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Petitioner: XEN, HIGHWAYS, MIRPUR VS Respondent: MAQSOOD AHMAD, OVERSEER, ROADS DIVISION, MIRPUR
1999 P L C (C
1999 P L C (C.S.) 1252
[Supreme Court (AJ&K)]
Present: Sardar Said Muhammad Khan, C. J. and Basharat Ahmad Shaikh, J
XEN, HIGHWAYS, MIRPUR
versus
Ch. MAQSOOD‑AHMAD, OVERSEER, ROADS DIVISION, MIRPUR and 5 others
Civil Appeal No. 127 of 1 998, decided on 29th April. 1999. (On appeal from the judgment of the High Court, dated 5‑10‑1998 in Writ Petition No. 198 of 1998).
Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑
‑‑‑‑S. 4‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Writ petition‑‑‑Maintainability‑‑‑Civil service‑‑‑Transfer‑‑‑Writ jurisdiction, exercise of‑‑‑Civil servant had alleged in writ petition that his transfer order was mala fide because during two years of his service he had been transferred for nine times‑‑‑High Court admitted petition and issued ex parte stay order‑‑‑Validity‑‑‑Transfer was one of terms and conditions of service over which Service Tribunal had exclusive jurisdiction and High Court had no jurisdiction in the matter‑‑Frequent transfers of civil servant though were highly unusual, but that fact would not take away jurisdiction from Service Tribunal‑‑‑Even mala fide order could be challenged before Service Tribunal‑‑‑High Court, in circumstances, had fallen into error in admitting writ petition to regular hearing and also issuing stay order‑‑‑Order of High Court was set aside in appeal by Supreme Court.
Mir Khalid Mahmood, Advocate for Appellant. Nemo for Respondents.
Date of hearing: 23rd April, 1999.
JUDGMENT
BASHARAT AHMAD SHAIKH, J.‑‑‑The High Court has admitted a writ petition filed by respondent Maqsood Ahmad to challenge his transfer order. He averred before the High Court that the transfer order is mala fide because he has been transferred for nine times during the period commencing from 23rd November, 1996. The High Court has also issued an ex parte stay order. Executive Engineer, Highways Mirpur, who is impleaded as a respondent in the writ petition, had filed petition for leave to appeal to challenge the admission order as well as the stay order.
2. Mir Khalid Mahmood, the learned counsel for the appellant, submits that undoubtedly transfer is one of the terms and conditions of service over which the Service Tribunal has exclusive jurisdiction, from which it follows that the High Court has no jurisdiction 'in the matter. He also submits that even if the allegation that the transfer order is mala fide may have substances, it still does not confer jurisdiction on the High Court because it is clearly provided in proviso (c) of section 4 of the Service Tribunal Act that questions relating to mala fide and coarm non judice can also be decided by the Service Tribunal.
3. The respondent is not personally present but has sent written arguments in which he has complained that he has been transferred nine times during the period commencing from 23rd November, 1996 to the filing of the petition for leave to appeal on 26th October, 1998. He has submitted that his transfers were made with mala fide intentions and he had been threatened by same named person in the Government that he will not be allowed to continue his service.
4. As rightly contended by Mir Khalid Mahmood, transfer is one of the terms and conditions of service of civil servants. Therefore, the High Court has no jurisdiction to entertain a writ petition regarding a transfer order. Mir Khalid Mahmood is also right in pointing out that even mala fide orders can be challenged before the Service Tribunal. Without commenting on the allegations made by respondent Maqsood Ahmad, the frequent transfers of the respondent, to say the least, are highly unusual, but this fact does not take away jurisdiction from the Service Tribunal. The respondent should have moved the Service Tribunal not the High Court.
5. It is clear that the High Court fell in error in admitting the writ petition to regular hearing and also in issuing a stay order. We therefore, accept the appeal and set aside the order of the High Court passed on 5th October, 1998. It is instead ordered that the writ petition filed by Maqsood Ahmad shall stand dismissed in limine as being not maintainable.
H.B.T./397/SC/(AJ&K) Appeal accepted.