Present:

Mr. Justice Aqeel Ahmed Abbasi &

Mr. Justice Ghulam Qadir Leghari .

C.P.No.D-3101 of 2015

1. For Katcha Peshi

2. For hearing of CMA-8730/2015

3. For hearing of CMA-9263/2015

04.12.2015

Mr. Sohail Ahmed Khoso Advocate for petitioner.

Mr. Sarfraz Ali Metlo Advocate for respondent No.3.

Mr. Noor Hassan Malik, Assistant Advocate General.

O R D E R

AQEEL AHMED ABBASI, J. Through instant petition, the petitioner has impugned notification dated 21.08.2015, whereby the petitioner Nadir Ali Talpur, who was serving as Chief Conservator of Forest Department (BPS-20), has been transferred and directed to report to Forest, Environment & Wildlife Department, on the grounds that same transfer is based on mala fides and has been made by the Chief Secretary, Government of Sindh without approval of worthy Chief Minister, in terms of rule 9 of Sindh Civil Services (appointment, promotion and transfer) rules, 1974.

2. Notices were issued, pursuant to which comments have been filed on behalf of respondents, whereas, learned counsel for the respondent No.3 has raised objection with regard to maintainability of instant petition in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and the recent judgment of the Hon'ble Supreme Court reported as Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456).

3. While confronted with such position, learned counsel for the petitioner submits that since the impugned notification has been issued without lawful authority, the constitutional jurisdiction of this Court can be invoked to seek remedy against such illegal order. In support of his contention, learned counsel for the petitioner has placed reliance on the case of Corruption in Hajj Arrangements in 2010 (PLD 2011 SC 963) and Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195).

4. Learned counsel for the respondent No.3 and learned AAG submit that the facts of the aforesaid cases are distinguishable from the facts of instant case, whereas, according to learned counsel, in view of recent judgment of Hon'ble Supreme Court in Ali Azhar Khan Baloch v. police station (supra) it has been categorically held that all matters relating to terms and conditions of civil service, including dispute regarding transfer and posting, cannot be agitated before this Court by way of filing a suit or Constitutional Petition. Learned counsel has referred to para 150 of the judgment of Hon'ble Supreme Court, which is reproduced hereunder for the sake of brevity:

“150. The High Court of Sindh has completely overlooked the intent and spirit of the Constitutional provisions relating to the terms and conditions of service, while entertaining Civil Suits and Constitutional Petitions filed by the civil servants, which are explicitly barred by Article 212. The expression ‘Terms and Conditions’ includes transfer, posting, absorption, seniority and eligibility to promotion but excludes fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade as provided under Section 4(b) of the Sindh Service Tribunals Act, 1973. Surprisingly, it has been ignored that it is, by now, a settled principle of law that the civil and writ jurisdiction would not lie in respect of the suits or petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the learned Judges of High Court of Sindh have erroneously exercised both civil and writ jurisdiction with regard to the terms and conditions of civil servants.”

5. While confronted with hereinabove legal position already decided by the Hon'ble Apex Court, learned counsel for the petitioner could not dispute the legal position as laid down by the Hon'ble Supreme Court in the aforesaid matter and submitted that instant petition may be disposed of in above terms. However, per learned counsel, petitioner may be allowed to approach the relevant forum/Tribunal, as provided under law, and in the meanwhile, the operation of the impugned Notification may be suspended. Such request of learned counsel for the petitioner is vehemently opposed by learned counsel for the respondent No.3 and learned AAG, who submitted that since this petition is not maintainable in view of the judgment of Hon'ble Supreme Court as referred to hereinabove, therefore, the propriety warrants that no interim relief may be extended to the petitioner and instant petition may be dismissed.

6. In view of hereinabove facts and circumstances of the case, we are of the opinion that since the petitioner is a civil servant, who has impugned the notification regarding his transfer and posting, therefore, remedy is provided in terms of Rule 3 of Sindh Civil Servants (Appeals) Rules, 1980 r/w Section 4 of Sindh Services Tribunal Act, 1973, whereas, in view of bar under article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and the judgment of the Hon'ble Supreme Court, referred to hereinabove, instant petition is not maintainable, which is accordingly dismissed along with listed application. However, the petitioner is at liberty to seek remedy available to him in accordance with law, whereas, the ground of limitation, keeping in view the pendency of instant petition, may be considered sympathetically by the forum available under law.

JUDGE

JUDGE

N.M.