' JAVED IBQAL, J---This petition for leave to appeal is directed against the judgment dated 17-10- 2002 passed by learned Punjab Service Tribunal, Lahore, whereby the appeal preferred on behalf of respondent namely Ibrar Younas Butt has been accepted and orders dated i3-5-1998 and 10-4- 2002 were set aside being unlawful.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that the respondent "was appointed by the Lahore Development Authority arrayed as respondents Nos.3 on 23rd September, 1986, in BPS-17 as Assistant Engineer. On the orders of the then Chief Minister, dated 18th January, 1989, appellant was posted as Assistant Design Officer, Planning and Designing Directorate, Highway Department (South), Lahore, on deputation vide order of respondent No,1 dated 23rd January, 1989. It seems that at the behest of the appellant, Chief Minister issued another directive dated 6th October, 1990, to respondent No,1 for regularization of the services of the appellant in the communication and Works Department, Government of the Punjab, Lahore. In order to give a legal shape to the order of the Chief Minister respondent No,1 established contact with the Director General, Lahore Development Authority, i,e, respondent No,3 vide his letter dated 7th July, 1991, seeking permission of the Lahore Development Authority to permanently absorb the appellant in the' Communication and Works Department. The Lahore Development Authority readily replied on 14th July, 1991, that it would have no objection for permanent absorption of the appellant in the Communication and Works Department, Government of the Punjab. Resultantly, the appellant was absorbed in the Communication and Works Department, as Assistant Engineer vide order dated 6th August, 1991, on terms and conditions stipulated in the letter of absorption, one of them being that the absorption was provisional subject to verification of the character and antecedents of the appellant as per Government policy and in case the same is not found to be above board, the absorption will stand terminated forthwith. Another condition was that the would remain on probation for a period of two years. Appellant accepted these conditions and took departmental professional examination of Assistant Engineer/Sub-Divisional Officer, whereby he was declared successful being placed at Serial No,11 of the merit list on Ist August, 1995. Later on, in the tentative seniority list of all Assistant Engineers/Sub-Divisional Officers in BS-17 as on 20-2-2002, his name appeared at serial No,297.
The grievance of the appellant commenced by issuance of the impugned order by respondent No,1 dated 13th May, 1998, in which he was repartiated to his parent department i,e, Lahore Development Authority and the intervening period spent in the Communication and Works Department was to be teated on deputation. Appellant made a representation which was rejected." Being aggrieved the respondent approached learned Punjab Service Tribunal by way of appeal which has been accepted vide judgment impugned, hence this petition.
3. Mr. Muhammad Sharif Butt, learned ASC appeared on behalf of Province of the Punjab and urged strenuously that the learned Punjab Service Tribunal has not appreciated the legal aspects of the controversy in its true perspective which resulted in serious miscarriage of justice as the question of lien and deputation could not be examined property. It is contended that no civil servant could be absorbed in the borrowing department merely on the basis of consent having no legal sanctity whatsoever communicated by the parent department which was maneouvered by the respondent on political considerations. It is also pointed out that the matters of deputation and repatriation are always on provisional basis and cannot attain finality with reflux of time.
4. The respondent namely Ibrar Younas Butt appeared in person and strenuously controverted the viewpoint as canvassed by the learned ASC on behalf of the petitioner and supported the judgment impugned for the reasons as enumerated therein with the further submission that his absorption had attained finality a few years ago and being past and closed transaction it cannot be reopened on the ground which are not at all tenable in service laws. It is also pointed out that no political influence whatsoever was exerted but on the contrary his absorption was made strictly in accordance with law and procedure made therein after completion of all the necessary formalities and with the consent of parent department and the borrowing department.
5. We have carefully examined the respective contentions as agitated on behalf of the petitioner and for respondent in the light of relevant provisions of law and record of the case. The judgment impugned has been perused. It transpired from the scrutiny of the record that the respondent was initially appointed in the Lahore Development Authority (LDA) and his services were placed at the disposal of Communication and Works Department (C&W) on 23-14989 where he continued till 13- 5-1998 when he was repatriated to his parent department. It is to be noted that during the above mentioned period various developments had been taken place such as communication of 'no objection' for permanent absorption of respondent in the Communication and Works Department pursuant whereof he was permanently absorbed by means of order dated 6-8-1991 by the Communication and Works Department initially on probation for a period of two years which was also completed in the year 1993. The respondent also qualified departmental professional examination of Assistant Engineer/Sub-Divisional Officer on 1-8-1995. It is quite amazing that the petitioner woke from the deep slumber and order of repatriation to the parent department was passed after a lapse of about one decade which is not understandable. It is regretted to note that the respondent succeeded in getting appointment as Assistant Engineer in L.D.A. And his transfer (on deputation) to C&W Department and his subsequent absorption being blue-eyed chap of the then Chief Minister with the connivance of Director General of the L.D.A. And Secretary, C & W Department who had no moral courage to say 'no' to their political Bosses and obeyed the direction made in violation of the prescribed procedure of law and merit without any reluctance just to save their lucrative posting as in case of 'no' to Chief Minister they could have been transferred. "We need no stress here that a tamed subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative department of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their function in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within him competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action." (Zahid Akhtar v.
Government of Punjab PLD 1995 SC 530). This is highly deplorable and shameful condition which cannot be appreciated. After termination of his lien in the parent department how his services could have been repatriated that too without proper opportunity of hearing as certain vested rights had accrued in favour of respondent after permanent absorption on the direction of competent authority. The. Repatriation of respondent could not be directed in an arbitrary and capricious manner as no such unfettered powers have been conferred upon the Chief Secretary to pass such orders which are not in accordance with the relevant provisions of law and rules made thereunder. After a lapse of more than a decade the validity of initial appointment and subsequent absorption cannot be questioned save in accordance with law.
6. We have also adverted to the contention of learned ASC for petitioner that the performance of the respondent is not above board who is also facing some inquiries on account of corruption. The proper course for the petitioner would be to complete that inquiry in accordance with law and in case the allegation of corruption is proved the respondent could be shunted out from the service in accordance with law. It is not conceivable that how a corrupt civil servant would become an angel after his repatriation from one department to the other department. This would not be a solution in such-like problems. The learned Service Tribunal has dilated upon the controversy in a comprehensive meaner in the judgment impugned relevant portion whereof is reproduced hereinbelow for ready reference:- "5. Undoubtedly, the parent department where the appellant was appointed initially was the Lahore Development Authority where he acquired a lien against a permanent post of Assistant Director.
However, with the permission of the Lahore Development Authority, services were placed at the disposal of Communication and Works Department, on deputation, with effect from 23rd January, 1989. Thereafter, the appellant continuously worked in the Communication and Works Department and made efforts to be absorbed in the latter department through the aegis of the office of the Chief Minister and succeeded making the Secretary Communication and Works Department agree, who in order to implement the directive of the Chief Minister, sought permission from the parent department whether they did have any objection about the permanent absorption of the appellant in Communication and Works Department to which the Lahore Development Authority i,e, parent department, in categorical terms expressed no objection to the permanent absorption of the appellant in the Communication and Works Department. The appointment letter dated 6th August, 1991, indicated consent on the part of the Communication and Works Department to permanently absorb the appellant in the department and by doing so conferred on him status of an employee of the said department. Particularly, by laying their own terms and conditions with which appellant abided by taking the departmental examination of Assistant Engineer/Sub- Divisional Officer in which he was declared successful and later on his name was brought on the seniority list maintained by the Communication and Works Department. The necessary requisites of absorption after being relieved by the parent department with its express permission and taken by the borrowing department by permanently absorbing the appellant were fulfilled. The appellant served all kinds of nexus, connections and lien with his parent department rather commenced a new leaf in the Communication and Works Department by being permanently absorbed with express permission of the competent in the said department. Appellant could not be made stone between his new and old department by unilaterally sending him back to the Lahore Development Authority by use of the word "repatriation". The said word had lost its total efficacy, once the appellant was absorbed and taken in the Communication and Works Department, subject to certain stipulations which the appellant successfully completed and fulfilled. It was amazing rather interesting to hear the counsel for the Lahore Development Authority, the former parent department of the appellant, who did not mince his words by unequivocally submitting that the Lahore Development Authority does not want the appellant back into its folds as the appellant is no more their employee having his lien terminated with his own consent after being allowed by the Lahore Development Authority on the request of the Communication and Works Department who gave their consent to absorb appellant permanently in their department. There is also abundant philosophy in the argument of the appellant that he cannot be thrown unilaterally at the mercy of the whims of the department where he has been absorbed. Some reasons have to be given so that he may be provided an opportunity to meet them. By stating that the appellant was facing enquiries did not mean that he should be sent back to wilderness, as his former parent department had severed all connections by terminating his lien with permission and by the willingness of the Communication and Works Department to absorb him. If any enquiries are pending against the appellant in communication and Works Department, the proper course is to proceed against him in accordance with law and not to get rid of the so called evil by dispatching him to his former department where he is totaly alien now.
6. The permanent absorption of the appellant in the Communication and Works Department having treated him as an incumbent on their rolls, the matter of deputation and repatriation becomes a past and closed transaction and cannot be raked up by having recourse to a mode, which has become extinct. Upshot of the discussion is that the order impugned dated 13-5-1998 and 10-4-2002 passed by respondent No,1 being based on totally wrong premises cannot be allowed to shine any more and are accordingly set aside by accepting the appeal. There shall be no order as to costs."
7. The conclusion as arrived at by the Punjab Service Tribunal being well based does not warrant any interference. As mentioned hereinabove the order of repatriation has been passed without affording proper opportunity of hearing to the respondent which resulted in serious miscarriage of justice. The petitioner may initiate action in this context subject to all legal exceptions after affording proper opportunity of hearing to the respondent and decision be made strictly in accordance with law and rules made thereunder.
' The petition being meritless is dismissed and .