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| Transfer of civil servant |
یہ فیصلہ ظاہر کرتا ہے کہ ہائی کورٹ نے درخواست کو ناقابلِ سماعت قرار دے کر مسترد کر دیا کیونکہ درخواست گزار ایک سرکاری ملازم تھی، اور سرکاری ملازمین کے سروس معاملات کو دیکھنے کا اختیار سروس ٹریبونل کے پاس ہوتا ہے، نہ کہ ہائی کورٹ کے پاس۔
عدالت نے آئینِ پاکستان کے آرٹیکل 212 اور پنجاب سول سرونٹس ایکٹ 1974 کی دفعات 3 اور 9 کا حوالہ دے کر واضح کیا کہ سرکاری ملازمین کی تعیناتی، تبادلے اور سروس کے دیگر معاملات کو متعلقہ سروس ٹریبونل میں چیلنج کیا جانا چاہیے۔ مزید برآں، سپریم کورٹ کے مختلف فیصلوں کا حوالہ دے کر یہ مؤقف اپنایا گیا کہ جب ایک مؤثر قانونی راستہ موجود ہو تو ہائی کورٹ کا آرٹیکل 199 کے تحت اختیارِ سماعت محدود ہو جاتا ہے۔
یہ فیصلہ ایک اہم قانونی نظیر ہے، جو یہ واضح کرتا ہے کہ سرکاری ملازمین کو سروس سے متعلق معاملات کے لیے پہلے متعلقہ محکمے سے رجوع کرنا چاہیے اور اگر وہاں سے شنوائی نہ ہو تو سروس ٹریبونل سے رجوع کرنا چاہیے، بجائے اس کے کہ براہ راست ہائی کورٹ میں درخواست دائر کریں۔
Stereo. H C J D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE.
(JUDICIAL DEPARTMENT)
W.P. NO.73638 of 2024
Munnza Bibi
Vs.
Government of Punjab, etc.
JUDGMENT
DATE OF HEARING:
25.02.2025
PETITIONER BY:
Mian Muhammad Sajjad,
Advocate.
RESPONDENTS BY:
Mr. Muhammad Azam
Chughtai, AAG along with
Izhar Ahmad L/o, o/o
DEO(W) Sheikhupura.
MALIK MUHAMMAD AWAIS KHALID, J.
The
instant
constitutional petition under Article 199 of the Constitution of
the Islamic Republic of Pakistan, 1973 (the Constitution)
carries the following prayer:
―That the instant Writ Petition may kindly be
accepted; the impugned Transfer Order
No.LSTO/SKP/HSS-3605/2024 dated 22.09.2024
passed by respondent No.1, may please be set aside,
in the interest of justice, equity and fair play.
It is further prayed that till the final disposal of this
writ petition, the operation of the impugned Transfer
Order No. LSTO/SKP/HSS-3605/2024 dated
22.09.2024 passed by respondent No.1, may kindly be
suspended and the respondents may graciously be
restrained from got relinquishing the charge from the
petitioner as SST (Physics – Math) / Headmistress,
Government Girls Elementary School, Roranwali,
Mananwala, Tehsil and District Sheikhupura.
Any other relief which this Honourable Court deems
fit and appropriate may also be rewarded.‖
W.P. No.73638 of 2024
2
whereby the petitioner challenges the her Transfer Order
No.LSTO/SKP/HSS-3605/2024 dated 22.09.2024
(the
Impugned Order).
2.
Essential facts giving rise to file the instant writ
petition are that petitioner was appointed as Secondary School
Educator (SSE) Physics-Math vide order No.12/PA/7123
dated 26.09.2012 and posted at Government Girls Community
Model High School, Mandiala, Chak No.20/R.B., Tehsil
Safdarabad, District Sheikhupura and her services were
regularized vide order No.16/PA/2010 dated 17.03.2016
passed by Executive District Officer (Edu) Sheikhupura.
Afterward she was transferred to Government Girls
Elementary School Roranwali, Mananwala, Tehsil & District
Sheikhupura, vide transfer order No.18/PA-8234 dated
19.11.2018 and assumed the charge in the said school where
statedly she is still performing her duties as Headmistress. On
22.09.2024, vide impugned Transfer Order
No.
LSTO/SKP/HSS-3605/2024, petitioner got transferred from
her present place of posting to Govt. Girls High School,
Rasulpur Jattan, Tehsil Safdarabad, District Sheikhupura and
through impugned transfer order dated 22.09.2024 respondent
No.7/SSE (Science) has also been transferred from Govt. Girls
High School Rasulpur Jattan, Tehsil Safdarabad, District
Sheikhupura to Government Girls Higher Secondary School,
Mananwala and also auto relieved/ auto joined the services of
petitioner and respondent No.7 on 29.10.2024.
3.
Learned counsel for the petitioner argued that the
impugned order is self-contradictory as a message on School
Information System (SIS) was circulated on 29.09.2024 that
as per direction of competent authority no teacher is allowed
to relieve/ join upon orders of Rationalization issue through
School Information System (SIS) in recent E-Transfer Round,
2024. The impugned order is not sustainable in the eyes of law
W.P. No.73638 of 2024
3
and liable to be set aside. Adding further, the petitioner is still
performing duty as Head mistress Govt. Girls Elementary
School, Roranwali, Mananwala, District Sheikhupura and
approached the competent authority but all in vain. The
petitioner does not have longest tenure at her present place of
posting rather there is another teacher, namely, Sidra Anwar
SSE (IT) who having longest tenure in the said school than the
petitioner being posted there since 20.07.2016, therefore,
impugned transfer order is clear violation of the Transfer
Policy, 2024.
4.
Conversely, learned Law Officer raised objection
regarding the maintainability of this constitutional petition
under Article 199 and the jurisdiction of this Court to decide
the validity of the impugned order as petitioner is a civil
servant.
5.
Arguments heard. Record perused.
6.
On the court’s query learned counsel for the
petitioner candidly conceded that the petitioner is a civil
servant.
The impugned order is a transfer of petitioner whereas transfer
is the part of terms and conditions by virtue of Sec.3 and Sec.9
of the Punjab Civil Servant Act, 1974 (the Act, 1974). The
provisions dealing are reproduced as below:
Sec.3 Terms and conditions.—The terms and
conditions of service of a civil servant shall be
as provided in this Act and the rules.
Sec.9 Postings and transfers.- Every civil
servant shall be liable to serve anywhere within
or outside the province in any post under the
Government of the Punjab or the Federal
Government or any Provincial Government or
a local authority or a corporation or a body set
up or established by any such Government.
W.P. No.73638 of 2024
4
Being a civil servant, the petitioner at first avail the
departmental remedy, and it is the duty of public functionaries
to decide the grievance of their subordinate after application
of mind with cogent reasons within reasonable time. In this
regard reference is made to following judgment of Apex Court
Government of Pakistan through Director-General, Ministry
of Interior, Islamabad and others Vs. Farheen Rashid (2011
SCMR 1) :---
"After addition of section 24-A in the General
Clauses Act, it is the duty and obligation of the
Public functionaries to decide the cases of their
subordinates after application of mind with cogent
reasons within reasonable time as law laid down by
this Court is Messrs Airport Support Services’s case
1998 SCMR 2268 and Aslam Warraich’s case 1991
SCMR 2330.
After availing departmental recourse, the aggrieved petitioner
can resort the remedy under Section 4 of the Punjab Service
Tribunal Act, 1974 by filing appeal before the Tribunal.
Relevant portion of section 4 of said Act, is reproduced as
under:
Sec.4 Appeal to Tribunals.—(1) Any civil
servant aggrieved by any final order, whether
original or appellate, made by a departmental
authority in respect of any of the terms and
conditions of his service may, within thirty
days of communication of such order to him or
within six months of the establishment of the
appropriate Tribunal, whichever is latter
prefer an appeal to the Tribunal—
This aspect has been dealt by August Supreme Court of
Pakistan in case titled Muhammad Hassanullah (OMG/B18),
Acting Additional Secretary, Health Department, Balochistan
Vs. Chief Secretary, Government of Balochistan, Quetta and
another [2025
W.P. No.73638 of 2024
5
―The question before us is whether the High Court
could have exercised its jurisdiction under Article
199 in the light of the bar contained in Article 212 of
the Constitution.
Article 212 starts with a non obstante clause and
provides that the appropriate legislature may, be the
Act, provide for establishment of one or more
administrative courts or tribunals, inter alia, to
exercise jurisdiction in respect of matters relating to
the terms and conditions of person who are or have
been in the service of Pakistan, including disciplinary
matters. Sub-Article (2) of Article 212 also begins
with a non obstante clause and expressly provides
that no court other than an administrative court or
tribunal shall grant an injunction, make any order or
entertain any proceedings in respect of any matter of
which the jurisdiction of such administrative court or
tribunal extends. The Constitution has, therefore,
expressly declared that the administrative court or
tribunal established pursuant to the command under
Article 212shall exercise exclusive jurisdiction in
relation to the matter within its jurisdiction. The non
obstante clause in Article 212 gives it an overriding
effect and thus bars the jurisdiction of a High Court
vested under Article 199 of the Constitution. The
ouster curtails the jurisdiction of a High Court in
respect of matters which fall within the ambit of the
exclusive jurisdiction of an administrative court or
tribunal. It is noted that in order to make a matter
exclusively within the domain of the service tribunal
under the Tribunals Act, and thus create a bar
contemplated under Article 212, it must be shown
that the grievance has been agitated by a civil
servant and relates to the terms and conditions of
service and does not attract the exceptions set out in
clause (b) of section 4 of the Tribunals Act. The act of
1974 and the Tribunals Act provide for a
comprehensive mechanism for agitating a grievance
by a civil servant and specific forums have been
provided for seeks remedies. The Article 212 are of
such a nature that that they are attracted even if the
grievance arises from an order which may involve
questions of mala fide, corum non judice or having
W.P. No.73638 of 2024
6
been passed without jurisdiction. In I.A. Sherwani’s
case, a larger Bench of this Court has held and
observed that a civil servant cannot bypass the
jurisdiction of the service tribunal by adding a
ground of violation of fundamental right(s). The
service tribunal will have exclusive jurisdiction in a
case founded on the terms and conditions of service
even if it involves the question of violation of
fundamental rights‖.
For relevant reference, Article 212 of the Constitution ibid is
reproduced as under:
212. Administrative Courts and Tribunals. (1)
Notwithstanding anything hereinbefore
contained, the appropriate Legislature may by
Act [provide for the establishment of] one or
more Administrative Courts or Tribunals to
exercise exclusive jurisdiction in respect of-
(a) matters relating to the terms and conditions
of persons [who are or have been] in the
service of Pakistan, including disciplinary
matters;
(b) matters relating to claims arising from
tortious acts of Government, or any person in
the service of Pakistan, or of any local or other
authority empowered by law to levy any tax or
cess and any servant of such authority acting
in the discharge of his duties as such servant;
or
(c) matters relating to the acquisition,
administration and disposal of any property
which is deemed to be enemy property under
any law.
(2) Notwithstanding anything hereinbefore
contained where any Administrative Court or
Tribunal is established under clause (1), no
other court shall grant an injunction, make any
order or entertain any proceedings in respect
of any matter to which the jurisdiction of such
Administrative Court or Tribunal extends and
all proceedings in respect of any such matter
which may be pending before such other court
immediately before the establishment of the
Administrative Court or Tribunal [;other than
an appeal pending before the Supreme Court,]
shall abate on such establishment]:
W.P. No.73638 of 2024
7
Provided that the provisions of this clause
shall not apply to an Administrative Court or
Tribunal established under an Act of a
Provincial Assembly unless, at the request of
that Assembly made in the form of a resolution,
[Majlis-e-Shoora (Parliament)] by law extends
the provisions to such a Court or Tribunal.
7.
Being a civil servant, petitioner’s grievance in respect
of terms and conditions of service could be adjudged by
Service Tribunal under the law. The August Supreme Court of
Pakistan specifically observed relating to the jurisdiction of
Service Tribunal in such like matters, as reported in case titled
as Chief Secretary, Government of Punjab, Lahore and others
Vs. Ms. Shamim Usman (2021 SCMR 1390). Relevant extract
is reproduced as under:
―Jurisdiction of all other courts was ousted
because of the provisions contained in Article
212 of the Constitution and orders of
departmental authorities, even though without
jurisdiction could be challenged only before
Service Tribunal. Moreover, Service Tribunal
had full jurisdiction to interfere in such like
matters.‖
The learned Service Tribunal has ample power to decide the
appeal of civil servant under the law. Vires of this issue comes
under the ambit of Service Tribunal, therefore, petitioner may
avail alternate remedies available to her supra under the law.
In support of above, it is pertinent to mention the case
reported as Taufiq Asif and others Vs. General (Retd.) Pervez
Musharraf and others (PLD 2024 Supreme Court 610)
wherein August Supreme Court of Pakistan held as under:
“Where an adequate remedy is available under
the relevant law, this Court has strictly
deprecated circumventing that remedy and
invoking the writ jurisdiction of the High Court
under Article 199 of the
Constitution……………..The doctrine of
exhaustion of remedies accentuates that a
litigant must not circumvent or bypass the
W.P. No.73638 of 2024
8
provisions of the relevant law that provide for
an adequate remedy. If a party does not choose
the remedy available under the law, the writ
jurisdiction of the High Court cannot be
invoked and exercised in his favour.‖
On the strength of foregoing reasons, I find that this matter
relates to the terms and conditions of a civil servant, therefore,
the impugned order needs not to be interfered by this Court.
8.
As a sequel of above discussion and relying on the
judgments supra instant writ petition is dismissed being not
maintainable.
(MALIK MUHAMMAD AWAIS KHALID)
JUDGE
APPROVED FOR REPORTING
JUDGE
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