ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. D – 3943 of 2013

Date

Order with signature of the Judge

1. For Katcha Peshi.

2. For hearing of CMA No.25880/2013.

3. For orders on CMA No.3884/2014.

24.02.2014 :

Mr. Muhammad Arshad Khan Tanoli, Advocate for the petitioner.

Mr. Muhammad Ali Hakro, advocate for respondent No.3.

Mr. Muhammad Jaleel Zubedi, A.A.G.

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Through this Constitutional Petition, the petitioner has challenged the notification dated 25.09.2013 whereby he was transferred third time. According to him the said frequent transfer orders are illegal.

The respondent No.3 has filed comments in which preliminary legal objection has been taken that being a civil servant the petitioner cannot approach this Court and the petition is barred under Article 212 of the Constitution of Pakistan. The same view has been taken by the learned AAG that the proper remedy for the petitioner is to approach Service Tribunal as transfers and posting is one of the terms and conditions of the service. Learned counsel for the petitioner submits that petitioner has been frequently transferred five times within a short span of time. If he will file the representation, he has to wait for 90 days, but due to frequent transfers of the petitioner he cannot approach the Service Tribunal as required under Section 4 of the Service Tribunal Act, 1973, so he submit that there is no alternate and efficacious remedy available to the petitioner, hence this Court under its Constitutional jurisdiction has been approached with the prayer to restrain the respondents from further transferring the petitioner.

After hearing the arguments it is clear that the petitioner is a civil servant, but the main question is that whether question of frequent transfers and posting can be entertained by this Court or not in its Constitutional jurisdiction? The learned counsel for the petitioner has cited 1998 P.L.C. (C.S.) 1321, which is a judgment rendered by a Single Bench of the Azad Jammu & Kashmir High Court in which vires of Section 4 of Service Tribunal Act were under challenge and finally in Azad Jammu & Kashmir the learned High Court has declared clause (a) & (b) of Section 4 of the Service Tribunal Act, 1975 unconstitutional. However, the respondents were directed to decide the representation of the petitioners within three months. We have failed to understand that on the one hand clause (a) and (b) of Section 4 of the Service Tribunal Act, 1975 were declared unconstitutional, but on the contrary the respondents were directed to decide the representation of the petitioner which will ultimately go to the Service Tribunal whether decided or not before 90 days. The above case is distinguishable. Before assuming the jurisdiction under Article 199 of the Constitution this Court has to see the nature of controversy. The transfer and posting is one of the terms and condition of service, hence the petition is barred under Article 212 of the Constitution and the proper remedy lies with the Service Tribunal.

The learned AAG shown us the copy of judgment passed by this same Bench on 23.01.2014 in C.P. No.D-5463/2013, in which also the question of transfer was involved but the petition was dismissed in the following terms:

“8. The cumulative effect of the dictums laid down by the hon’ble Supreme Court in the cases of Asadullah Rashid, Ayyaz Anjum, Muhammad Anis, Imam Bakhsh, Rana Muhammad Sarwar and Peer Muhammad (supra) made quite visible that the petition under Article 199 is not maintainable in relation to any matter connected with the terms and conditions of service and in respect whereof the Service Tribunal has exclusive jurisdiction, even it was held that the High Court before taking any decision regarding the admission of constitutional petition and or passing order granting interim relief will first decide the question of its jurisdiction in view of Article 212 of the Constitution. The matters relating to posting and transfer of civil servant relating to terms and conditions of his service and such dispute will fall within the exclusive jurisdiction of Service Tribunal. Question of posting of Government Servant is squarely fall within the jurisdictional domain of competent authority, Service Tribunal therefore, it has the exclusive jurisdiction to decide such matters. The apex court has further held that the orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of bar contained under Article 212 of the Constitution. Recently, the hon’ble Supreme Court has passed the similar order on 03.01.2014 in Civil Petition No.345-K of 2013. The crux of the order is that while exercising jurisdiction by this court under C.P.C. or even in the Constitution petition, the provision of Article 212 of the Constitution cannot be overlooked which bars the jurisdiction”.

The learned counsel for the petitioner argued that departmental appeal/representation was filed which was not decided by the competent authority within the stipulated period of time and if appeal is filed at this stage before the learned service tribunal, it might have become time barred.

In view of above, this petition is dismissed. However, it is expected that if any appeal is preferred before the learned Sindh Services Tribunal, the question of limitation if any will be decided sympathetically on filing application for condonation of delay. The listed applications are also disposed of accordingly.

JUDGE