Syed Nasir All Shah, Member.--This consolidated judgment will dispose of all the three appeals as identical question of law and facts are involved and the prayer made is also the same.
2. Siraj-ul-Islam appellant is working as Superintendent in Customs Intelligence and Investigation, Multan while both Tariq Mehmood and Hamid Habib appellants are working as Senior Intelligence Officers at Faisalabad. During the years 2013 & 2014 Siraj-ul-Islam appellant was transferred in the following fashion:- i.1st transfer04.02.2013Islamabad to Lahore ii. 2nd transfer08.02.2013 after 4-daysfrom Lahore to Gujranwala iii. 3rd transfer12.07.2013 after 5-monthsfrom Gujranwala to Islamabad iv. 4th transfer14.10.2013 after 3-monthsfrom Islamabad to Faisalabad v. 5th transfer07.03.2014 after 5-monthsfrom Faisalabad to Multan vi. 6th transferImpugned 27.032014 after 20-daysfrom Multan to Headquarters Islamabad Tariq Mehmood appellant was also transferred during the years 2012, 2013 & 2014, in the following fashion:-- i.1st transfer15.03.2012Sadiqabad to Gujranwala ii.2nd transfer06.09.2012from Gujranwala to Lahore iii.3rd transfer14.11.2012from Lahore to Multan iv. 4th transfer16.11.2012 from Multan to.Dera Ghazi Khan v. 5th transfer04.04.2013 from Dera Ghazi Khan to Faisalabad vi. 6th transfer26.04.2013 from Faisalabad to Islamabad vii. 7th transfer14.12.2013 from Faisalabad to Dera Ghazi Khan viii. 8th transferImpugned 27.03.2014from Dera Ghazi Khan to Islamabad Similarly, Hmid Habib appellant was transferred in the following fashion:-- i. 1st transfer10.07.2012 Sadiqabad to Dera Ghazi Khan ii. 2nd transfer04.03.2013 Dera Ghazi Khan to Faisalabad iii.3rd transfer26.04.2013Faisalabad to Islamabad iv. 4th transfer14.10.2013 Faisalabad to Multan Range then to Sadiqabad v. 5th transfer27.03.2013 Multan Range and posted at Sadiqabad to Islamabad Aggrieved by this the appellants brought the aforesaid appeals by inter alia maintaining that they have been made rolling stone and shuttle cock for no fault of their own which is adversely impacting their lives and education of their children. They also groused that their frequent and thoughtless transfers are violative of transfer policy and the law laid down by the Hon'ble Supreme Court of Pakistan in Anita Turab's case reported as PLD 1995 S.0 530. The appellants thus prayed for setting aside of the impugned orders whereby they have been transferred to the Headquarters Islamabad.
3. The appeals have been resisted by the respondents by maintaining that the appellants are persons of perforated credentials and no one was willing to take them which necessitated their frequent transfers. It was pointed out that the appellants never agitated their transfers in the field which are lucrative postings but have agitated the matter when they have been transferred to the Headquarters. It has been explained that due to the exigency of the service the transfers of the appellants were made.
4. We have heard the learned counsel for the parties and gone through the available record with their assistance.
5. We first advert to the cases of Tariq Mehmood and Hamid Habib appellants. In these appeals admittedly no departmental representations were filed by the appellants before . Filing appeals before this Trib.Unal. To surmount it learned counsel for the appellants has sought support from the dictum laid down in Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others [2002 PLC (C.S.) 1083].. In the precedent case the employees of PIAC had filed civil suits against the termination of their services. An objection was raised that before filing departmental representation under Section 4 of the Service Tribunals Act, 1973 the aforesaid suits were incompetent. It was held that PIAC was a corporation and there were no statutory rules governing the filing of departmental representations and as such filing of civil suits without exhausting departmental remedies were competent. But such a situation is not obtainable in the cases in hand. FBR is not a corporation. Rather it is a part of Federal Government.
There are statutory rules in place governing the filing of departmental representation before filing appeals before this Tribunal. As such dictum of the precedent case cannot be siphoned into these cases. The Iprovision of Section 4 ibid which provides for filing of departmental representation before filing of appeal before this Tribunal is Amandatory and as such its compliance cannot be shelved or wished away. On these scores these appeals are incompetent.
6. This brings us to the case of Siraj-ul-Islam appellant Mr. Muhammad Akrarn Nizami, Advocate learned counsel for the appellant has referred to the frequent and unusual transfers of the appellant during the past few years to show the mala fide of the respondents. Learned counsel has made pointed reference to the transfer which was made just four days of the earlier transfer.
Learned counsel has pointedly referred to a transfer order wherein it was mentioned that the appellant "will not be entitled to TA/DA." Learned counsel has thus maintained that the appellant has been made a rolling stone. Learned counsel has also referred to a statement showing that the performance of the appellant in curbing smuggling was upto the mark. Learned counsel has thus contended that frequent transfers have debilitating and disquieting effect on the appellant as well as his family as education of his children has suffered enormously.
Learned counsel has referred to the law laid down by the Honble Supreme Court of Pakistan in Anita Turab's case and Transfer Policy to contend that the guidelines provided in the said dictum and the Transfer Policy have been profusely violated.
7. As against this Mr. Tahir Zia Mahar, Advocate, learned counsel for FBR has referred to Section 10 of the Civil Servants Act, 1973 to contend that civil servant is obliged to serve any wherein in the country and no grievance should be made out it. Learned counsel has urged that the respondent- Department which is dealing with the menace of smuggling has to reposition, its employees occasionally which resulted in the transfers of the appellant.' Learned counsel has taken pain to point out, with the help of documentary evidence, that the appellant being an employee of unenviable profile had rendered himself a bete noire and thus was not acceptable in any department which prompted the respondents to order his frequent transfers. Learned counsel has cogently argued that the ' appellant has an insatiable appetite for field posting having lucrative connotations and for this reason he is agitating his dry and dreary posting in the head office at Islamabad. Learned counsel has referred to a galaxy of case-law to buttress his submissions and to urge that it is the prerogative of the employer to make posting and transfers of the employees serving under him.
8. We have considered the submissions of the learned counsel for the parties. Within the scheme and contemplation of Section 10 of the Civil Servants Act; 1973 a civil servant is liable to serve anywhere in the country without any demur. At times exigencies of service too demand premature posting and transfers of civil servants. As aptly pointed out by the learned counsel for the respondents Anti-smuggling Department requires frequent repositioning of its employees to achieve optimum results which in turn necessitates transfers.
9. But at the same time to check arbitrary, mala fide and unbridled exercise of such powers Transfer Policy has been prepared which provides useful guidance in the matter of posting and transfers of civil servants. The Hon'ble Supreme. Court of Pakistan in Anita Turab's case has deprecated frequent transfers of civil servants in colourable exercise of powers.
10. This being so the impugned transfers of the appellant have to be examined and attended to in its true perspective and holistically. As noted supra during the last 2 years the appellant was transferred on 6 occasions. This appears unprecedented. One transfer is shown to have been effected just 4 clays of the earlier transfer. This is simply arbitrary, queer, weird, enigmatic if not interrogative. And in one transfer order it was mentioned that the appellant will not be entitled to claim TA/DA. We wonder under what provisions of law/rules such a fiat could be issued. It thus appears that the respondents were in a huff and punishing mood.
11. But other side of the coin is too relevant. Of all the frequent and unusual transfers which the appellant has so far suffered he has chosen to assail and impugn the transfer whereby he has been denied field posting and this gives credence to the contention of the respondents that the appellant is more interested in field postings. Besides travails and predicaments of the appellant are partially also of his own making. As amplified by the learned counsel for the respondents the appellant on transfer was not acceptable to his new bosses which occasioned his frequent transfers.
12. For the foregoing reasons we dismiss the appeals filed by Tariq Mehmood and Hamid Habib appellants being incompetent. We dispose of Appeal No. 32(L)CS/2015 of Siraj-ul-lslam appellant by directing the respondents to adhere to the Transfer Policy and guidelines provided by the Hon'ble Supreme Court of Pakistan in. Anita Turab's case. The respondents must bear in their mind that jurisdiction of an employer qua his employee is parental as well. As such it is imperative for the respondents to be caring, thoughtful, circumspect, compassionate, considerate, rational and positive in their approach while making postings and transfers and be cognizant and sensitive to the hardships which it entail. There is no gain saying that a transfer is a drain on the exchequer and by indulging in frequent D transfers the respondents are squandering away government exchequer which runs counter to their cherished object of augmenting government revenue. No order as to costs. Parties be informed.
13. In the end we may observe en passant that at one point of time during the pendency of these appeals an injunctive order was passed by this Tribunal concerning the impugned transfers. But the respondents adopted the plea that prior to the issuance of the injunctive order the appellants were relieved of their duties from the place of their postings. We are not called upon to resolve this factual controversy. But there was an outcry by the appellants that they were not allowed to join at their new place of posting and they are apprehending disciplinary action on this score. As the matter was subjudice before this Tribunal so we direct that no punitive action will be taken against the appellants on this score.