PESHAWAR: The Peshawar High Court has ruled that under the Constitution the services tribunal had exclusive jurisdiction to deal with matters relating to terms and conditions of service of a civil servant.
A bench consisting of Justice Mohammad Naeem Anwar and Justice Dr Khursheed Iqbal rejected plea of a female assistant professor of a government college against her transfer and declared her petition as not maintainable.
The bench observed that in the light of the bar put in Article 212 of the Constitution and its interpretation by the superior courts, the petition was found to be not maintainable for want of jurisdiction.
However, the bench directed that the petitioner was at liberty to approach the competent forum (services tribunal) to redress her grievance.
Bench declares petition against transfer of teacher not maintainable
The petitioner, Shehla Naeem, was working as assistant professor of law (BPS-18) in Government Girls Degree College (GGDC), Sheikh Maltoon Town, Mardan.
Her counsel stated that through a notification on May 26, 2023, a respondent (Humaira Syed), who was assistant professor of zoology, was transferred to the same college.
He said that as there was no vacant sanctioned post, therefore, on the same day a corrigendum was issued and the petitioner was transferred to GGDC Rustam, Mardan, to adjust the respondent on her post despite having different qualification.
The additional advocate general, Danyal Khan Chamkani, appeared for the government and raised a preliminary objection that the instant petition was not maintainable in view of the embargo put under Article 212 of the Constitution.
He said that the petitioner was a civil servant and her transfer related to the terms and conditions of her service.
He contended that as a civil servant, the petitioner had to approach the departmental authority and then to the services tribunal set up under Article 212 of the Constitution.
The bench observed that there was no doubt that the petitioner was a civil servant and her impugned transfer related to the terms and conditions of her service.
The bench observed that section 10 of the Civil Servants Act, 1973, provided that a civil servant could be transferred anywhere in the province.
However, it was added that the law did not put a clog on a civil servant to question a transfer order and it provided the services tribunal as the forum before which a civil servant could vindicate his or her grievance.
“It need not to be mentioned that the services tribunal is a constitutional forum established under Article 212 of the Constitution, having exclusive jurisdiction in matters relating to the terms and conditions of a person, who is or has been in the service of Pakistan,” the bench observed.
“Article 212 of the Constitution of Pakistan ousts the jurisdiction of high courts and civil courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil courts, high courts and tribunals.
“The ouster contemplated under the said article is a constitutional command and, therefore, of necessity restricts the jurisdiction of civil courts and high courts on the subject, which squarely falls within the exclusive domain of the tribunal,” the bench quoted from an earlier judgment of the Supreme Court of Pakistan of 2015.
Published in Dawn, September 4th, 2023
