Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: GHULAM MUHAMMAD MALLAH VS Respondent: PROVINCE OF SINDH through Chief Secretary, Government of SindhHonorable Justice Ali Sain Dino MetloS.M. Iqbal
2009 P L C (C
2009 P L C (C.S.) 120
[Karachi High Court]
Before Ali Sain Dino Metlo and Dr. Rana Muhammad Shamim, JJ
GHULAM MUHAMMAD MALLAH
Versus
PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 5 others
Constitutional Petition No. D-1573 of 2008, decided on 13th August, 2008.
Sindh Civil Servants Act (XIV of 1973)---
----S. 10---Constitution of Pakistan (1973), Arts.199 & 212(2)---Constitutional petition against---Transfer---Petitioner who claimed to be a Social Worker had sought cancellation of transfers and postings of about 200 school teachers made by authorities, on the ground that said transfers were not in public interest and same were made during ban on transfers---Counsel for the petitioner could not show as to in what way any personal or proprietary right of the petitioner was affected by the transfers and postings of the said teachers---Petitioner had not claimed that his children were studying in any of the schools from which the teachers were transferred---Even otherwise petitioner could not claim any vested right in any particular teacher to teach his children---Transfer of a civil servant was purely an administrative action; it would be very difficult for the court to determine whether transfer of a particular civil servant was or was not in public interest---Courts had always shown restraint in entertaining such matters---Transfer of a civil servant was essentially a condition of his service and by virtue of Art.212 of the Constitution, it would come within the exclusive jurisdiction of Service Tribunals; and jurisdiction of all other courts, including a High Court was expressly barred under its sub-Article (2) of Article 212 of the Constitution---Even the teachers themselves, what to talk of the petitioner, could not challenge their transfers before the High Court---What could not be done directly, could not be done indirectly also---Petitioner, who seemed to be a public spirited keen watch-dog interested in good governance, proper course for him would be to approach the concerned functionaries of the government in its hierarchy---Matters which were purely administrative in nature and pertained to the terms and conditions of service of civil servants, were not justiciable before the High Court---Constitutional petition was dismissed.
Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Miss Rukhsana Aijaz v. Secretary, Education Punjab 1997 SCMR 167; Mst. Shamim Akhtar v. Government of Pakistan PLD 1991 Lah. 389 and Sarfraz v. Secretary to Government of Punjab, Health Department 2001 PLC (C.S.) 1291 ref.
S.M. Iqbal for Petitioner.
Date of hearing: 13th August, 2008.
JUDGMENT
ALI SAIN DINO METLO, J.---Petitioner Ghulam Muhammad Mallah claiming to be a social worker, seeks cancellation of transfers and postings of about 200 school teachers made by the respondent No.6, acting as Incharge Executive District Officer (Education), Thatta, mainly on the grounds that they were not in public interest and were made during ban. According to him, some teachers were posted at a far distance of about 200 kilometers from their home places and Miss Humera Alwani, a Member of Provincial Assembly of Sindh (M.P.A.), taking serious notice of such transfers, had approached the Chief Minister of Sindh for his removal. According to the petitioner, the transfers and postings had adversely affected the entire system of education in District Thatta. While seeking cancellation of transfers, he also seeks direction for holding enquiry and taking disciplinary action against him.
2. Learned counsel for the petitioner could not show in what way any personal or proprietary right of the petitioner was affected by the transfers and postings of the teachers. He has not claimed that his children were studying in any of the schools from which the teachers were transferred. Even otherwise he cannot claim any vested right in any particular teacher to teach his children.
3. Transfer of a civil servant is purely' an administrative action. It will be very difficult for the Court to determine whether transfer of a particular civil servant is or is not in public interest. The Courts have always shown restraint in entertaining such matters.
4. Transfers of a civil servant is essentially a condition of his service and by virtue of Article 212 of the Constitution, it comes within the exclusive jurisdiction of Service Tribunal and jurisdiction of all other Courts, including a High Court, is expressly bared under its sub-Article (2). Thus, even the teachers themselves, not to talk of the petitioner, cannot challenge their transfers before this Court. What cannot be done directly cannot be done indirectly also.
5. In the case of Zahid Akhtar v. Government of Punjab PLD 1995 SC 530, the Supreme Court did not intervene and did not grant leave to appeal against order of the Lahore High Court dismissing constitutional petition of a civil servant challenging his frequent transfers, notwithstanding the fact that the transfers were found to be based on extraneous considerations having no nexus with the exigencies of his service. In the case of Miss Rukhsana Aijaz v. Secretary Education Punjab 1997 SCMR 167 order of the Lahore High Court suspending operation of transfer and posting order of two civil servants on the ground that one was not eligible to he posted in place of the other was set aside by the Supreme Court on the ground that the dispute related to the terms and conditions of their service and the jurisdiction of the High Court was expressly barred under Article 212(2) of the Constitution. In the case of Mst. Shamim Akhtar v. Government of Pakistan PLD 1991 Lah. 389 transfer of Mst. Shamim Akhtar, a school teacher, was cancelled on the desire of M.N.A. and M.P.A. The Lahore High Court declined to interfere on the ground that it was an order of administrative nature. In another case also re: Sarfraz v. Secretary to Government of Punjab, Health Department, reported in 2001 PLC (C.S.) 1291, the Lahore High Court declined to entertain a constitutional petition filed by a social worker, challenging, pro Bono publico, legality of an order, passed on the intercession of a Minister, cancelling transfer of a lady civil servant, against whom there were lot of complaints.
6. The petitioner seems to be a public spirited keen watch-dog interested in good governance. The proper course for him will be to approach the concerned functionaries of the Government in its hierarchy. The matters, which are purely administrative in nature and pertain to the terms and conditions of service of civil servants are not justiciable before this Court. It was for these reasons, that the petition, being not maintainable, was dismissed summarily by a short order passed on 13-8-2008.
H.B.T./G-28/K??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.