GHULAM MUHAMMAD MALLAH vs PROVINCE OF SINDH through Chief

ALI SAIN DINO METLO, J.--- Petitioner Ghulam Muhammad Mallah claiming to be a social worker, seeks cancellation of transfers and postings of about 200 school teachers made by the respondent No,6, acting as In charge Executive District Officer (Education), Thatta, mainly on the grounds that they were not in public interest and were made during ban. According to him, some teachers were posted at a far distance of about 200 kilometers from their home places and Miss Humera Alwani, a Member of Provincial Assembly of Sindh (M.P.A.), taking serious notice of such transfers, had approached the Chief Minister of Sindh for his removal. According to the petitioner, the transfers and postings had adversely affected the entire system of education in District Thatta. While seeking cancellation of transfers, he also seeks direction for holding enquiry and taking disciplinary action against him.

2. Learned counsel for the petitioner could not show in what way any personal or proprietary right of the petitioner was affected by the transfers and postings of the teachers. He has not claimed that his children were studying in any of the schools from which the teachers were transferred.

Even otherwise he cannot claim any vested right in any particular teacher to teach his children.

3. Transfer of a civil servant is purely an administrative action. It will be very difficult for the Court to determine whether transfer of a particular civil servant is or is not in public interest. The Courts have always shown restraint in entertaining such matters.

4. Transfers of a civil servant is essentially a condition of his service and by virtue of Article 212 of the Constitution, it, comes within the exclusive jurisdiction of Service Tribunal and jurisdiction of all other Courts, including a High Court, is expressly bared under its sub-Article (2). Thus, even the teachers themselves, not to talk of the petitioner, cannot challenge their transfers before this Court.

What cannot be done directly cannot be done indirectly also.

5. In the case of Zahid Akhtar v. Government of Punjab PLD 1995 SC 530, the Supreme Court did not intervene and did not grant leave to appeal against order of the Lahore High Court dismissing constitutional petition of a civil servant challenging his frequent transfers, notwithstanding the fact that the transfers were found to be based on extraneous considerations having no nexus with the exigencies of his service. In the case of Miss Rukhsana Aijaz v. Secretary Education Punjab 1997 SCM R 167 order of the Lahore High Court suspending operation of transfer and posting order of two civil servants on the ground that one was not eligible to be posted in place of the other was set aside by the Supreme Court on the ground that the dispute related to the terms and conditions of their service and the jurisdiction of the High Court was expressly barred under Article 212(2) of the Constitution. In the case of Mst. Shamim Akhtar v. Government of Pakistan PLD 1991 Lah. 389 transfer of Mst. Shamim Akhtar, a school teacher, was cancelled on the desire of M.N.A. And M.P.A.

The Lahore High Court declined to interfere on the ground that it was an order of administrative nature. In another case also re: Sarfraz v. Secretary to Government of Punjab, Health Department, reported in 2001 PLC (C.S.) 1291, the Lahore High Court declined to entertain a constitutional petition filed by a social worker, challenging, pro bono public, legality of an order, passed on the intercession of a Minister, cancelling transfer of a lady civil servant, against whom there were lot of complaints.

6. The petitioner seems to be a public spirited keen watch-dog interested in good governance. The proper course for him will be to approach the concerned functionaries of the Government in its hierarchy. The matters, which are purely administrative in nature and pertain to the terms and conditions of service of civil servants are not justiciable before this Court. It was for these reasons, that the petition, being not maintainable, was dismissed summarily by a short order passed on 13- 8-2008.