' SULTAN MAHMOOD KHATTAK MEMBER.--- This appeal has been filed by the appellant against the order dated 9-9-2010 whereby he has been prematurely transferred and against the order dated 29-9-2010 whereby the departmental appeal of the appellant regarding transfer from Agency Education Office Mohmand Agency to GHSS Ghalanai Mohmand Agency has been rejected.
2. Brief facts of the case as averred from the memo. Of appeal are that lastly the appellant was transferred to Agency Education Office vide order dated 12-2-2010. The appellant performed his duty in AEO office up to the entire satisfaction of his superior and there was no complaint against him.. The appellant was transferred on 14-7-2010 prematurely against which he filed a departmental appeal on 15-7-2010. On acceptance of appeal of the appellant, the transfer order dated 14-7-2010 was cancelled on 6-8-2010. The appellant was again transfer just after seven months on 9-9-2010 against which he filed a departmental appeal but the same was rejected without any reasons on 29-9-2010, hence the present appeal.
3. The respondents contested the appeal and filed their written replies. Arguments heard and file perused.
4. At the outset of the arguments, the learned A.-G.P raised the point of jurisdiction to the effect that this Tribunal has got no jurisdiction to deal with the terms and conditions of the civil servants working in FATA Areas and thus the appeal is not maintainable. The learned counsel for the appellant in response argued that according to Presidential Order No, 13 of 1972, promulgated on 12-4-1972, has clarified the position and status of civil servants working in FATA areas. According to section 2 read with section 3 of the said Order, the employees working in connection with . The affairs of FATA shall, as from the appointed day, be the employees of Provincial Government on deputation to the Central Government and shall work under the over-all administrative control of the Provincial. Government on the same terms and conditions of service as respects remuneration, leave, and pension and the same rights as respects disciplinary matters or tenure of office, as were applicable to them immediately before that day but without deputation allowances."
5. The learned counsel for the appellant further contended that according to Article 241 of the Constitution, all existing Laws will remain in field until or unless amend from time to time by Federal or Provincial Government. He further contended that Tribal Areas are included within the territorial limits. The learned counsel for the appellant also relied on Articles 268 and 269 of the Constitution, in which it is clearly mentioned that all the existing Laws will continue in force until altered, repealed or amended by the appropriate legislature and all Laws proclamations, Presidential Order etc. Issued' between 20-12-1971. To 20-4-1972 have been validated and as such the Presidential Order No,13 of 1972 issued on 12-4-1972 has been declared protected and has not been altered or modified so far. The counsel for the appellant also referred to section 1(3) of the Service Tribunals Act, 1974, which applies to all civil servants "wherever they may be means that irrespective of the posting area of the civil servant their appeals against final order will lie to this Tribunal being Provincial Civil Servant declared as such through the above referred Presidential Order.
6. The Tribunal fully agree with the contention of the learned counsel for the appellant and hold' that the employees working in connection with the affairs of FATA are Provincial Civil servants and would prefer their appeals before the Tribunal in respect of any final order in respect of any terms and conditions of service, hence the instant appeal is well within the jurisdiction of this Tribunal and maintainable.
7. The learned counsel for the appellant also argued that impugned order is against the law, facts and norms of justice. The impugned order is premature and has not been passed in the public interest; neither there were any exigency of service. The appellant has not used political or extraneous influence. He performed his duty at A.E.O office satisfactorily and there was no complaint against him. The impugned order has been passed in order to accommodate their favorites at a choice posting. The impugned order is against the law, rules and against clauses (i),
(ii) and (iii) of the transfer policy of the Government dated 15-2-2003. The impugned order has been passed by the incompetent authority i.e, Director instead of Agency Education Officer. No reason has been given in the rejection order. In this respect he relied on 1991 SCM R 2330(e). He prayed that the appeal may be accepted.
8. The A.-G.P. Argued that the appellant has been treated by the authorities in accordance with law, rules and policy as such the orders are just, fair and tenable in the eyes of law. The order was issued in the best interest of public at large, as well as in the exigencies of service. The appellant has submitted departmental appeal to a wrong forum. No political interference has been used by the replying respondent rather the same was used by the appellant itself. Under section 10 of the Civil Servant Act, 1973, the appellant is liable to serve where posted by the appellate Authority and pressed that the appeal may be dismissed with cost. The counsel for private respondents has the same views as that of the A.-G.P. Referred to above. They did not raised objections on the maintainability of the appeal.
9. The Tribunal observes that the appellant was transferred from one office to another repeatedly within a short span of seven months while private respondent has been posted against the post of appellant. The appellant has not completed his normal tenure which is against the transfer policy of the Government. The impugned order is also against the spirit of Notification dated 3-8-2009 wherein competency has been entrusted to Agency Officer for Employees of BPS-1 to BPS-10 and to B Political Agent for employees from BPS-11 to BPS-15. Thus the impugned order is without lawful Authority.
10. In view of the above, the appeal is accepted, the impugned order dated 9-9-2010 is set aside and the appellant to continue against the post of Junior Clerk Office AEO. Mohmand Agency till completion of his normal tenure according to the policy of the Provincial Government. The parties are, however, left to bear their own costs. File be cosigned to the record.