MUHAMMAD AFZAL Versus SECRETARY, LOCAL GOVERNMENT
ORDER
This order shall dispose of W.Ps. Nos. 9726 and 8566 of 1992, in which similar questions and circumstances are involved.
2. Petitioner, Muhammad Afzal is a member of the Punjab Local Government Service and was serving as Sub‑Engineer in Municipal Committee, Mandi Bahauddin from where he was transferred to Gujrat Municipal Committee at his request by Secretary, Local Government on 7th April, 1991. It appears on a complaint made by Municipal Committee, Gujrat, his services were placed at the disposal of Commissioner, Gujranwala on 21st October, 1991, who posted him as Sub‑Engineer in Municipal Committee, Sialkot from where he was transferred to Zila Council, Gujranwala on 21st January 1992.
3. On 31st August, 1992, the petitioner was again transferred from Zila Council, Gujranwaia to Municipal Committee, Pasroor by the Commissioner, Gujranwala. On representation made by the petitioner, the Secretary cancelled he order of the Commissioner on 5th September, 1992. That order was recalled by the Secretary on 16th September, 1992 at the request of Zila Council Gujranwala
4. Writ Petition No. 8566/92 was fled on 15th September, 1992 and came up for hearing before this Court on 16th September, 1992 when a copy of that petition was sent to learned Advocate‑General and status quo was ordered to be maintained. The grievance of the petitioner in that petition was that he was being transferred on verbal orders of the Chairman. In the meantime, the petitioner received copy of the order of the Secretary dated 16th September, 1992 which he challenged by filing W.P. No. 9726/92.
5. Learned counsel for the petitioner, in support of these petitions, has contended that the Secretary, Local Council had, on representation made by the petitioner, cancelled the order of the Commissioner on 5th September. 1992, but, subsequently, under political pressure exerted upon him by the Chairman Zila Council through his brother who happens to be Minister of State in the Federal Cabinet, he withdrew that order on 16th September, 1992. According to the learned counsel, the order passed on 16th September, 1992 stands vitiated on account of mala fides and has not been passed either in public interest or in exigencies of service.
6. Learned Additional Advocate‑General as also learned counsel for the respondents. apart from contesting this petition on merits, have raised an objection as to the maintainability of these petitions on the strength of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 44 of the Local Government Ordinance which provides that members of Local Council Service are deemed to be civil servants under Punjab Service Ordinance, 1974.
7. The jurisdictional objection raised by the learned Additional Advocate‑General is well taken. Undoubtedly, transfer is a matter relating to terms and conditions of services and, therefore, if the petitioners feels aggrieves by any order in relation thereto, he can challenge the same before the Punjab Services Tribunal constituted under the Punjab Services Ordinance, 1974.
8. Ch. Irshad Ullah Chatha, learned counsel for the petitioner has, however, contended that the jurisdiction of the Services Tribunal does not extend to matters of transfer and further that as the order impugned in these petitions is not final in nature, it cannot be challenged in appeal before the Services Tribunal and this Court has the jurisdiction to entertain these petitions.
9. There is no cavil with the proposition that the jurisdiction of this Court is barred only in respect of the matters to which jurisdiction if the Services Tribunal extends. However, I am not in agreement with the learned counsel for the petitioner that the order impugned in these petitions cannot be assailed before the Services Tribunal. Learned counsel has explained that as prior to invoking the jurisdiction of the Services Tribunal, petitioner is required to file representation and wait for 90 days before filing the appeal and as such, the remedy provided by section 4(1) of the Punjab Services Tribunal, as in the meantime, petitioner would be ousted from the place of his posting. That may be so but the fact that the petitioner has to wait for 90 days or that no temporary injunction can be granted to the petitioner during that period of time is hardly a reason for holding that the order impugned cannot be challenged before the Services Tribunal. The bar in the present case as to the maintainability of these petitions is Constitutional in nature and has to be given effect to. The Supreme Court of Pakistan, on more than one occasion, has been pleased to observe that the High Court cannot interfere in the matters of transfer which clearly relates to terms and conditions of services of civil servants.
10. Learned counsel for the petitioner then submits that the order passed against the petitioner is not final in nature and for that reason also, it cannot be challenged before the Services Tribunal. Again this argument is not well founded. So far as transfer is concerned, the order passed by the Secretary oil 16th September, 1992 is final in nature. But even if it is not so, the order cannot be challenged in these Constitutional petitions. See Abdul Wahab Khan v. Government of the Punjab and 3 others (PLD 1989 SC 508).
11. Learned counsel for the petitioner then attempted to argue that as the order has been passed in colourable exercise of the jurisdiction by the respondents the same can be challenged in these petitions. Reliance has beer, placed on Federation of Pakistan through the Secretary, Establishment Division Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151). This argument of the learned counsel is also misconceived. Even if the order has been passed in colourable exercise of the jurisdiction, this question can be raised in appeal before the Services Tribunal which is competent to adjudicate upon the same:
In view of what has been stated above, these petitions are held to be non‑maintainable and are dismissed as such.
H.B.T./M‑808/L Petitions dismissed.