Nasrullah Khan Achakzai, Chairman.--The appellant has filed this service appeal under Section 4 of the Balochistan Service Tribunals Act, 1974, against the impugned notification dated 22-07-2013, with a prayer to set-aside the same.
2 Brief facts giving rise to this appeal are that the appellant joined civil service as Tehsildar in the year 1990. After gradual promotions he is now in B-19 and is a senior officer in the same grade.
During service he was not allowed to remain on a post for a normal period. On 15-08-2012, he was transferred from the post of Additional. Secretary Health Government of Balochistan to the post of Deputy Commissioner District Harnai. On 04-04-2013, the appellant was transferred from the post of Deputy Commissioner Harnai to the post of Additional Commissioner Zhob Division but in the meanwhile, the said notification was cancelled and on 12-04-2013 and the appellant was transferred from the post of Additional Commissioner Zhob to the post of Deputy Commissioner District Chagai. On 22-07-2013, the appellant was directed to report to Services & General Administration Department Government of Balochistan, while the private Respondent No, 2 who is a junior officer of B-18 was posted as Deputy Commissioner District Chagai. Thus, being aggrieved from the impugned notification dated 22.07.2013, the appellant has preferred this appeal before this Tribunal on 06-08-2013.
3. On notice, the Respondent No, 1 has filed objections, while private Respondent No, 2 had relied on the objections filed by official Respondent No,
1. The -Respondent No, 1 in his objections stated that the competent authority has also discussed the suitability and selection of officers for such posting with the elected representative of the area owing to various factors. The Government servant has to serve any where as desired by Government. The officer is not to be posted on the post of his choice. The appellant was posted as Additional Commissioner Zhob Division on 04-04-2013. He was not interested in his new posting rather was engaged in using political pressure for his posting as Deputy Commissioner in any District of the province during the period of interim Government and lastly he had succeeded in getting the post of Deputy Commissioner Chagai. After General'
Elections the elected representative of the Chagai District had requested for the posting of a competent officer as Deputy Commissioner to resolve the issues of the poor masses. On receipt of the complaint the appellant was transferred from the said post and Respondent No, 2 being an officer of B-18 was posted on the same post. The Respondent No, 1 further stated that the post of Deputy Commissioner Chagai is of B-19, while the Respondent No, 2 is of B-18. He was posted on acting charge basis and his transfer as well as the posting of Respondent No, 2 is legal and according to rules.
4. We have heard learned counsel for appellant and learned Additional Advocate General for respondents, perused the record with their assistance, considered their respective contentions in the light of available record, facts and circumstances relevant for deciding the matter in question.
It is an admitted position that the post of Deputy Commissioner is a tenure post as contemplated by the Rules of Business 1976, wherein the normal period of a tenure post is three (3) years, while record shows contrary to the above legal position. The appellant was transferred from the post of Additional Secretary Health to the post of Deputy Commissioner Harnai on 15-08-2012 but on 04- 04-2013 he was transferred from the post of Deputy Commissioner Harani to the post of Additional Commissioner Zhob. It means that appellant has faced transfers within a period of eight (8) months. On 12-04-2013, the appellant was again transferred from the post of Additional Commissioner Zhob Division to the post of Deputy Commissioner Chagai. The appellant has again been transferred within a period of eight (8) days only. In consequence of transfer dated 12-04- 2013, the appellant had assumed the charge as Deputy Commissioner Chagai on 16-04-2012. On 22-07-2013, the appellant was again transferred from the post of Deputy Commissioner Chagai with the direction to report to S&GAD Department Government of Balochistan. It means that appellant has been left on the post of Deputy Commissioner Chagai only for a period of three (3) months and ten (10) days. The reasons shown for the last transfer notification dated 22-07-2013 is the complaint of the elected representative of the area but no date and detail of the complaint and copy has been attached with the reply of respondent. As such, it can be termed as a futile pretext and nothing else. The Respondent No, 1 has stated that the competent authority had also discussed the suitability and selection of officer for such posting with the elected representative of the area. This contention of respondent is not supported by law and rules. According to our considered view the Respondent No, 1 did not cite any law and rules which contemplates that suitability and fitness for posting be shared with elected representative of the area in question. It is infact not the prerogative of any member of Provincial Assembly including Provincial Minister, Member of National Assembly as well as Senators of the Province of Balochistan that any officer or civil servant be posted according to their sweet will. The competent authority shall be careful in future as this approach of competent authority is illegal, ,unconstitutional and putting in danger the fundamental rights of those who have not casted their votes in favour of elected representatives of the respective area. This approach of the authorities is destroying the check and balance system in the respective area which is indeed not healthful for a democratic society. As such, we are of the considered view that appellant has faced premature transfers which are totally against the principles enunciated by Hon'able Supreme Court of Pakistan in case titled Syed Muhammad Akhter Naqvi Vs. Federation of Pakistan and others reported in PLD (SC) Page 195, wherein it has been held at Page 203 that civil servant duties of although a civil servant did have a duty to follow the policy guide lines and directions of political executive yet, because of Article 5 of the constitution, therefore foremost duty was "obedience to constitution and law" not unthinking obedience to all directives (right or wrong) issued from political executive. Civil servants were public servants and were, therefore, meant to take decisions only in accordance with law in public interest. Civil servants in their capacity as advisors in decision making or as administrators and enforcers of law, were not sub servant to the political executive. Civil servants were under an obligation to remain complaint with the constitution and law, hence they were not obliged to be servile or unthinkingly submissive to the political executive. Civil servant to give advice in the best public interest and were to administer the law impartially being incharge of the machinery of the state. The competent authority has not only transferred the appellant frequently without plausible compelling reasons but also posted an officer of B-18 on the post of B-19 without any explanation that officer of B-19 of the same cadre were not available, if not available then Respondent No, 2 was in the promotion zone to B-19 or otherwise. Even in the impugned notification dated. 22-07- 2013 the word Acting has not been used by Respondent No, 1 but the replying Respondent No, 1 stated in his reply that Respondent No, 2 has been posted as Acting Deputy Commissioner. This contrast has not been explained in a plausible manner. As such, while taking into consideration the above mentioned reasons we allow this appeal and set-aside the impugned transfer notification dated 22-07-2013 of appellant by political figures which is capricious and is in fact based on consideration not in public interest and is not legally sustainable under the law. With no order as to costs. File after completion be consigned to record.