PERVAIZ ASLAM vs ILYAS HUSSAIN SHAH and another

ORDER

' IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the interim order, dated 26-10-1998 in Civil Miscellaneous No,1 of 1998 in Writ Petition No,22031 of 1998, arising out of a transfer matter of a civil servant.

2. Brief facts are that on 12-10-1998, the petitioner and respondent No,1 were directed to change their places with immediate effect in public interest. It is alleged that respondent No,1, instead of complying with the above order, filed a Constitutional petition before the High Court whereupon the learned Judge in Chambers suspended the operation of the transfer order with the following observations:-- "Says that the petitioner has been transferred pursuant to the directive of the Minister who has no jurisdiction. It is argued that the law declared by the Supreme Court of Pakistan in the case of Zahid Akhtar v. Government of Punjab etc. (PLD 1995 SC 530) has been violated.

(2) The learned counsel has pointed out that against the person who has been appointed in place of the petitioner an inquiry was held in which he was found to be corrupt.

(3) A copy of this petition has been handed over to Mr. G. Haider AlGhazali, learned Additional Advocate-General, who has been asked to appear before this Court after obtaining instructions."

3. We have heard the learned counsel for the parties and the learned Advocate-General, Punjab.

This Court has repeatedly held that a Constitutional petition under Article 199 by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof Service Tribunal has jurisdiction, is not maintainable in view of the provisions of Article 212 of the Constitution. Reference may be made to the recent judgment of this Court in the case of Khalid Mahmood Wattoo v. Government of Punjab (1998 SCMR 2280), wherein the case of Zahid Akhtar v.

Government of Punjab etc. (PLD 1995 SC 530), was also considered. (one of us Irshad Hasan Khan, J. Was a party to the said judgment). When faced with this, Ch. Riasat Ali, learned counsel for the respondents argued that the order of transfer before the High Court, was not passed in the exigenceis of service but on extraneous considerations at the instance of Revenue Minister and, therefore, in view of ratio laid down in the case of Zahid Akhtar (supra), the writ petition was maintainable.

' The contention is devoid of any force. Suffice it to say that in the case of Zahid Akhtar (supra), the writ petition was filed in the High Court, which was dismissed as not maintainable in view of the bar contained in Article 212 of the Constitution. However, this Court referred to various principles and also the Government's Transfer Policy, to be followed in the matters of transfer of civil servants. If in a given case, the instructions are not followed by the competent departmental Authority the proper course for the civil servant is to approach the appropriate Service Tribunal instead of rushing to the High Court through a Constitutional petition.

4. Be that as it may, Mr. Ashtar Ausaf Ali, the learned Advocate-General, Punjab, has made a statement at the bar that in view of the ratio in the case of Zahid Akhtar (supra), and the observations made in the case of Nasir Ahmed v. Government of Pakistan (1992 PLC (C.S.) 1020), wherein judgment was rendered by one of us (Irshad Hasan Khan, J.), in the High Court and approved in the case of Khalid Mahmood Wattoo (supra), the appropriate competent Authority, after examining the entire matter afresh, shall pass appropriate orders, as it may deem fit in the exigencies of service, justly, fairly and in accordance with law.

5. As a result, this petition is converted into an appeal and allowed. The impugned order of the High Court is set aside with the direction that the competent Authority shall re-examine the matter in accordance with the instructions in the preceding paragraphs. A copy of this order shall be forwarded to respondent No,2 herein.