SAJJAD ALI SHAH, J.---Through C.M.A. No, 538-K of 2017, petitioner Tariq Iqbal seeks to withdraw the power of attorney and to argue the matter in person. For the reasons stated in the application, the same is allowed subject to all just exceptions.
2. The petitioners, who are employees of Ministry of Defence (ML&C Department) Government of Pakistan, in BS-7 to BS-10 posted at different Cantonment Boards, seek leave of this Court against a common order of the Sindh High Court whereby their plea, that the posts held by them were non- transferable, stood rejected.
3. Briefly, i) Petitioner Tariq Iqbal Lower Division Clerk (BS-7) was transferred on 31.10.2014 from Cantonment Board Clifton to Cantonment Board Pano Aqil, ii) Petitioner Yousuf Mirza Assistant Revenue Superintendent (BS-10) was transferred on 22.10.2014 from Cantonment Board Faisal to Cantonment Board Sargodha, iii) Petitioner Muhammad Sajjad Sanitary Inspector (BS-10) was transferred on 7.11.2013 from Cantonment Board Korangi Creek to Cantonment Board D.I. Khan, AND iv) Petitioner Abdul Samad Assistant Revenue Superintendent (BS-10) was transferred on 8.12.2015 from Cantonment Board Faisal to Cantonment Board Murree Hills.
4. They questioned their transfers by invoking constitutional jurisdiction of the Sindh High Court by filing separate constitutional petitions asserting therein that the posts against which each of the petitioner is appointed was a non-transferable whereas, the respondents pleaded that under sub- Rule (i) of Rule 5 of the Pakistan Cantonment Servants Rules, 1954, (hereinafter referred to as Rules of 1954) the Director General of the Military Land was empowered to specify post having a common designation and analogous duties in the service of the Boards as transferable. The Court, after hearing the parties, through the impugned judgment rejected the petitioners' stand by holding that the posts held by them were transferable.
5. The only point agitated by Mr. M. Shafi Muhammadi, ASC for the petitioners is that since subsection 2(c) of section 280 of the Cantonments Act, 1924 (hereinafter referred to as Act of 1924) provides that the appointment, control, supervision [conditions of service, transfer], suspension, removal, dismissal and punishment of servants of [Boards] are to be made in accordance with subsection (1) of section 280 of Act, 1924 after previous publication and, therefore, change in rules of transfer by declaring non-transferable posts as transferable could not be legally upheld unless there is a previous publication and since the respondents admittedly have not published the change in the rules of transfers/postings, therefore, such transfers could not be upheld by this Court.
6. On the other hand, petitioner Tariq Iqbal, present in person, while referring to letter dated 9th October, 1989 has stated that a request of mutual transfer made by the employees of Cantonment Board Clifton was rejected on the ground that the posts are non-transferable which goes to prove that the posts held by them are non-transferable. He has further referred to letter dated 4th November, 2011 wherein it has been stated that transfer/postings of such officials has been declared ultra vires, ab initio the Peshawar high Court in W. P. No, 1281 of 2003 titled Purdil Shah v.
The Director General, Military Lands and Cantonments, Rawalpindi and others. He has further referred to the order of the Federal Service Tribunal whereby the posting/transfer according to him was declared unlawful and such order was sustained by this Court in C.Ps. Nos,988 to 1003 of 2010 titled Cantonment Board, Chaklala v. Muhammad Boota and others. He further while referring to Annexure-I and Annexure-III has asserted that the petitioners are members of local cadre in which transfer cannot be. made except under mutual arrangements. It was, therefore, prayed that the transfer of the petitioners be declared against the rules and consequently be set aside.
7. Learned ASC appearing for the respondents contended that the judgment of the Peshawar High Court, referred to by the petitioner Tariq Iqbal was set-aside by this Court in C.As. Nos, 349/2006, 991/2006 and 547 of 2008 titled Director General Military Lands and Cantonment Rawalpindi and others v. Purdil Shah and another. As to the judgment of the Service Tribunal, it is submitted that in the said judgment the stance of the employees was that their departmental appeals against posting/transfer were pending and consequently the Tribunal, while allowing the appeals, directed the respondents to decide their appeals. However, the question regarding the power of the Director General to declare a non-transferable post as transferable was never decided. It was next contended that rule 5(1) of Rules 1954 starts from non-obstante clause and empowers the Director General in very clear terms to specify the posts having a common designation and analogous duties in the service of Boards whose incumbents may in the public interest be transferred from one Cantonment to another which power was validly exercised by the Director General vide letter dated 3rd November, 1999 declaring that the employees of Cantonments Boards service in BS-5 and above who are presently in non-transferable categories are placed in the transferable categories and could be transferred throughout Pakistan. It was lastly contended that for exercising power under rule 5(1) of the Rules of 1954, no notification in terms of section 280(1) of the Act, 1924 is required. Per ASC such rules of service in accordance with clause (c) of subsection (2) of section 280 were made published and were duly notified on 1st day of March, 1954 empowering the Director General to declare a non-transferable post as transferable.
8. We have heard the contentions of respective parties and have minutely perused the record. It appears that section 280 of the Act 1924 empowers the Federal Government to make rules for carrying out the purposes and objects of the Cantonments Act and reads as under:- "280. Power to make rules.---(I) The Federal Government may, after previous publication, make rules to carry out the purposes and objects of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) .......................
(b) .....................................
(bb) ..................
(c) the appointment, control, supervision, conditions of service, transfer, suspension, removal, dismissal and punishment of servants of Boards; ............"
9. It appears that in exercise of the powers so conferred by clause (c) of subsection (2) of section 280 of Act, 1924, the Central Government in the year 1954 had made the rules of service for Cantonment servants known as "The Pakistan Cantonment Servants Rules, 1954". Perusal of Rules of 1954 reflect that it has 66 rules but none of the rules speak about the posting and transfer of Cantonment servants except rule 5 which confer powers on the Director General to specify posts having a common designation and analogous duties in the service of the Boards whose incumbent may in the public interest be transferred from one Cantonment to another under his orders. The said rule reads as under:- "5 (1) Notwithstanding anything contained in these rules or in the terms and conditions of service of any servant, the Director may at any time specify posts having a common designation and analogous duties in the service of Boards whose incumbents may in the public interest be transferred from one cantonment to another under his orders, and may divide the Cantonments into suitable groups for this purpose. The pay scale, fees and allowances payable to such incumbents out of the Cantonment Funds concerned shall be such as may be determined by the Director from time to time in respect of any or all the Cantonments; Provided that nothing in these rules shall have the effect of altering the existing terms and conditions of service of any servant (in so far as these terms and conditions relate to remuneration or age fixed for superannuation) to his disadvantage.
(2) The cadre, methods of recruitment, promotion and selection to transferable posts in service of Boards shall be determined by the [Director-Director]; Provided that any servant holding a post included in the transferable category shall be allowed to continue in his existing scale of pay.
(3) Vacancies in the posts in, transferable categories shall be filled by promotion, direct recruitment or transfer of cantonment servants from any other cantonment as considered suitable by the Director-General who may for such posts determine quota for promotion and direct recruitment: Provided that promotion, direct recruitment or transfer, as the case may be, against any post shall not be claimed by any cantonment servant or other person as a right.
(4) If cantonment servants of the requisite qualifications and experience are not available to fill the posts reserved for promotion under sub-rule (3), the Director General may fill such posts by direct recruitment.
(5) The conditions for grant of advances of travelling allowances and pay to transferable Cantonment servants on transfer and the manner of adjustment thereof shall be determined by orders made by the Director-General from time to time.
(6) A copy of the Annual Confidential Report in respect of a transferable Cantonment servant in the form prescribed by the Director-General under this rule shall be sent to the Director-General by the 31st March every year.
(7) The Director-General shall maintain a seniority list of all categories of transferable post."
10. Before examining the power conferred on the Director General in terms of the Rule reproduced above, we would like to examine Annexure-I and III which were heavily relied by the Petitioners in support of their claim that their posts are non-transferable. Annexure-I is a "service policy in respect of Pakistan Cantonment Servants", perusal whereof reflect that such policy has been issued by Director, Military Lands and Cantonment in consequent to a conference decisions of DDsML&C. The policy provides for (1) Composition and Cadre, (2) Pay Scale and Allowances, (3)
Transfers, (4) Appointing Authorities, (5) Selection and Promotion Central Selection Board, (6)
General, (7) Annual Confidential Reports, (8) Seniority List, (9) Centralization of Benevolent Fund and (10) Extension of Group Insurance to Cantt. Servants. There is no provision either in the Act of 1924 or the Rules of 1954 which empowers the DDsML&C for making such policy except Rule 5 of the Rules of 1954 and therefore, was issued by Director, Military Lands and Cantonments. Perusal of the relevant clause of the policy for the purposes of resolving the controversy in hand reflects that it divides the Cantonment services into three cadres viz: (1) Central Cadres, (2) Regional Cadres and
(3) Local Cadre. The Petitioners have contended before us that they fall under Local Cadre and the service policy provides that "Member of Local Cadre shall not be transferable except under mutual arrangement". However, the Local Cadre defined in the policy does not encompass the Petitioners as the Local Cadre has been detailed as "All Members of Teaching staff in colleges/schools run by the Cantonment Board". Even if we accept that the post held by the Petitioners also fall under Local Cadre still it is the Director, Military Land and Cantonments who has made such policy of course while exercising power under Rule 5(1) of Rules 1954 and has been modifying such policy from time to time by issuing simple directions.
11. Coming to Annexure-III, again it has been issued by the Director General of Military Land in exercise of power conferred on him under Rule 5(1) of the Rules, 1954 and in supersession of all previous orders on the subject obviously including Annexure-I and redefines Central Cadres and Regional Cadres, the incumbents whereof were placed under transferable categories. The preamble of Annexure-III for the sake of easy understanding and convenience is reproduced hereinbelow:- "ANNEXURE-III (See Rule (5))
TRANSFERABLE CATEGORIES Constitution of Transferable Categories of Cantonment Servants. In pursuance of rule 5(1) of the Pakistan Cantonment Servants Rules, 1954 and Service Policy issued vide this dated letter No,89/ 37/ G/ AD/ (B)/ ML&C/70 dated 15th July, 1972 and in suppersession of all previous orders on the subject, the following posts are specified to be in the transferable categories, whose incumbents will, in the public interest, be transferred from one Cantonment to another:-
(I) Central Cadre.
(a)(i) ...........................
(ii) ...........................
(b) ...............
(c) ...............
(d) .....................
(e) .............. f) ................
(II) Regional Cadre
(a) .....................
(b) .............
(c) .............
(d) ...........
(e) ............
(f) ..........
(g) ..........
(h)
No doubt the posts which are held by the Petitioners neither fall under Central Cadre nor in Regional Cadre and therefore under this annexure could be deemed to be under the category "Not Transferable Post" and for this reasons the respondent in their correspondence relied upon by the Petitioners have referred these posts as non-transferable.
12. However, the important thing which need to be noted is that both Annexure-I and III were issued by the Director General Military Lands in exercise of power conferred under Rule 5(1) of the Rules of 1954 and in the same pattern Director General Military Lands on 03.11.1999 under exercise of the power conferred under the same Rules directed that all employees of Cantonment Boards in BS-5 and above who were in Non-Transferable categories were placed in Transferable Categories and therefore could be transferred anywhere throughout Pakistan. It is important to note that neither Annexure-I nor Annexure-HI were notified in official gazette nor under Rule 5 of Rules of 1954, there appears to be any requirement to notify and publish in the official gazette any consequent change, made by the Director, Military Land and Cantonments. Additionally, petitioners could not be allowed, to back their case on the basis of Annexure-I and III issued by the Director, Military Land and Cantonments while exercising power under Rule 5(1) of the Rules 1954 and dispute the change in posting and transfer brought by the same Director, Military Land and Cantonments in the same manner vide his letter dated 03.11.1999 declaring all employees of the Cantonment Boards in BS-5 and above to transferable categories. It is also important to note that the Petitioners have never challenged the vires of Rule 5 of the Rules of 1954 and for the first time before this Court have simply contended that since clause (c) of subsection (2) of section 280 requires that the rules for the purposes of appointment, control, supervision, condition of service, transfer, suspension, removal, dismissal and punishment of servants of Boards need to be published and, therefore, any change brought therein needs to be published. Suffice is to observe that Pakistan Cantonments Servants Rules, 1954 were duly published in accordance with requirement of subsection (1) of section 280 and no change in the said rule has been questioned nor it has been brought to our notice. It is only the exercise of power by the Director now Director General ML&C under Rule 5 of the Rules, 1954 and the question as to whether the powers so conferred on the Director, Military Land and Cantonments inter alia, to issue service policy, provide cadres declare posts as transferable or not are intra vires of clause (3) of subsection (2) of section 280 or not, nor the provisions of Rule 5(1) which confer such powers on the Director, Military Land and Cantonments were ever questioned.
On the contrary the entire case of the petitioners is based on Annexure I and III issued by the Director General ML&C in pursuance of Rule 5(1) of Rules of 1954. The contention thus fails.
13. Coming to the submissions of petitioner Tariq Iqbal, suffice it to observe that letter dated 4th November, 2011 was issued in consequent to the judgment of the Peshawar High Court in the case of Purdil Shah (supra), which on appeal of the Director General Military Lands and Cantonment Rawalpindi and others, did not find favour with this Court and consequently was set aside vide its' order dated 18.12.2013. Resultantly on 7th April, 2015, the letter dated 4th November, 2011 was withdrawn and it was declared that the policy in respect of transferable categories of Cantonment servants, declared vide letter dated 3rd November, 1999, shall hold the field.
14. For what has been discussed above, no case for leave is made out. These petitions, as a consequence, are dismissed. Leave is declined.