Rai AHMAD ALI vs PROVINCE OF PUNJAB and others

' IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the order dated 24- 6-1998 passed by a learned Single Judge of the Lahore High Court in Writ Petition No,12107 of 1998 whereby the order dated 6-6-1998, passed by the Secretary, Government of Punjab, Home Department, holding in abeyance the order, dated 30th May, 1998, by which the petitioner herein was transferred from Sheikhupura and posted vice Manzoor Ahmad, respondent No,3 as Civil Defence Officer, Toba Tek Singh, was suspended vide C.M.No,2 of 1998 in the said writ petition.

2. Respondent No,3 before approaching the High Court filed an appeal before the Punjab Service Tribunal, Lahore (hereinafter referred to as the Tribunal), challenging the order dated 6-6-1998 referred above but the same was disposed of as withdrawn by order dated 15-6-1998 passed by the Tribunal on request on behalf of the respondent, inasmuch as, the departmental representation against the said original order had not been made. The respondent by suppressing this fact approached the High Court and succeeded in obtaining the impugned order.

3. We have heard Dr. A. Basit, learned counsel for the petitioner and Mr Mehmoodul Islam, Advocate-on-Record, for the respondents and perused the material on record.

4. Admittedly, the order dated 6-6-1998 impugned before the High Court was open to challenge before the Service Tribunal after availing the departmental remedy. Article 212 of the Constitution is a bar against filing of a Constitutional petition in relation to the terms and conditions of civil servants. It has been repeatedly held by this Court that a Constitutional petition under Article 199 of the Constitution is not maintainable in relation to any matter connected with the terms and conditions of service in respect whereof the appropriate Service Tribunal is possessed of the requisite jurisdiction, in view of the provisions contained in Article 212 of the Constitution. This Court has also held that even in cases where the order is alleged to be mala fide, the bar of Article 212 is attracted. Reference may be made to the judgment rendered by a Bench of this Court comprising three Hon'ble Judges in Civil Petition No,727-L of 1998 decided on 27-5-1998 wherein one of us (Irshad Hasan Khan, J.) was a party. To the same effect is the decision by a Bench of three Hon'ble Judges in C.A.No,1012 of 1995 and C.A.No,1448 of 1995, decided on 17th June, 1998.

5. We, therefore, convert this petition into appeal and allowing the same set aside the order dated 24-6-1998 passed in C.M.No,2 of 1998 in Writ Petition No,12107 of 1998 with no order as to costs.