' MRS. AYESHA A. MALIK. J.--- This common judgment will dispose of Writ Petitions Nos.22405 and 22406 of 2012. In Writ Petition No,22405 of 2012, the petitioner has challenged letter dated 7-9-2012 issued by the respondent No,1, notification of transfer dated 29-5-2012, memo. Bearing No,3(3)/2012-E.3 dated 11-7-2012 and memo. Bearing No,3(3)/2012-E-3 (Police) (Pt-II) dated 4-9- 2012. In Writ Petition No,22406 of 2010, the petitioner has challenged letter dated 7-9-2012, notification of transfer dated 29-5-2009 and memo. Bearing No,3(3)/2012-E-3 (Police)(Pt-II) dated 4-9-2012.
2. The case of the petitioner is that the petitioner in Writ Petition No,22405 of 2012 is a PSP Officer in BS-19 having the domicile of Punjab and having served 7 years 5 months and 20 days outside the Province of Punjab. The petitioner in 22406/2012 is a PSP Officer in BS-19 having the domicile of Punjab, who has served 6 years 23 days outside the Province of Punjab. The grievance of both the petitioners is that by virtue of the impugned letter, notification and memo, the respondent No,1 has acted in an arbitrary manner, without adhering to the policy which governs the transfer and posting of, amongst others, BS-19 officers to the Province of Balochistan. It is the case of the petitioners that the petitioners having served outside their province for more than five years, are not eligible for transfer to Balochistan in terms of the Rotation Policy of 22-7-2000 and the Amended Rotation Policy of 28-8-2012. Learned counsel argued that the respondent No,1 has set clear categories which forms the criteria for transfer of PSP officers to Balochistan vide the Amended Rotation Policy, dated 28-8-2012 and that for no plausible reason they have ignored the policy and have issued orders for the transfer of the petitioners to Balochistan.
3. The brief facts are that the respondent No,1 issued a Rotation Policy on 22-7-2000 (Rotation Policy). In terms of the Rotation Policy, PSP officers were liable to serve in at least two Provinces during their career, however in exigencies of the service; an officer may be posted to a third Province. The main feature of the Rotation Policy was that officers were to be transferred on the principle of "least rotated first transferred". Thereafter, on 28-8-2012, the Rotation Policy was amended with respect to postings to the province of the Balochistan vide Notification No,F.10/2/2006/E-5 (the Amended Policy). At this point, five categories were created which provided the criteria on the basis of which posting and transfer to the province of Balochistan was to be effectuated. In terms of the categories provided the petitioners fell in category No,4 being officers who have served outside their province of domicile and have not served in Balochistan. In terms of the Amended Policy, the first category is of officers who have the domicile of Balochistan and are serving outside Balochistan. The second category is of officers serving in the province of their domicile who have never been posted outside of their Province. The third category of the officers is those who remained posted in a province other than the province of their domicile. The case of the petitioners is that the five categories have been created to ensure transparency in selection and should be followed in the sequential order, giving priority to serials 1, 2 and 3 before enforcing serial No,4. They have also provided a list of PSP Officers BS-19 who are available in terms of the Amended Policy. They argue that the respondents are required to exhaust the first three categories before enforcing category 4. Furthermore the petitioners also argued that in terms of the list they fall at serial Nos.46 and 37 respectively. Therefore, by way of priority the respondents should transfer the other officers who are eligible for transfer and whose names are placed ahead of the petitioners. It is the case of the petitioners that respondent No,1 without any reason or explanation has totally disregarded its own Rotation Policy and Amended Policy. The Amended Policy cannot be disregarded as it structures the discretion exercised by the respondents when transferring officers to Balochistan. Learned counsel also argued that the Amended Policy was the result of the order in C.P.No,77/10 by the Hon'ble Supreme Court. By ignoring its own criteria and categories the respondent No,1 has acted in an arbitrary and capricious manner.
4. Learned Deputy Attorney General on behalf of respondent No,1 has raised an objection with respect to the maintainability of the petitions. He argued that the petitioners are civil servants and the matter of transfer is a part of the terms and conditions of their service, meaning thereby that they cannot raise this issue in constitutional jurisdiction as there is a clear bar under Article 212 of the Constitution. He further argued that the petitioners are relying on a policy which cannot be enforced in constitutional jurisdiction. He argued that it is the prerogative of the respondent No,1 to decide where to transfer the petitioners and the petitioners are bound by the terms of their contract to accept all postings. Furthermore the respondent No,1 can transfer the petitioners for administrative reasons. Even otherwise the respondent No,1 is not bound by the Amended Policy nor bound by the sequential order of categories provided in the Amended Policy. In support of his arguments he has placed reliance on the law laid down in cases titled "Mushtaq Ahmad v. Ch. Sneed Ahmad and another" (1996 SCM R 1649) and "Khalid Mahmood Wattoo v. Government of Punjab and others" (1998 SCM R 2280).
5. In response to the arguments raised on maintainability learned counsel for the petitioners argued that notwithstanding the fact that the petitioners are civil servants the issues raised in the instant petitions can only be decided in constitutional jurisdiction. In the first case, he argued that there is no transfer order meaning that there is no impugned or appealable order. The first order for transfer was issued by the respondent No,1 on 29-5-2012. Thereafter, upon the release of the petitioners by the Government of Punjab another order was issued on 7-9-2012. The petitioners filed a representation before the Chief Secretary who issued his order on 12-6-2012 wherein the transfer notification with respect to the petitioners was cancelled being contrary to the Rotation Policy. Then on 3rd August, 2012 by virtue of a notification issued in favour of the petitioners, the orders requiring the petitioners to report to the Government of Balochistan was withdrawn by the respondent No,2.
Hence there is no appealable order for the petitioners to challenge. He argued that the petitioners have challenged the arbitrary manner in which a decision has been made, despite the fact that clear cut guidelines are available to respondent No,
1. On the question of enforcing and relying upon a policy, counsel for the petitioners sites case-law titled "Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others" (PLD 1990 SC 1092) wherein it was held that discretion must be exercised fairly and rationally. He has placed reliance on a case titled "Tariq Aziz ud Din and others: in re:" (2010 SCM R 1301) which provides that discretion must be exercised in accordance with guidelines and not in an arbitrary and capricious manner. More importantly it should be exercised reasonably and subject to the 'guidelines laid down.
6. I have given due consideration to the arguments raised by respondent No,1 and the counsel for the petitioners with respect to maintainability of the instant writ petition. Although the contentions of the learned Deputy Attorney General are correct with respect to the bar of Article 212 under the Constitution, I find that the case of the petitioners falls outside the purview of the bar. Even though the petitioners are civil servants and have a remedy and a forum available to them where they can challenge a transfer order, the nature of the dispute in the instant petitions is not of a transfer simpliciter. In this case the Federation respondent No,1 made a comprehensive policy to ensure that the process of transfer is transparent and that no officer should resist the posting and transfer to Balochistan. The Amended Policy was made pursuant to and in compliance with the orders of the Hon'ble Supreme Court in C.P.No,77 of 2010 being the Missing Persons Case. The respondent No,2 is resisting the transfer and posting of the petitioners, reasoning that the two officers cannot be transferred under the Amended Policy, as their transfer is in violation of the categories set out under the Amended Policy. Furthermore, the respondent No,2 has written to the respondent No,1 that other officers can be identified and transferred in terms of the Amended Policy. Accordingly on 3-8-2012 the respondent No,2 withdrew its orders to transfer the petitioners to Balochistan. On 7-9- 2012 the respondent No,1 required the respondent No,2 to relieve the petitioners for transfer to Balochistan. Hence, respondent No,1 and respondent No,2 are in disagreement over the posting of the petitioners. As a consequence of the disagreement between respondent No,1 and respondent No,2, and in the absence of a valid transfer order, the petitioners are not hit by the bar of Article 212 of the Constitution. Under the circumstances, I find these petitions to be maintainable.
7. Now to proceed with the merits of the case. The respondent No,1 has argued that the respondents are obligated in terms of the orders of the Hon'ble Supreme Court dated 23-5-2012 in C.P.No,77 of 2010 to ensure that PSP officers are duly posted to Balochistan to meet up with the requirements in the said Province. One of the concerns raised by respondent No,1, as recorded in the said orders is that officers resist being posted to Balochistan. Hence to comply with the orders of the Hon'ble Supreme Court the Rotation Policy was amended in August, 2012. Learned D.A.-G also argued that the respondent No,1 has been transferring officers regularly and as such it is not exercising a pick and choose policy. He states that in BS-19 four officers were notified for transfer to Balochistan in category I of the Amended Policy and stated that more than 15 officers have been posted to Balochistan subsequent to the orders of the Hon'ble Supreme Court in terms of the Amended Policy. He also argued that transfer is a part of the terms and conditions of the service of the petitioners and they should comply with the orders of the respondent No, 1.
8. I have heard the arguments rose by both the learned counsel and reviewed the record.
9. The policy for transfer and posting of PSP officers was notified on 22-7-2000 known as the Rotation Policy for DMG/PSP officers. The basic concept of the Rotation Policy was that officers least rotated should be transferred first. In August, 2012, the Policy was amended such that it set out five categories laying down the criteria for all current and future postings of PSP Officers to the Province of Balochistan, in terms of priority. The categories essentially were created to ensure that the respondent No,1 could effectively transfer PSP Officers to Balochistan in a transparent manner which would prevent resistance from the PSP Officers. Furthermore, admittedly it was set out in compliance with the order of the Hon'ble Supreme Court in the Missing Persons Case. The Amended Policy is explicit and defines clear categories which should be followed for the purposes of transfer to Balochistan. The Amended Policy structures and controls the discretion of the respondent No,
1. It sets out the criteria to be followed in order to reduce the resistance and to encourage compliance with the transfer orders. In this regard I am of the opinion that where a particular mode is laid down for doing an act and there is no impediment in adopting the procedure laid down, a deviation from that procedure amounts to being unreasonable and can be labelled as being arbitrary. Therefore when the respondent No,1 sets out clear guidelines for transfer and posting of PSP officers to Balochistan, then they must follow the same. If they want to deviate from the Amended Policy then they must provide cogent and justifiable reasons. In the case cited at PLD 1990 SC 1092 ibid, the Honorable Supreme Court specified the seven principles of transparency or good governance:---- "Wherever wide worded powers conferring discretion exist, there remains always the need to structure the discretion. The structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure.
Somehow, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."
10. During the course of the proceedings the respondent No,1 was asked several times to provide the list of names of PSP Officers (BS-19) who have been transferred to Balochistan in terms of the categories of the Amended Policy. However the respondent No,1 could only name officers belonging to category 1 of the Amended Policy. Admittedly no exercise was done to formulate a list in terms of category 2, 3 and 4 provided for in the Amended Policy. Also the respondent No,1 had no plausible response to the list provided by the petitioners, of the officers who are available in terms of the Amended Policy. They did not deny the list yet they could not explain why officers who are available in terms of the Amended Policy have not been transferred. Finally the respondent No,1 was also asked to justify the transfer of the petitioners in terms of any special requirements that the respondent No,1 may have with reference to their skill set or training or work experience.
However again the respondent No,1 had no explanation whatsoever. To my mind, the Rotation Policy was amended to comply with the order of the Hon'ble Supreme Court. Once a decision was taken and the guidelines in the form of the Amended Policy were set out, any deviation or departure from the same would have to be explained and reasoned. In this case there is no explanation or justification for non-compliance with the Amended Policy. In this regard the respondent No,1 should be mindful of the Amended Policy it has formulated and should advance its aims and objectives. It should act in accordance with the Amended Policy as acting or deciding otherwise will be unfair and unreasonable. In a recent judgment in C.P. No,23 of 2012 and C.P. No,11 of 2012, Crl. Original Petitions Nos.23, 24 and 27 of 2012 in C.P. No,11 of 2012 and H.R.C. No,14427-P of 2012 (Application of Rai Manzoor Nasir) the Hon'ble Supreme Court held that:--- "We are fully conscious that the aforesaid matters relate to decision making and administration of the machinery of the State. As such the responsibility of deciding as to suitability of an appointment, posting or transfer falls primarily on the exclusive branch of the State which comprises of both the political executive and civil servants. Courts ordinarily will not interfere in the functioning of the executive as long as it adheres to the law and established norms and acts in furtherance of its fiduciary responsibility. However, while hearing this petition we have recognized the need for ensuring that decision making in relation to tenure, appointments, promotions and transfers remains rule based and is not susceptible to arbitrariness or absolute and unfettered discretion"
11. In view of the aforesaid, the petitions are allowed and the letters dated 7-9-2012, notifications of transfer dated 29-5-2009, memo. No,3(3)/2012-63 dated 11-7-2012 and dated 4-9-2012 with respect to the transfer and posting of the petitioners are set aside. There is no order as to cost.