ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Const. Petition. No.D-761 of 2012

DATE	ORDER WITH SIGNATURE OF JUDGE

02.8.2012

Mr. Habibullah G. Ghouri, advocate for petitioner.

Mr. Azizul Haque Solangi, Assistant A.G.

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Naimatullah Phulpoto, J:- Through this constitution petition, petitioner Mohammad Ibrahim has stated that he is serving as Secretary Union Council (BPS-7) at UC-10, Larkana. He was transferred from UC K.N Shah on 14.10.2010 and was directed to report to Sindh Local Government Board, Karachi. On 14.3.2011 petitioner, awaiting for posting, was posted by Secretary to Government of Sindh Local Government Department at UC K.N Shah. It is stated that due to political and departmental rivalry of respondents the petitioner was transferred on 20.7.2012 and was directed to report to the Board Sindh Local Government Karachi . The petitioner has stated that he has suffered mental agony as the respondents have repeatedly transferred and posted him which is in violation of the fundamental rights guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. Action of the respondents is illegal, malafide and without lawful authority. The petitioner has prayed for the following relief(s).

a) That this Honourable Court may graciously be pleased to declare the action of frequent transfers of petitioner from one place to another place as malafide, illegal, null and void and further direct the Respondents to allow the Petitioner to work as Secretary Union Council K.N Shah where he is posted and is presently working lawfully.

b) To grant permanent injunction restraining the Respondents from causing harassment for the Petitioner so as to his services are concerned by way of his frequent unlawful transfers and postings and restrain the Respondents from displacing and transferring the Petitioner from the post of Secretary Union K.N. Shah, District Dadu.

c) Award costs of the petition.

d) Any other equitable relief be granted to the applicant.

2. Notice was issued to the respondents as well as Additional A.G.

3. With the consent of counsel for the parties without comments petition is heard today

4. Mr. Habibullah G. Ghouri, learned counsel for the petitioner has mainly argued that petitioner has been frequently transferred and posted in the last three years. He submitted that such action of the respondents is without lawful authority, illegal and malafide. This Court is competent to grant relief to petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

5. Mr. Azizul Haque Solangi, learned Assistant A.G argued that transfer and posting of the employee is the part of service and grievance of the petitioner only relates to the terms and conditions of the service and petitioner could have availed remedy before the Tribunal and not before this Court.

6. We have carefully heard the learned counsel for the parties and perused relevant record.

7. From the facts of the petition it transpires that no specific malafide has been alleged against any of the respondents. Transfer of an employee is the part of service and it relates to terms and conditions of service. Under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner can approach concerned Service Tribunal

8. The Honourable Supreme Court of Pakistan in the case of Government of Sindh through secretary Education & Literacy Department and others vs. Nizakat Ali and others in Civil Petition No. K-534 of 2010 dated 27.12.2010observed that in future High Court may determine before entertaining such writ petitions as to whether the jurisdiction to decide such cases is barred under article 212 of constitution, particularly, when the matter pertains to terms and conditions of the employees. In above case, Honourable Supreme Court held as under:-

“Mr. Abdul Fattah Malik, Learned Additional Advocate General, Sindh states that grievance of the petitioner only relates to the jurisdiction of High Court under article 199 of the Constitution in view the complete ouster contemplated under Article 212 of the Constitution. According to him non-payment of salary is one of the Terms and Conditions of service therefore respondents could have availed their remedy before the tribunal and the High Court may have not entertained the writ petition. However, he stated that order of the High Court has been implemented and salaries of respondents are being paid to them regularly.

2. As far as, objection raised by learned Additional Advocate General Sindh with regard to jurisdiction of the High Court to decide the case under article 199 of the Constitution pertaining to the Terms and Conditions is concerned, it seems to be valid prima facie, but in the instant case order has been implemented and it would create hardships for the respondents if any adverse order against them is passed. However, it is observed that in future the High Court may determine before entertaining such writ petitions as to whether the jurisdiction to decide such cases is barred under article 212 of the Constitution, particularly, when the matter pertains to Terms and Conditions of the employees.

Thus with the above observations petition stands dismissed. Leave declined.”

9. Matter of transfer of petitioner pertains to terms and conditions of service of employee and jurisdiction of High Court in such cases is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

10. Thus for our above stated reasons and while relying upon above authority of Honourable Supreme Court, petition stands dismissed.

Judge

Abid Kazi/**