, 2012.

JUDGMENT

QAISER RASHID KHAN, J.--- The petitioner being aggrieved of the Notification No.SO(S/M)E&SED/4-16/2011/ Ikramullah, dated 17th November, 2011, vide which petitioner was transferred from the post of District Officer (BS-17) E&SE, Bannu and his services were placed at the disposal of Director E&SE Khyber Pakhtunkhwa, Peshawar, has filed the instant petition.

2.Compendium facts as per the writ petition are that the petitioner having a good academic and professional record and while serving as Headmaster (BS-17), Government High School Bizen Khel, Bannu was recommended by School Bizen Khel, Bannu was recommended by the Executive District Officer (E&SE) Bannu (Respondent No.4) for the post of District Officer (Male) vide E.D.O office Endst; No.4221, dated 18-2-2011 and on the said recommendation the respondent No.1 i.e. Secretary E&SE, Khyber Pakhtunkhwa issued a call letter to the petitioner for interview, vide letter No.SO(S/M)E&SE/4-16/2011/DO (Male), dated 2-4-2011. The petitioner appeared for interview held in the office of respondent No.1 and consequently he was posted/transferred as District Officer (Male) E&SE Bannu in his own pay and scale, vide Notification No.SO(S/M)/E&SED/4-16/2010/ Ikramullah Khan, dated 25-4-2011. The petitioner being qualified for the said post successfully worked, but vide impugned notification No.SO(S/M)E&SED/4-16/2011/Ikramullah, dated 17th November, 2011 the petitioner was transferred on administrative grounds and his services were placed at the disposal of Director E&SE Peshawar, Khyber Pakhtunkhwa.

3.Learned counsel for the petitioner argued that petitioner was highly qualified, having got master degrees in various subjects along with LLB; that keeping in view his qualification and legal background, the respondent No.3 recommended him for the post of District Officer (Male) E&SE Bannu and after undergoing the process of interview by a proper panel, he was accordingly appointed and adjusted; that the petitioner during his term successfully pursued hundreds of cases before various courts of law on behalf of the provincial government; that he fulfilled the criteria for the said post as per govt. rules and policy and that is why he deserved to be appointed/adjusted against the post in question, but he was instead transferred and that the impugned order is patently mala fide, issued under political influence, against the tenure policy and being without lawful authority and jurisdiction deserves to be declared a such.

4.Conversely, learned A.A.-G., vehemently opposed the submissions made by learned counsel for the petitioner and argued that the order, impugned by the petitioner, is in accordance with law, requiring no interference and the petition is liable to be dismissed.

5.Without adverting to the other details of the petition, the main grievance of the petitioner stems from the impugned order vide which he was transferred from the post of District Officer (Male) E&SE Bannu and his services were placed at the disposal of Director E&SE Khyber Pakhtunkhwa, Peshawar. We understand that the petitioner has not knocked at the right door by invoking the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan. The question of posting/transfer purely relates to the terms and conditions of service of govt. servants. Article 212 of the Constitution has explicitly ousted the jurisdiction of all courts including High Court pertaining to service matters and has conferred the exclusive jurisdiction on the service Tribunal in this respect. Even the plea of mala fide as alleged by the

petitioner cannot confer upon this court the jurisdiction to act in the matter in view of the bar contained in Article 212 of the Constitution. Reliance may advbanceageously be placed on 2007

SCMR 54.

6.For the reasons stated above, this petition being devoid of merits is hereby dismissed.

K.M.Z./128/P Petition dismissed.