ASADULLAH RASHID vs Haji MUHAMMAD MUNEER and others

ORDER

' NASIR ASLAM ZAHID, J.---Petitioner Asadullah Rashid was working as Assistant Agricultural Engineer (W & D), Vehari, when he was transferred to F & W, Vehari vice respondent No,1 Haji Muhammad Muneer (petitioner in the writ petition before the High Court) on 19-5-1998 on account of exigency of service. The order dated 19-5-1998 was later on cancelled by order dated '30-5-1998 but then this order was withdrawn by order dated 5-6-1998, the result being that the earlier order dated 19-5-1998 was restored. Being aggrieved, respondent No,1 Haji Muhammad Muneer filed Writ Petition No,4957 of 1998. The Lahore High Court admitted the writ petition for regular hearing.

Reference was made by the High Court to the case of Zahid Akhtar (PLD 1995 SC 530). It was observed in the admission order that prima facie the impugned order dated 4-6-1998 was a mala fide order having been passed due to political interference. Interim relief was also granted to respondent No,1 by suspending the operation of the impugned order dated 4-6-1998. Petitioner Asadullah Rashid has filed this petition seeking leave against the impugned order dated 15-6-1998 of the High Court. On the last date of hearing i.e,. 25-6-1998 notice of this petition was issued to the respondents and also to the Advocate-General, Punjab, for today. No one has appeared on behalf of respondent No,1 Haji Muhammad Muneer. However, Miss Yasin Saigal, learned Additional Advocate-General, Punjab, has appeared on notice. We have heard Hafiz Tariq Nasim, learned counsel for the petitioner and the learned Additional Advocate-General and have also referred to the relevant record.

2. Learned counsel for the petitioner contended that the writ petition filed by respondent No,1 was barred by Article 212 of the Constitution and in that context he has referred to a number of judgments of this Court wherein it has been held that Service Tribunals have exclusive jurisdiction in relation to all matters connected with the terms and conditions of service of the civil servants (subject to some exceptions which are not relevant to the present controversy) and these include matters relating to transfer of a civil servant.

' In a recent decision dated 27-5-1998 dismissing Civil Petition for Leave No,727-L of 1998 (Khalid Mahmood Wattoo v. Government of Punjab), this Court observed as follows: "The consistent view of this Court has been that a writ petition or Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of the provisions contained in Article 212 of the Constitution. Reference can be made to the following judgments:--

(i) Imam Bakhsh v. Deputy Commissioner Layyah (1992 SCMR 365);

(ii) Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539);

(iii) Rukhsana Ijaz v. Secretary Education (1997 SCMR 167);

(iv) Ayub Anjum v. Government of Punjab (1997 SCMR 169);

(v) Muhammad Sarwar v. Government of Punjab (1990 SCMR 999)".

In that decision, Full Bench judgment of the Sindh High Court in the case of Khalil-ur-Rehman v.

Government of Pakistan (PLD 1981 Karachi 750) was also approved where it was held that orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Court including High Court was ipso facto ousted as a result of barring provisions of Article 212 of -the Constitution. Reference in the decision of this Court dated 27-5-1998 in Civil Petition No,727-L of 1998 was also made to Zahid Akhtar (PLD 1995 SC 530) and it was observed as follows:-- "Against his transfer, the petitioner Zahid Akhtar had filed a writ petition in the Lahore High Court, which was dismissed as not maintainable in view of the bar contained in Article 212. Petitioner filed a petition for leave. In its decision, this Court referred to various principles and also the Government Transfer Policy to be followed, but ultimately the petition for leave was dismissed as not maintainable."

3. Miss Yasmin Saigal, learned Additional Advocate-General, Punjab, supported the case of the petitioner submitting that the High Court should have first decided the question of its jurisdiction before admitting the writ petition and/or granting interim relief.

4. As a result, Civil Petition No,934-L of 1998 is converted into appeal and the same is allowed, order dated 15-6-1998 of the Lahore High Court passed in Writ Petition No,4957 of 1998 is set aside and the matter is remanded to the High Court for fresh decision after hearing the parties. Before taking any decision regarding admission of the writ petition an i/or passing orders granting interim relief, the High Court will first decide the question of its jurisdiction in view of the provisions of Article 212 of the Constitution and in the light of the judgments of this Court on the point involved.

' There shall be no order as to costs.