' KHALID MAHMOOD RAMAY, MEMBER-V.--- Brief facts involved in the institution of the instant appeal as quoted are that vide impugned order No,06/E2 dated 19.01.2012 Chief Engineer (North Zone), Punjab Highway Department transferred respondent No,4 from his office and posted in the office of the Executive Engineer Provincial Machinery Maintenance Lahore against a vacant post. The appellant was initially recruited as Tracer on 12.12.1988 in the office of the Superintending Engineer Provincial Highway Circle, Lahore and promoted as Draftsman on 24.11.2004. The appellant belongs to the permanent cadre of the Superintending Engineer Provincial Highway Circle Lahore normally known as Circle Cadre and maintains his independent cadre and having no concern with the cadre of any other office, vide seniority list of the Drawing Establishment issued on 13.12.2012 vide letter No,282-85/A dated 16.02.2012 where he stands at Sr. No:9.
2. Respondent No,4/ Mr. Jawad Ahmed initially recruited as Tracer in the office of Chief Engineer (North Zone) Punjab Highway Department Lahore on 11.06.1984, promoted as Draftsman on 04.03.1990 and subsequently promoted as Head Draftsman on 05.04.2011 in the office of respondent No,2 has been transferred to the office of the Executive Engineer Provincial Machinery Maintenance Division Lahore under the jurisdiction of the Superintending Engineer Provincial Highway Circle Lahore (respondent No,3) vide the impugned order, which has been challenged in the instant appeal. The appellant has contended that respondent No,4 who permanently belongs to the cadre of the Office of Chief Engineer (North Zone) Punjab Highway Department Lahore and maintains his seniority in all intents and purposes in the said Chief Engineer's Office, has no concern with the Circle Cadre. It has been mentioned in the appeal that the seniority list of Drawing Establishment of the office of the Chief Engineer (North Zone) Punjab Highway Department and that of the Drawing Establishment of the office of Superintending Engineer Provincial Highway Circle are quite separate and independent maintaining individual cadre regarding both the above mentioned offices, and the incumbents thereupon, are not transferable from one cadre to other cadre.
3. It is alleged that the impugned order has been issued in violation of the instructions/policy with regard to the posting and transfers issued vide letter No,S0E-III (C&W)1-7/97/254 dated 26.01.2001. It has been further agitated that the transfer of respondent No,4 and his consequential induction in the cadre of the Provincial Highway Circle Lahore has adversely effected the seniority position of the Drawing Establishment working in the Circle Office and that their promotion as Head Draftsman has been blocked by way of his transfer made illegally. The appellant submitted a representation/ departmental appeal to respondent No,1 i.e, Secretary C&W 'Department, Govt. Of the Punjab on 15.05.2012 which has not been decided inspite of lapse of the period stipulated in law nor any decision has been communicated to the appellant. Hence the instant appeal.
4. Process was issued and the respondents were directed to submit their comments. Afterwards arguments were heard at length as well as the record produced by the department was perused.
5. Learned counsel for the appellant argued that the impugned order is illegal, unlawful and void ab initio being issued in sheer violation of posting and transfer policy of 2001 in which 04 tiers of the department have been maintained as separate entities and for each tier parameters with regard to promotion and postings/transfers of the officials have been provided distinctly. He argued that in the tier of Chief Engineer, at Sr. No,7, the category of post as Head Draftsman has been mentioned to be filled with 100% by promotion from Draftsman and posted within the Chief Engineer Office or within Zone. He added that in the second tier as Circle Office, at Sr. No,8, the category of post of Head Draftsman has also been mentioned to be filled with 100% by promotion from Draftsman to be posted within Circle or outside the District. He further contended that although a transfer could be made out of circle in the public interest but respondent No,4 has been transferred at his own request which he made two times on 19.01.2012 and 08.02.2012 and which is diarized on record as No,22-A/E2 dated 19.01.2012 in the office of the Chief Engineer North Zone Punjab Highway Department. In the request made by Respondent No,4 no cogent reason has been mentioned. He carried on arguing that the Chief Engineer has not forwarded copy of the impugned order to the Secretary of the Provincial Department as required by the posting and transfer policy 2001. He further elaborated that the transfer can be made but on the basis of the promotion and that too in the same functional unit only. He further asserted that transfer of respondent No,4 has decreased the number of seats available for promotion which were required under law to be filled in by way of promotion from the Draftsmen of the same circle office. This act of the respondents has blocked the way of promotion of the Draftsmen already working in the Circle where respondent No,4 has been transferred.
6. He argued emphatically that the same seat should have been filled in by way of promotion as ordained in the posting transfer policy 2001. He pointed out that mala fide and misuse of the official authority has been carried out in these circumstances and the impugned order is liable to be set aside. He further prayed that respondent No,4 should be brought back to Chief Engineer's Office in the interest of justice and to save the service rights of the officials of the Circle Cadre in order to make room for promotion of the appellant as Head Draftsman.
7. Learned District Attorney rebutted contentions of the counsel for the appellant, that the transfer has been made as stop gap arrangement and because of the administrative reasons. The Departmental Representative/Law Officer, however could not produce any record maintaining administrative reasons for the impugned transfer order. The Law Officer although could not produce any seniority list regarding each distinct as mentioned tier in the transfer Policy 2001 however he conceded to the fact that separate 'seniority lists have been maintained in all 4 functional organs of the department. The fact that the transfer was made on the personal request of respondent No,4 was also not denied by the District Attorney as well as by the D.R.
8. I have given due consideration to the arguments raised by both the sides and have gone through the record as made available. It is noticeable that respondent No,3 has held in his comments that the appellant is an employee of Circle Cadre and has no concern with the Cadre of any other office. That simply means that the seniority and promotion both, have to be confined within the limits of a particular cadre. The comments establish that the seniority of Drawing Establishment of the office of Chief Engineer North Punjab Highway Department, Lahore is quite separate and independent vide para No,6 of his parawise reply and further that both the offices maintain their own cadre. Responding to para No,7 he has. Commented and indirectly conceded that due to posting of respondent No,4 against a vacant post of Head Draftsman in the circle office, promotion of the Draftsmen working in the circle has been effected.
9. It is transpired that the impugned order has been issued on the personal request of respondent No,4 made on 19.01.2012 and 08.02.2012. It is also noticed that no cogent reasons, personal or otherwise, have been narrated in both the personal requests made by respondent No,4.
10. Respondent No,1 while responding to para No,7 has maintained that seniority of Drawing Establishment of Provincial Highway Circle remains the same and will not affect the promotion of senior most Draftsman due to posting of respondent No,4 who will stand repatriated to his office as and when his regular incumbent will be promoted. The comment itself substantiates that by posting of respondent No,4 the chance of promotion of a senior most Draftsman has been blocked because in case of non-availability of a vacancy of Head Draftsman, the process of promotion of the Draftsmen for the said vacancy will be hampered, since the same vacancy would not be available for promotion.
11. In view of the above discussion this Tribunal is under obligation to coincide with the arguments of counsel for the appellant and hold the impugned order No,06-E2 dated 19.01.2012 to be void and unlawful and accordingly the appeal is accepted and the impugned order is set aside with the direction to the respondents to follow the Posting/Transfer Policy 2001 in letter and spirit.
Respondent No,4 shall stand transferred back to his original Cadre with immediate effect.