JAM DAD KHAN vs PROVINCE OF PUNJAB And Others
The petitioner, an Assistant Executive Engineer, challenged an interim order passed by the High Court which suspended his transfer order. The transfer order had been issued by the Secretary, Irrigation and Power Department, Government of Punjab, and was subsequently challenged by the respondent, a fellow civil servant, in the High Court. The petitioner argued before the Supreme Court that the transfer of a civil servant relates to the terms and conditions of service, making it a matter exclusively within the jurisdiction of the Service Tribunal under Article 212 of the Constitution of Pakistan 1973, thereby barring the jurisdiction of the High Court. The Supreme Court observed that the impugned order of the High Court was merely an interim order passed subject to notice. Consequently, the Court declined to interfere at this stage, holding that the petitioner should instead approach the High Court with an application to recall the interim order by raising the jurisdictional objection there. The petition for leave to appeal was dismissed with these observations.
- Does the High Court have jurisdiction to entertain a challenge to the transfer of a civil servant?
- Is a petition for leave to appeal maintainable against an interim order passed by the High Court that is subject to notice?
- Should a jurisdictional objection regarding the bar of Article 212 be raised before the High Court in an application for recall of an interim order?
- Article 212, Constitution of Pakistan 1973
ZIA MAHMOOD MIRZA, J.---By order dated 8th September, 1996 passed by the Secretary, Irrigation and Power Department, Government of Punjab, petitioner, an Assistant Executive Engineer/Sub- Divisional Officer, (awaiting posting) was posted as Sub-Divisional Officer, River Survey Sub-Division of Lahore Drainage Division, Lahore vice Mr. Shakeel Ahmad, S.D.O. Respondent No. 3 herein who was directed to report to I&P Secretariat for further posting. Aggrieved of this transfer order, respondent No.3 challenged it in the High Court in its Constitutional jurisdiction. A learned Judge of the High Court admitted the Constitutional petition to regular hearing and suspended the operation of the impugned transfer order subject to notice vide order dated 7-10-1996.
2. Feeling aggrieved, the petitioner filed the instant petition for leave to appeal against the aforementioned order of the learned Judge in the High Court.
3. We hate heard the learned counsel for the petitioner. His contention is that the transfer of a civil servant is a matter relatable to the terms and conditions of service, remedy for which lies in an appeal before the Service Tribunal and jurisdiction of all other Courts including the High Court to entertain such matters is barred by virtue of Article 212 of the Constitution. Learned counsel has made a grievance that although the impugned interim order was passed subject to notice, case has not come up for hearing for the A last five months. Be that as it may, since the impugned order of the High Court is only of interim nature and was subject to notice, petitioner should better move an application in the High Court for recall of the said order raising an objection therein to the jurisdiction of the High Court. In this view of the matter, we do not find it a fit case for interference by this Court at this stage. This petition is accordingly dismissed with the a forenoted observation.