QALANDAR ALI KHAN (CHAIRMAN).--- Inamullah, Patwari/appellant, lodged this Service Appeal against posting/transfer order, dated 27-4-2010 of District Officer, Revenue & Estate, Peshawar (respondent No,3), whereby, he was transferred from Patwar Halqa Tukra No,3 Patwar Halqa Sardar Ghari and private respondent No,4, Qaisar-ud-Din, was transferred in his place to PH Tukra No,3 from PH Sardar Ghari. . In his appeal, the appellant averred that he was transferred to PH Tukra No,3 on 30-1-2010 but within three (3) months of his transfer to the said Patwar Halqa, private respondent No,4 managed to get himself transferred back through the impugned order, dated 27-4-2010 to PH Tukra No,3 by using political pressure and influence, against which he preferred departmental appeal dated 11- 5-2010, which was rejected by the Senior Member Board of Revenue, Khyber Pakhtunkhwa, Peshawar (Respondent No,2) on 24-5-2010, hence this appeal, inter alia, on the grounds that normal tenures of posting was three years under the declared policy of the Provincial Government, but he was transferred from the Halqa within three months of his transfer from a Halqa where he had already served for more than three years; that private respondent No,4 was interested to retain his posting at PH Tukra No,3, therefore, he maneouvered to get himself transferred back to the same Patwar Halqa on the basis of recommendation of the local MPA namely Atif-ur-Rehman Khalil; that the impugned transfer order was totally in violation of posting and transfer policy; that the Superior Courts have also held that posting and transfer should be in the interest of public and not on the recommendations of the MNAs/MPAs; that respondent No,3 did not apply his independent mind; and that under the policy postings/transfers are to be made in the months of March, and July, while the impugned order has been made in the month of April, without obtaining relaxation of ban from the Chief Minister.
3. The official as well as private- respondent were summoned, who appeared, but private respondent No,4 later on did not appear after his initial appearance, and was placed ex parte on 29-6-2010. On the first date of appearance i.e, 18-6-2010, Tehseenullah, Patwari, moved application for his impleadment as a respondent in the case, and due to no objection of the appellant, he was impleaded as respondent No,5 in the appeal. Both the official respondents as well as private respondent No,5 resisted the appeal by filing their separate written replies/ comments.
4. In their written reply/coments respondents Nos.2 and 3, while brushing aside allegations of the appellant with regard to his transfer on political considerations, contended that recommendations of the local MPA, being representative of the public, cannot be ignored altogether. They contested claim of the appellant to the effect that his transfer was not in accordance with the Government policy, and defended the impugned order for being in line with the Government policy.
5. In his written reply/comments, private respondent No,5 vehemently resisted the appeal by claiming the same result of collusion between the appellant and private respondent No,4 on the ground that he had filed Appeal No, 101 of 2010 against private respondent No,4, which was accepted and in order to frustrate order/decision of the Tribunal in the said appeal, the instant appeal has been lodged. The respondent further contended that private respondent No,4 also moved application for setting aside ex parte proceedings against him, but his application was rejected and there-after he and appellant in the present appeal joined hands to frustrate judgment of the Tribunal in his favour by moving appeals and applications and securing stay orders both from the department and the Tribunal.
6. We have heard arguments of the learned counsel for the appellant, A.A.-G. And learned counsel for private respondent No,5 and have perused the record.
7. Before proceeding to examine the respective claims/contentions of the parties we are constrained to observe at the very out set that the department i.e, Board of Revenue, and particularly the District Officer (R&E) Peshawar (respondent No,3), have played a dubious and questionable role in the whole, affair because the respondent not only issued orders in succession, with brief intervals, not on the basis of his independent judgment or in accordance with the rules or Government policy, but on the directions/recommendations of either SMBR or the local MPA; but also deliberately concealed his subsequent orders from the Tribunal at the time of submission of his written reply/ comments along with the SMBR in earlier decided appeal, which created all this mess. Had he acted according to the rules, while applying his independent mind, without succumbing to political pressure and influence, there would probably have been no cause of grievance to any one. Needless to say that 'Authority' vested in a government servant is a public trust, which must be exercised with a sense of accountability in this world and the world hereinafter. The inappropriate exercise of such authority by individuals invariably result in not only lowering image of the Institutions in the eyes of general public but also tend to put their credibility at stake. We must not overlook role of such like individuals in bringing bad name to the country in general and the province in particular, as allegations of bad governance and corruption are too glaring to be ignored. Through his questionable conduct, the DOR has proved that he has scant regard for the rules and Government policy and also lacks the courage to withstand pressure. His conduct, as such, has left much to be desired.
8. We would also like to observe that all the transfers by the same `Authority' whether that of the appellant or private respondents, have been made within the radius of few kilo meters in Peshawar.
Question arises whether they are the only honest and efficient Patwaris in the Revenue Department to be accommodated in such an extraordinary way and also whether there is dearth of honest and competent Patwaris in Peshawar District. The discretion of the Authority in the matter of postings/transfers must be exercised in a manner which encourages honest and competent civil servants on the one hand and discourages the dishonest and inefficient government servants on the other; but we have, all along, observed the reverse.
9. It may also be observed that the posting/transfer policy of the Provincial Government, circulated vide letter dated 15th February, 2003, has restricted discretion of the 'Authority' to greater extent by obligin him to make posting/transfer in the public interest, besides prescribing normal tenure of posting as three years, and fixing months of March and July for posting/transfer. The 'Authority' in the instant case has openly flouted the Government policy and has acted in a manner not commensurate with his position as Head of the District Revenue Department.
10. Needless to say that a civil servant is liable to serve anywhere within or outside the Province on any post under the Federal Government /Provincial Government or Local Authority under section 10 of the N.-W.F.P (Khyber Pakhtunkhwa) Civil Servants Act, 1973. Additionally, section 4 of the N.-W.F.P (Khyber Palkhtunkhwa) Service Tribunals Act, 1974 bars appeal "to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade." As such, it is not a vested right of a civil servant to be posted against a particular post or at a particular place.
11. We entirely agree with the learned counsel for private respondent No,5 that judgment/decision in favour of private respondent in his Appeal No,101 of 2010 which according to the learned counsel has attained finality as no appeal has been lodged against the said judgment/decision in the august Supreme Court of Pakistan and application for setting aside ex parte proceedings by the private respondent in that appeal and private respondent No 4 in this appeal has also been rejected, cannot be reviewed in this appeal. We may clarify that larger Bench, also including a learned Member of the Bench which decided Appeal No,101 of 2010, was constituted as dispute in both the appeals was with regard to the same post/position and judgment/order of the said Bench was required to be taken into consideration.
12. Adverting to the instant appeal, we have observed clear deviation from established law/rules, which would render the impugned orders of the Authority, dated 27-4-2010 and that of the Appellate Authority, dated 24-5-2010 invalid and nullity in the eyes of law. As observed above, the impugned order, dated 27-4-2010 has been made within three months of the earlier transfer/posting order in violation of the Government policy, not in the public interest, but, admittedly, on the recommendation of local MPA, as is evident from letter of the MPA, dated 23-4- 2010. Similarly, the Appellate Authority (Respondent No,.2) acted in arbitrary manner by writing 'rejected' on the departmental appeal of the appellant without furnishing any reason for the rejection order, thereby violating the mandatory provision of section 24-A, (2) of the General Clauses Act, 1897. The impugned orders, as such, are not sustainable in law.
13. However, since we are not here to sit on review on the judgment/decision of another Bench, which is legally judgment/decision of the Tribunal, and which, as such, will remain intact; therefore, we would rather send back/remand departmental appeal of the appellant to the Appellate Authority (Respondent No,2) to re-examine the impugned transfers/postings in the light of established law/rules and Government policy as well as above observations, and pass a speaking order, with reasons, in accordance with the above referred law/rules. The SMBR should also look into the conduct of the DOR in the light of the above findings and form his independent opinion whether the incumbent is suitable/fit for the job. We need not stress that the SMBR should independently determine suitability of a Patwari for this particular post keeping in view his service record, honesty and efficiency in order to rectify the wrongs committed earlier and in order to restore confidence of the general public in the Institution, which is, unfortunately, touching the lowest ebb of its credibility.
' The appeal is disposed of accordingly, with no order as to costs.