8HAKIL AHMAD Versus FEDERATION OF PAKISTAN

ORDER

1. WAJIHUDDIN AHMED, J.‑‑ ‑We have heard the learned counsel. The petitioner is an employee of the Pakistan Postal Services Corporation, which Corporation has been continued from time to time under successive Ordinances, the last in the chain being the Postal Services Corporation Ordinance, published on 12‑3‑1995. Section 34(3) of such Ordinance declares service under the corporation to be service of Pakistan and envisages that every person holding a post under the corporation, not being a person on deputation, is to be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973. We have been referred to the cases of Abdul Rahim v. Pakistan Broadcasting Corporation, 1992 SCMR 1213, and Federation of Pakistan v. Shabbir Ahmed and others C.P.L.A. No334 of 1993, from the side of the respondents to contend that much like employments under the Pakistan Telecommunication Ordinance (XVI of 1990) and the Pakistan Broadcasting Corporation Act (XX30I of 1993) employment under the Pakistan Postal Services Corporation involves employment as civil servant, covered by the jurisdiction of the Service Tribunal and the jurisdiction of this Court stands ousted pursuant to the conditionalities in Article 212(2) of the Constitution. It has further been urged that even if the successive Ordinances under which the Pakistan Postal Services Corporation has continued are found to be bad law in view of the Constitutional constraints on Ordinance making power, particularly in the face of subsisting legislative machinery, the position would remain unaltered because even on day one, when induction to corporation of service was made, the employees inducted were civil servants. At such time the relevant department was known as the Pakistan Post Office Department. These contentions appear to be valid to the extent of nature and content of the petitioner's service.

2. However, from the side of the petitioner it has been urged that the impugned order of transfer is illegal, without jurisdiction and even mala fide and in such matters the jurisdiction of this Court which is derived from the Constitution itself is not taken away. It is maintained that the order of petitioner's transfer has contravened standing instructions issued on 12‑5‑1994 which inter alia required ordinarily three months' notice before effecting transfers unless immediate transfer was necessary in public interest and further for pre‑mature transfers reference to headquarters was made compulsory for onward transmission to the Ministry of Communications for approval. Mr. Manzar Alain has maintained that the transfer questioned here was premature and also not of an urgent nature so as to dispense with notice. Further contention of the learned counsel is that the very post from which the petitioner was transferred has been abolished for mala fide reasons solely to ensure that even if the petitioner succeeds in the challenge that he has made here the petitioner cannot be reverted to his original post.

3. Normally, as held in an unending chair of judgments, transfers simpliciter routinely fall within the exigencies of service or are not open to challenge. However, where transfer orders are issued in colourable exercise of power or in excess of authority conferred by law, such being final orders, may be subjected to challenge and‑scrutiny. Question, however, still remains where? It is beyond doubt that an order of transfer has relevance with the terms and conditions of service and, therefore, if a challenge thereto is to be made such is to be before the relevant forum meant for the purpose. There is some case law, however, where such‑like questions pertaining to civil servants have been raised in the exercise of Constitutional jurisdiction as well. Thus in Muhammad Tariq v. Director Livestock 1990 PL CS.) 596, a challenge to transfer o a civil servant was entertained by a learned Single Judge of the Lahore High Court but relief was refused on the ground that the petitioner was guilty of suppression of facts and besides the order had already stood acted upon. Similarly, in Hassan Khan v. Chairman, WAPDA 1995 SCMR 23. employees of WAPDA being civil servants, a similar challenge was entertained but relief was refused because, upon facts, the impugned order was neither found to be mala fide nor passed on extraneous considerations. These obviously are authorities on which Mr. Manzar Alain has based the petitioner's case.

4. On the other hand, there are cases where orders of transfer on identical grounds of mala fides or absence of jurisdiction have been questioned in the special jurisdiction of the Service Tribunal and the challenge has been in like manner entertained. Reliance with advantage may be placed on Afzal Ahmed Hydari v. Secretary Defence Production Division,1991 SCMR 477.

5. On the foregoing premises the learned counsel for the petitioner has placed reliance inter alia on Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 and Sabir Shah v. Federation of Pakistan PLD 1994 SC 738 and contends that where an order challenged before a superior Court is mala fide or suffers from want of jurisdiction or is coram non judice the jurisdiction of superior Courts can always be invoked. The argument, so for it goes, is squarely correct. However, there is a difference where ouster is brought about by a sub‑Constitutional legislation and when the same result comes about through the Constitution itself. In cases falling in the first category there is a greater room for interference than in matters occurring in the latter class. This is based on the time honoured principle that Constitutional jurisdiction cannot be taken away by a sub‑Constitutional instrument. However, in either case, interference in the face of an alternative remedy, if equally efficacious, remains an exception rather than the rule. This is moreso where ouster is spelled out from the Constitution itself as in this case, namely, through Article 212(2) of the Constitution. For such reason, touching the matters in the latter category, very strict rules have been laid out, as would be reflected in the Full Bench case of this Court reported as Abdul Bari v. Government of Pakistan PLD1981 Karachi 290.

6. In view of the foregoing, even though we cannot say in absolute terms that jurisdiction of this Court has been taken away completely in relation to service matters falling within the purview of the Service Tribunal, particularly where mala fides or want of jurisdiction, is involved, we would adhere with the dictum that the alternative remedy available with the Tribunal is equally efficacious and cannot be lightly by‑passed. Besides, as has already been said, all too often, jurisdiction under Article 199 is discretionary and cannot be allowed to be invoked where its invocation can be counter‑productive. Such is the precise position in the casein hand.

7. In view of the foregoing, the instant petition is dismissed but the matter of contempt therein would remain pending and shall be decided in. course of time. Put up for contempt proceedings on 22‑5‑1995.

8. AA./S-1147/K Petition dismissed.