' MUHAMMAD IBRAHIM SUMALANI (MEMBER-I).--- The appellant along with his counsel are present and stated that initially he was transferred and posted as Agricultural Engineer, B-18 at Panjgoor vide order dated 24-4-2013, but soon after seven (7) months he was again transferred and posted as Agricultural Engineer BS-18 (P&S) Directorate General Quetta against the existing vacancy vide order dated 23-1-2014.
2. Being aggrieved by the said order, the appellant has filed the instant appeal.
3: The counsel for the appellant contended that actually such immature transfer/posting has been made on the direction of the Minister concerned, which is not acceptable in the eye of law and it is contrary to the provision of transfer/posting policy laid down by the Balochistan Government as well as per decision of the Hon'ble Supreme Court of Pakistan in C.P.No,23 of 2012 Suo-motu. Case No,3/2012, wherein it was emphasized that the tenure period of posting of a government servant should be adhered in letter and spirit. The important points and guidelines of the judgment were summarized and conveyed to the all concerned by the worthy Chief Secretary, Balochistan vide number dated 13-12-2012. The relevant portion of the same is reproduced below: ' Appointments and Removals of Civil Servants: ' The statutory provisions or rules or regulations which govern the matter of appointments of civil servants, the same must be followed honestly and scrupulously. Where there are no explicit rules governing the appointment process, and appointments are to be made in the exercise of discretionary powers, such discretion must, be employed in structured and reasonable mannered and in public interest.
(a) Promotions: ' Consideration of an officer for promotion is to be based not only on the relevant law and the rules but also to be based on some tangible material related to merit and eligibility. In exceptional cases where rules are silent, discretion in matters of promotion must be exercised fairly and in a transparent manner. Discretion has to be understood within the four" corners of the concept of rule of law.
(b) Transfers and tenures: ' The normal period of posting of a Government Servant at a station is three (3) years which has to be followed in the ordinary circumstances, unless for reasons or exigencies of service a transfer before expiry of the said period becomes necessary in the opinion of the competent authority.
Furthermore, transfers of civil servants by political figures which are capricious and based on considerations not in public interest are not legally sustainable.
(d) Obeying illegal orders from Superiors: ' The duty of public officers is to independently discharge their functions and not to be influenced by "dictatorial misuse of powers" at the ends of political figures. The appointment and removal of civil servants is not to be politically motivated. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. In case, the subordinates are directed to implement an illegal order they should put on record their dissenting note. Moreover, the compliance of illegal orders of superiors is not justified on the basis of having been issued from higher authority as it is the law and Constitution which must be obeyed. Similarly illegal orders cannot be defended on the plea that these could expose the concerned Government servant to the risk of disciplinary action.
(e) Posting Civil Servant as Officers on Special Duty (OSD): ' Officer should not be posted as OSD Except for compelling reasons, which must be recorded in writing and are judicially reviewable. If at all an Officer is to be posted as. OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest.
' He further argued that there was no complaint against the appellant and even the transferring authority has also not recorded reasons while making pre-mature transfer/posting, therefore, the impugned notification dated 23-1-2014 is illegal void, and violation of the law and rules, liable to be dismissed.
4. Mr. Muhammad Saleem Baloch, A.A.-G. Argued and stated that under section 4 of Balochistan Service Tribunal Act no appeal is provided until and unless the departmental appeal is filed and a period of 90 days has lapsed, but in the instant case the appellant has not availed the departmental remedy, therefore, the instant appeal is not maintainable. He also contended that under section 10 of Balochistan Civil Servants Act, 1974, a civil servant is liable to serve anywhere inside or outside the Province and no person can claim to remain at a particular post rather it is a prerogative of the Government to make transfer and postings.
5. He pointed out that the appellant was posted as Agricultural Engineer Panjgoor on acting charge basis vide notification dated 1-12-2013, however, on his promotion in BS-18 he has been posted as Agriculture Engineer (B-18) (P&S), Directorate General Quetta against the existing vacancy vide order dated 23-1-2014, therefore, the claim of the appellant is not maintainable.
6. The parties heard and record perused deeply. It has been found I B that the appellant was posted as Agricultural Engineer (B-18) Panjgoor on acting charge basis for a short period on stop gap arrangement vide Notification dated 24-4-2013, however, afterwards on his promotion in (BS- 18) he has been posted as Agricultural Engineer (BS-18) (P&S), Directorate General Quetta against the existing vacancy, therefore, the claim of appellant is not maintainable, because he has since been posted against the post of BS-18 in accordance with his status.