Through this Constitutional petition, the petitioner has challenged the order dated 29.08.2007 passed by Respondent No, 1, whereby his transfer order dated 21.08.2008 has been recalled.
2. Petitioner is serving in Agriculture Department as Office Assistant since his promotion in year 1988. On 21.8.2007 he was transferred by Respondent No, 1 vide Office Order No, 6704-8, from the office of Respondent No, 2 to the office of Respondent No, 3, vice Respondent No, 4, where he assumed the charge on 23.8.2007. But only a week thereafter vide Order No, 6833- 36/EDOA/MN/Estt., his transfer was cancelled allegedly under the instructions of Minister for Social Welfare, Punjab, Lahore. It has been alleged that Respondent No, 4 hails from the constituency of Rai Mansab Ali the then Minister for Social Welfare. Punjab, Lahore and is very close to him. He has manoeuvred the impugned order for cancellation of petitioner's transfer through influence of the said Minister, therefore, the same is void, illegal and without lawful authority.
3. Respondent No, 4 has filed his parawise comments whereby he has denied his acquaintance with the then Minister for Social Welfare, Punjab, Lahore and has submitted that in fact the petitioner himself managed his transfer in the office of Respondent No, 3 by using some extraneous influence upon Respondent No,
1. Further submitted that under Rule 16 of the Punjab District Government Rules of Business, 2001, Respondent No, 1 was not the competent authority to issue transfer order dated 21.8.2007, therefore, he rightly recalled the same through impugned order.
Objection to maintainability of the writ petition in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 has also been raised.
4. Arguments of learned counsel for the petitioner, learned Assistant Advocate General and learned counsel for Respondent No, 4 have been heard and record available on the file perused. Learned counsel for the petitioner has reiterated the contentions recorded in the petition and in support of his case has relied upon "Roshan Khan versus Director Schools & Literacy, NWFP, Peshawar" (NLR 2007 Service 49) and "Zahid Akhtar versus Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others", (PLD 1995 SC 530). In the earlier case, the Hon'ble Supreme Court of Pakistan has held that transfer of a civil servant under orders of Minister would be void being violative of Rule 21(2) read with Schedule V of Rules of Business, 1974.
In this case, Roshan Khan-appellant a Senior English Teacher of District Shangla was transferred to Government High School Kuz. Pao, under the political influence of Pir Muhammad Khan, MPA.
Feeling aggrieved, he challenged his transfer order before NWFP Service Tribunal, Peshawar, but his appeal was dismissed and his transfer order was considered valid within the contemplation of Section 10 of NWFP Civil Servants Act, 1973. Against the judgment of NWFP Service Tribunal, he sought special leave to appeal from the Hon'ble Supreme Court of Pakistan. His petition for leave to appeal was converted into appeal and the same was allowed. It was observed by their lordships' in Para No, 14 of their Judgment that:-- "It is for quite a long time that some of the peoples representatives, whose sacred and scholarly job was to legislate while honourably confining themselves to the dignified mansions of the assemblies, have started undesirable, dishonest and corrupt interference into the purely Executive/ Administrative domain of appointments, promotions and transfers of civil servants. By now it has turned into a mafia that does not care about Law, Rules, Regulations. Rules of Business and repeated deprecation by the Supreme Court of Pakistan and High Courts. All forces seem to have whittled down before the exploitation and blackmail by some people whose weight, and not legislation, matters. This is bound to destroy the institutions, if not already destroyed".
5. As evident from the judgment, the petitioner/appellant approached the Service Tribunal in the first instance for redressal of his grievance and then went to the Apex Court, whereas in this case the petitioner has directly approached this Court through writ petition without having recourse to the Service Tribunal.
6. In Zahid Akhtar's case (PLD 1995 SC 530) also involvement of the politicians in the administrative matters of the departments has been strongly condemned. Role of the administrative Heads of the Departments who submit to the whims of the elected representatives has also been deprecated and denounced. It has been observed that Government Servant should comply only with those orders/directions of his superior which were legal and within his competence. Compliance of illegal or an incompetent direction/order could neither be justified on the plea of same having been issued from superior authority nor same could be defended on the ground that non-compliance thereof, could have exposed concerned Government Servant to the risk of disciplinary action.
In this case also the petitioner directly invoked the jurisdiction of High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore his petition was dismissed being not maintainable in view of the bar contained in Article 212 of the Constitution. Thereupon, he filed petition for leave to appeal before the Hon'ble apex Court but the same was dismissed. Copy of this judgment was sent to the Government of Punjab for circulation among all the departments for future guidance.
7. Now I advert to the objection against the competence of Respondent No, 1 to issue petitioner's transfer order dated 21.8.2007. In pursuance of devolution plan, the Government of Punjab vide Notification No, SOV(LG)5-9/2001, dated 21.08.2001 has framed District Government Rules of Business, 2001. For facility of reference Rule 16 ibid is reproduced as under:--
(1) The Authorities for postings and transfers of officers/officials in the district shall be as follows:-- Category of Officers/officialsAuthority
(i) S-19 and above excluding EDOs & District Officers.Zila Nazim (ii)BS-11 to BS-18 DCO (iii)BS-1 to BS-10 EDO
(2) The normal tenure of these posts shall be two years."
8. The above rule shows that, District Coordination Officer is the competent authority for the transfer of the officers/officials of BS-11 to BS 18 whereas the Respondent No, I is competent to transfer the officials upto BS-10 only. The petitioner is admittedly in BS-11 while Respondent No, 4 is in BS-15. Therefore, by virtue of the above-quoted rule, Respondent No, 1 was not competent to pass the transfer order dated 21.08.2007 or to recall the same vide impugned order dated 29.8.2007. On query of this Court, he has frankly conceded that he was asked by the then Minister for Social Welfare, Punjab, Lahore to cancel transfer of the petitioner in the office of Respondent No,
3. Thus, on this ground also impugned order is void ab initio having been passed under the unlawful directions of the Minister.
9. However, since the impugned order is appeal able before the Punjab Service Tribunal and is not assailable before this Court in view of the bar contained in Article 212. of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, the writ petition is not competent. Hence the same is dismissed.