1. ' MRS. SYEDA TAHIRA SAFDAR, J.---It is contended by the petitioner that while he was working as SDO-III(B&R) Provincial, District Qilla Saifullah .With additional charge of Ex. Engineer (B&R)
2. Provincial District Qilla Saifullah he was transferred and posted as XEN (B&R) Provincial District, Ziarat through Notification dated 7-5-2009. Thereafter, he assumed charge of the post, but within three months he was again transferred, and directed to report to respondent without any complaint. The charge of said post was given to one Faqir Muhammad SDO-II (B&R) Provincial, District Ziarat/respondent No,2 through Notification dated 31-8-2009. It is his contention that two illegalities are committed by the respondent while transferring him, as he (petitioner) was not allowed to remain on the post at least for two years, while a junior officer of low grade was posted on the post. Further, the action is taken in violation of the policy laid by the Government of Balochistan on 12-3-2003. As such the Notification dated 31-8-2009 is unwarranted and not maintainable. He has prayed for setting aside of the notification, while he be allowed to complete his tenure.
3. ' During course of hearing one Faqir Muhammad filed an application under Order I, rule 10, C.P.C. For impleading him as party, the said application was allowed through order made on 28-9-2009.
4. Whereafter, both the respondents filed their parawise comments.
5. Respondent No,1 strongly contested the petition and raised objections on its maintainability. It is their contention that the Government has the authority to adjust any suitable employee against any post to facilitate the general public and for proper administration. The petitioner has no right to claim particular posting of his own choice, thus his claim is illegal. As the dispute in respect of posting and transfer of a civil servant falls within the terms and conditions of service, which cannot be challenged by invoking constitutional jurisdiction of this Court. Further, petitioner is not an aggrieved person within meaning of Article 199 of the Constitution. On merits it is contended that the petitioner was holding additional charge of the post of Ex. Engineer Provincial (B&R) District Killa Saifullah since 12-3-2008 to 7-5-2009, while large number of complaints existed against his conduct and behaviour coupled with other administrative problems, as such the powers are validly and competently exercised in the interest of general public and to safeguard the liabilities of the Government. The petition has been filed with ulterior motives. Dismissal of the petition has been prayed.
6. ' In his reply respondent No,2 Faqir Muhammad has raised objection on jurisdiction of the Court, as matter pertains to enforcement of terms and conditions of service. He has further asserted that the petitioner held the additional charge of Ex. Engineer Provincial B&R Killa Saifullah from 12-3-2008 till 7-5-2009 when he was SDO-III at Killa Saifullah. Further, the petitioner has misstated the facts.
7. Furthermore, several officers of the Department are holding charge of Ex-Engineer in C & W Department in addition to their own duties. Moreover, it is the Department who has to seize the exigencies of the service in which posting and transfer can be made. The petitioner cannot compel the Department for posting of his own choice. He being influential person, thus he had obtained posting of his own choice. He has also prayed for dismissal of petition being frivolous and misconceived.
8. The petitioner is aggrieved of Notification dated 31-8-2009, whereby he has been transferred from District Ziarat and directed to report to Secretary, C&W Department. He claimed this order to be illegal, as he was not allowed to remain on the post at least for two years and also posting of a junior officer of low grade in his place on said post. It is also asserted to be in violation of policy laid by the Government. The petitioner has filed the decision taken by the Provincial Government bearing date 12-3-2003, wherein item No,2 is titled as posting and transfer, the perusal reveals that sub item No,(iv) and (v) are relevant, which speaks as under:-- "(iv) Frequent posting/transfer should be avoided;
(v) A reasonable tenure of posting at a station may be fixed i.e, at least two years."
9. ' It may be so, but it is an admitted position that the petitioner is serving in Communication, Works, Physical Planning and Housing Department, while presently he is at rank of Engineer B-18, while on the other hand respondent No,2 is also serving in same Department as Assistant Engineer B-17.
10. Services of both of them are covered under term Civil Service, as such they are civil servants within the meaning of Balochistan Civil Servants Act, 1974, the provisions of this Act are applicable on their services. As per section 4 of the Act of 1974 the civil servant shall hold office during the pleasure of the Government of Balochistan, while as per section 10 of the same every civil servant shall be liable to serve anywhere within or outside the province with certain exceptions as provided therein.
11. Section 10 speaks as under:-- "10. Posting and transfer.--Every civil servant shall be liable to serve anywhere within or outside the Province of Balochistan, in any post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: ' Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: ' Provided further, that where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
12. ' Thus in view of the same the petitioner being a civil servant is liable to serve within the province or outside it, while respondent No,1 being the competent authority has the authority to make transfer and posting of its employees as per provisions of mentioned section. Therefore, to this extent there is no illegality in the impugned notification. The only thing which is required to be seen that whether this power has been exercised legally and properly or not by the authority. The petitioner has pointed out two illegalities in the same. According to him he was not allowed to remain on the post for at least two years, further transfer of junior officer of low grade to the post of higher grade.
13. Further the act is also in violation of the policy laid down by the Government on 12-3-2003. The relevant portion of mentioned policy is reproduced in preceding paragraph. In reply the official respondent strongly contested the same and asserted exercise of powers vested in it in lawful manner. Keeping in view the reply it is apparent that the transfer and posting in question are made on some complaints especially of M.P.A. Concerned made to Chief Minister and Minister for Communication and Works Department. Respondents along with their replies annexed the copies of mentioned complaints. The perusal of the same reveals that one Moulvi Abdul Samad, Minister for Forest and Forest Life requested for transfer of the petitioner and posting of a specific person i.e, respondent No,2 on his place. Some other applications, filed by certain persons complaining about attitude of the petitioner, are also placed on record. There may be complaints against the petitioner, but the will and wish of posting some specific person against said post after transferring the incumbent of the post that too made by some Minister seems to be somehow strange and also mala fide. The competent authority has to take the decision keeping in view the circumstances of the case, while has to exercise its powers in accordance with law. In case there are complaints against the petitioner, disciplinary action can be taken against him, only transfer and posting at some other place will not serve the purpose nor it is a solution.
14. ' It is also contended by the petitioner that a junior officer of low grade is posted on the post this fact is not denied by the official respondent, but it is their contention that there is no violation of rules, in addition it is further contended that the petitioner being junior officer in grade 17 was also holding additional charge of Executive Engineer B-18 from 12-9-2008 to 7-5-2009. It may be so, there may be other examples of same nature, but this fact does not validate the action of the authority. Because posting of au officer of lower grade on a post of higher grade in presence of officer of similar grade is bad in eyes of law and never appreciated. In case an officer of similar grade is not available, then there is an excuse of posting an officer of lower grade on higher grade.
15. But in present case it is not so. Admittedly several officers are available, the action of the concerned authorities are in violation of this principle.
16. ' As far as objection in respect of jurisdiction of this Court is concerned, as the posting and transfer of a civil servant is not included in terms and conditions of his service, as such it does not come within the jurisdiction of Service Tribunal established under provisions of Balochistan Service Tribunal Act, 1974, having exclusive jurisdiction in respect of matters relating to terms and conditions of service of civil servants and for matters concerned therewith or ancillary thereto.
17. Except where a civil servant is recruited specifically to serve in a particular area or region, which is included in terms and conditions of his service. Thus keeping in view this legal position in case there is violation of law in respect of transfer and posting, the Service Tribunal has no jurisdiction to entertain the matter. Thus in absence of any other rather adequate remedy available in the matter, the constitutional jurisdiction of this Court can be invoked by an aggrieved person. As such this Court has the jurisdiction to entertain the present petition.
18. ' Keeping in view the above-mentioned facts it has been observed that the transfer and posting in question are made only on wish of some Minister, which is neither legal, nor proper. Though the concerned authorities have the power to make transfer and posting of their employees, but this power must be exercised with due care and caution and without mala fide intention, as it is done in present case. In case the concerned authorities intend to transfer the petitioner from the present post, they may do so, but only in accordance with law. In view of above discussion the petition is allowed. The impugned Notification dated 13-8-2009 is hereby set aside.