' MUHAMMAD IBRAHIM SUMALANI (MEMBER-I).--- This appeal has been filed under section 4 of the Balochistan Service Tribunals Act 1974, against the impugned notification dated 8-1-2014, wherein the appellant has been transferred and directed to report to Board of Revenue, Balochistan, Quetta.
2. The gist of the case is that the appellant was posted as Tehsildar, City Tehsil, Quetta vide notification dated 1-8-2013, but almost within a period of five months, he has was transferred and directed to report to Board of Revenue, Balochistan Quetta vide impugned notification dated 8-1- 2014 and one Mr. Muhammad Ali Kakar has been posted in his place, therefore, being aggrieved with the order of transfer within a period of five months, the appellant has filed this appeal.
3. Learned counsel for appellant Mr.Nadir Ali Chilgari appeared and stated that the impugned order is not only contrary to the law, but also against the fundamental rights of the appellant, because the appellant has been declared as OSD by the respondent No,1 (Secretary Board of Revenue) through notification dated 1-8-2013 and posted the Tehsildar City Tehsil Quetta. He submitted that within almost five months, the appellant has been transferred and directed to report to Board of Revenue Quetta and the respondent No,2 (Mr.Ali Ahmed) get posted in his place, therefore such immature arrangement is void and violation of the government policy. The learned counsel further contended that the private respondent remained posted since 13-12-2001 to 21-6-2006 as Naib Tehsildar Saddar Quetta, from, 29-9-2008 to 29-7-2009, as Tehsildar Quetta, from 29-12-2009 to 29-9-2010 as Sub-Registrar Quetta and from 19-7-2010 to 21-8-2013 as Tehsildar City Quetta respectively, therefore, according to learned counsel further retention of the private respondent as Tehsildar City Council Quetta would injust and violation of the Government Policy. He prayed that the impugned notification dated 8-1-2014 may be set aside and the appellant be allowed to continue as Tehsildar Tehsil Saddar Quetta.
4. The respondents were asked to file comments, which have been filed by them accordingly. In the comments it has been stated that transfer posting is a prerogative of the Government and this power cannot be circumstanced according to whims of any group of the employees.
5. Learned Assistant Advocate General (Mr.Shai Haq Baloch) argued that under section 4 of the Balochistan Civil Servants Act, 1974, it is discretion of the Government to transfer any civil servant anywhere in the public interest, therefore, the appeal is not maintainable and liable to be dismissed.
6. The Private respondent in his comments has pointed out that without filing of Departmental Appeal/Representation remedy of the Service Tribunal cannot be availed and also failed to implead the necessary parties as the post in question falls within the domain of City District Government, Quetta, therefore, prayed for dismissal of the appeal. It has also been mentioned in the comments that many complaints have been received against the appellant for non seriousness, and further the transfer/posting does not come in the ambit of section 4 of the Balochistan Civil Servants Act, 1974, therefore, the appeal is liable to be dismissed and the private respondent may be allowed to continue as Tehsildar City Tehsil. Quetta.
7. In view of the law having regard to the facts of the instant case I am concisions of the fact that normally a civil servant shall be transferred from one to another place to complete his prescribed period of tenure and is generally permitted to complete his normal tenure, but it is equally true that transfer and posting of a civil servant is the jurisdiction of Administration and no one has a right for his posting to a particular post or station. Posting of civil servant at a particular place is the prerogative of the competent authority and transfer of an official is part and parcel of the conditions of his service.
8. There is no doubt that positing and transfer cannot be challenged unless it is against the law and rules or mala fide. Transfer order if mala fide and made for the extraneous consideration to accommodate some blue eyed chips then matter would equally for within the jurisdictional domain of the Service Tribunal. The appellant has been transferred within a period of five (5) months and directed to report to Board of Revenue, Quetta.
9., Admittedly, civil servant cannot raise any legal objection to his transfer, being a civil servant and is liable to be transferred from one placed to another to any post subject. Of course that the term and condition of his service are not varied to his disadvantage.
10. It is to added that this Tribunal have held in Service Appeal 100/2009 title as Dr.Fakhira Jaffar v.'
Government of Balochistan dated 31-3-2010, that on posting/transfer cases direct appeal before the Tribunal is competent, because if the appellant goes through lengthy procedure of departmental appeal, that would take time and the purpose of filing of appeal would fail. Therefore, the objection to this regard is repealed. So far as complaint's against the appellant is concerned, the respondent No,1 is competent under the Balochistan E&D Rules, 2012 to proceed against the appellant, if deems fit, but mere immature transfer does not serve the purpose. And even the appellant has not been posted which tantamount, the officer has been declared as Officer on Special Duty (OSD), that it is a violation of the judgment passed the Hon'ble Supreme Court PLD 2013 (SC) P-195 titled Syed Mehmood Akhtar Naqvi v. Federation of Pakistan and others, wherein it was held that who act according to law at times have to face hardship in the dorm of immediate transfer or posting as Officer on Special Duty (OSD) even before the completion of the tenure. It is important to add here that in the light of the judgment of the Hon'ble Supreme Court of Pakistan in C.P.No,23 of 2012 out of Suo-Motu case No,23 of 2012 dated 12-11-2012, the worthy Chief Secretary, summarized the important points and guidelines of the judgment and conveyed to all concerned as under for compliance:
(a) 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.
(b) 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.
(c) 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 the 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.
11. The appeal is therefore accepted and the impugned Notification No,136-A.1 dated 8-1-2014 is set aside.
12. There shall be no order as to costs.
13. File after completion be consigned to record.