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 18.07.2013, with a prayer to set-aside the same.
2. Brief facts giving rise to this appeal are that appellant is serving as (PCS/B-19) Officer in the Province of Balochistan. On 21.03.2012, the appellant was posted as Additional Secretary Balochistan Levies Force Home Department Government of Balochistan. On 04.04.2013, he was transferred from the post of Additional Secretary Levies to the post of Director Provincial Disaster Management Authority (PDMA), while one officer of (BSS/B-18) namely Abdul Wali Kakar was posted as Additional Secretary Levies Home Department of Balochistan Quetta. On 18-07-2013, once again the appellant was transferred from the post of Director PDMA with direction to report to S&GAD. While Respondent No, 2 who is an officer of (BSS/B-18) was posted as Acting Director Planning PDMA. Thus, being aggrieved from the impugned Notification dated 18-07-2013, he filed this appeal before this Tribunal on 19-07-2013.
3. On notice, Respondent Nos, 1 and 2 have filed their replies/objections, wherein Respondent No, 1 stated that appellant has not filed any departmental appeal to the departmental authority as such, present appeal is not maintainable. He further stated that Respondent No, 2 has Master Degree in Disaster Management from Coventry University England and is suitable for the post in question. He stated that no appeal shall lie to a Tribunal against an order of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular or to be promoted post to a higher post or grade, while Respondent No, 2 stated that Disaster Management authority is not a Department of the Government of Balochistan. The said authority is a statutory body as such, this appeal is not maintainable. He further stated that the post of Director Balochistan Management Authority is not a tenure post as such the question of tenure is not applicable as the Respondent No, 2 has special knowledge in Disaster Management and his services have been got in public interest.
4. We have heard learned counsel for appellant, learned A.A.G. and learned counsel for Respondent No, 2, perused the record with their assistance, considered their respective contentions in the light of available record. So before going to other aspects of the matter it will be appropriate to address the question of jurisdiction. It is an admitted position that Disaster Management Authority is not a Department of Government of Balochistan. It is a statutory body and has its own law and rules. It is also an admitted fact that in this appeal any order/notification of the aforesaid authority has not been challenged before us. The impugned notification dated 15-07-2013 which has been issued by S&GAD Department Government of Balochistan. The Notification of S&GAD Department can be challenged before this Tribunal so this Tribunal has got jurisdiction for all intends and purposes. So far as the second objection of respondents is concerned that no departmental appeal has been filed by the appellant against the impugned Notification dated 18-07-2013, suffice it to say that posting transfer are of urgent nature, as such no appeal is required under Section 4 of Service Tribunal Act, 1974.
5. The appellant had been posted as Additional Secretary Levies Force Home Department Government of Balochistan on 21-03-2012 from the post of OSD but on 04-04-2013, he was transferred from the post of Additional Secretary Levies Home Department to the post of Director PDMA. It not only shows that appellant has been transferred within a period of less than thirteen
(13) months without plausible reasons or justification but an officer of B-18 namely Abdul Wali Kakar had been posted as Additional Secretary Levies Home Department. It has not been showed by Respondent No, 1 as to whether any officer of B19 was not available if not then Mr.Abdul Wali Kakar was at the promotion Zone to B-19 or otherwise. Once again on 18-07-2013, the appellant was transferred from the post of Director Planning PDMA with direction to report to S&GAD. Here too the appellant has been transferred within a period of less then four (4) months without reasons or justification acceptable to even a man of common prudence. It is also to be noted that here too, a person of B-18 has been posted on Acting Charge. The Respondent No, 1 once again failed to explain as to whether there was no person of B-19 available if not as to whether Respondent No, 2 was in the promotion zone to (B-19) or otherwise. Thus, from taking into consideration we are of the confirm view that appellant has been made a rolling stone without any sort of justification and this approach of authorities are causing chaos and unprecedented consequences, which are infact vital for destroying the basic fabrics of the already weak structure of civil service which will certainly affect the long run interests of civil service and will certainly affect long run benefits of civil society. This kind of approach have already brought negative result not only in the Government Departments but diminished and shook the confidence of general public in Government Departments. We are quoting the relevant part of the Judgment of Hon'able Supreme Court of Pakistan reported in PLD 2013 (SC) Page 195 titled Syed Mehmood Akhtar Naqvi Vs. Federation of Pakistan and others. Wherein at page 203 it has been held that "Although civil servant did have a duty to follow the policy guidelines and directions of the political executive yet because of Article 5 of the Constitution, therefore most duty was "obedience to the constitution and law" not unthinking obedience to all directives (write 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 servant in their capacity as advisors in decision making or as administrators and enforcers of law were not subservient to the political executive. Civil servant were under an obligation to remain compliant with the constitution and law, hence they were not obliged to be servile or unthinkably submissive to the political executive. Civil servant give advise in the best public interest and were to administrator the law impartially being incharge of the machinery of state. Thus, while taking into consideration the above guidance for civil servants i,e, competent authorities in line with the facts in this appeal we come to the conclusion that civil servant i,e, competent authority in Balochistan are blindly following the directives of political executives without any lawful principle, logic or rational consequently they are grossly violating the principles enunciated in the above mentioned case law, which are in fact painful for all those sensible persons of civil society especially subordinate civil servants.
6. Thus while keeping into consideration the above mentioned facts and circumstances we allow this appeal and set-aside impugned notification dated 18-07-2013 being arbitrary not transparent, capricious and is based on consideration not in public interest as such is not legally sustainable.
With no order as to costs. File after completion be consigned to record. Sd/- Nasrullah Khan Achakzai Chairman ADDITIONAL NOTE.
As far as point of jurisdiction raised by the learned counsel for Respondent No, 2 is concern, while agreeing with the view enumerated by he learned Chairman at Para-4 of this Judgment relating to the jurisdiction of this Tribunal in the matter I felt necessary to add here the it is specifically provided at Rule 10 of the Balochistan Disaster Manaagement Authority Rules, 2012 "under the heading "Authority for appointment(s)" the authority for making appointments against the posts in B-19 and B-20 in the Balochistan Disaster Management Authority Service is "Government" and the word 'Government' is defined at sub-rule E of Rule 2 as "Government" means, the Government of Balochistan" hence in view of this legal position also, this Tribunal have jurisdiction to intervene in the matter.