Tauqeer Ahmed Khan, Member. Through the lis at hand under Section 4 of the Service Tribunals Act, 1973, the appellant assails the order dated 08.11.2021 (allegedly conveyed through WhatsApp group) whereby he was transferred as Member (Motorways-South), NHA, Lahore (in his own pay and scale). His departmental appeal, preferred against the said transfer, remained unresponded.
Along with the appeal an application (Misc. Petition No. 48/2022) for condonation of delay has also been filed, duly supported by an affidavit.
2. The facts leading to the filing of this appeal are that the appellant is a BS-20 grade officer serving with the Respondent No. 1 as GM (Engr} BS-20. He was assigned the duties in the capacity of Member (South Zone), NHA vide office order dated 25.08.2020.
The appellant was initially appointed against the post of Project Engr (B-17) vide letter dated 14.03.1988 on ad-hoc basis, after fulfilment of all the codal formalities. His services were regularized vide order dated 13.12.1988 and, thereafter, worked with the Respondent No. 1 in the capacity of Assistant Director (BS-17), subsequently, promoted as Deputy Director (Engr) in the year 1995 and then as Director (Engr) (BS-19) in the year 2008. Thereafter, he was further promoted as General Manager (Engr) (BS-20) vide office order dated 14.12.2017 and served as Member (West Zone), Balochistan and lastly he was promoted by way of transfer, as Member (South Zone), NHA, vide office order dated 25.08.2020 and since then he always performed his duties honestly, regularly and punctually, to the entire satisfaction of his superiors. During the entire period of his service, there was not a single complaint lodged against him nor any show-cause notice was ever issued in relation to his performance. Due to his hard work and dedication, he was awarded numerous appreciation letters.
In utter disregard to his extra ordinary services, rendered during his long association with the respondent-NHA, the appellant was shocked to know about the impugned office order No. 22(1)- Admn(P-I)/NHA/21/974 dated 08.11.2021, initially conveyed through WhatsApp group whereby he, while serving as Member (South Zone), NHA, Karachi has been transferred to Lahore as Member (Motorways-South), NHA, Lahore, whereas Mr. Muneer Ahmed Memon Director (Eng) (BS-19) was posted in his place on OPS basis (own pay & scale) due to favoritism on the same date despite the fact that said Muneer Ahmed Memon is serving as Director (Engr) (BS-19) on OSD (due to NAB cases proceeding against him, he was to report to the Member (South Zone) NHA, Karachi) which practice has never been done in the department of respondent only with exception of this case.
The appellant was directed on telephone to join the new posting and thus he was forced to relinquish the charge on 08.11.2021 and Muneer Ahmed Memon submitted his charge assumption report on the same date vide report dated 08.11.2021.
It was stated in the, appeal memo. that the appellant was assigned the duties as Member (South Zone), NHA vide order dated 25.08.2020 and just after 12 months, he was transferred as Member (Motorways-South), NHA, Lahore, whereas, his counterparts, serving as Members in other zones/wings are continuing their tenure for the last more than three years in pursuance of National Highway Policy and Rules for the minimum tenure of posting the list of officers posted at different locations with their tenure dates has been mention in para-6 of the appeal and it was further stated that all the other officers, serving as Members, are senor Grade-20 officers and are posted according to their seniority in the relevant cadre and their service length and after being assigned the posts as member are serving since 2016, 2018/2019 respectively. But the appellant, in utter disregard of past practice and rules, has been transferred as Member (Motorways-South) Lahore and Mr. Muneer Ahmed Memon, currently a BS-19 officer OSD) on OPS basis and not yet promoted to BS-20 due to his involvement in corrupt practices, has been prosecuted by NAB, some inquiries against other officer before the NAB Balochistan. NAB has filed an Acquittal Appeal No. 14/2021 against acquittal of Mr. Muneer Ahmed Memon, which is still pending adjudication before the Hon'ble High Court of Balochistan at Quetta and the next date is 15.05.2022.
It was further stated that vide office order dated 14.10.2021, said Mr. Muneer Ahmed Memon was made as GM (Maint) Sindh-North), NHA, Sukkur on OPS basis OSD (Officer on Special Duty) without any assignment or portfolio along with any signatory authority only a couple of weeks before his posting as Member (South-Zone), NHA, Karachi vide office order dated 08.11.2021 due to his involvement in NAB cases in Balochistan and his services were placed at the disposal of Member South Zone and surprisingly, without being promoted to the post of BS-20, he has been assigned the post of Member (South-Zone), NHA, Karachi which shows the malafide on the part of respondents that by transfer of appellant, infact, space was created for said Mr. Muneer Ahmed Memon and as such, the transfer of the appellant is based on the favoritism, malafide and against the Rules of the National Highway Authority Rules 1995 as amended by Gazette Notification dated 19.11.2019. Rule-6(a) of National Highway Authority Rules, 1995 has been reproduced in Para-9 of the appeal memo. and it was contended that Mr. Muneer Ahmed Memon, OSD while serving in BS-19 on OPS basis has been posted as Member Swath Zone, on contravention of the above Rule of the respondent which clearly shows that the transfer of the appellant has been made just to pave the way for said Mr. Memon illegally and unlawful.
Despite lack of credibility and charges of corruption, said Mr. Muneer Ahmed is immensely connected within the NHA department and during his one month's tenure, under, the reporting of appellant, the former appraised the appellant that his days are going to be over and he soon will take over the charge of the appellant's post which perturbed the appellant there is delay of only four days, but the appeal is time bared by at least 15 days and thus liable to be dismissed.
On merit it was stated that the entire case of the appellant is based on frivolous contentions that the office' order dated 08.11.2021 whereby the appellant has been transferred from Member (South Zone), NHA Karachi (in his own pay scale) to Member (Motorways-South), NHA, Lahore (in his own pay scale) is illegal and in violation of applicable Rules and Regulations as the tenure of the appellant Member (South Zone), NHA, Karachi is secured for three years as prescribed under Rule 4.10 of the NHA Administrative Regulations, 2002. The appellant has deliberately concealed the actual applicable Rules and Regulations with intention to mislead this Tribunal to obtain interim order. The terms and conditions of the service of NHA officers are governed by (1) NHA Act, 1991; (2)
NHA Employees Service Rules, 1995; (3) NHA Appointment and Promotion Rules, 1995; (4) NHA Code, as revised in 2005 and (5) NHA Administrative Regulations, 2002. The NHA Act, 1991 is a primary legislation/Statute, governing the service of NHA employees. NHA Employees Service Rules and NHA Appointment and Promotion Rules are the Statutory Rules enacted and notified by the Federal Government under powers conferred upon it by Section 31, NHA Act, 1991. NHA Code (as revised in 2005) and NHA Administrative Regulations, 2002 are the Regulations made by the Authority under powers given to it by Section 32, NHA Act, 1991. It was submitted that the NHA Code provides the overall policy guidelines for the entire working of the Authority, whereas, the NHA Administrative Regulations provide the detailed guidelines for the administration wing of the Authority. The preamble of NHA Code makes it clear that in case of any dispute between the conditions and procedure laid down in the code (NHA Code) and those contained in the detailed procedure (NHA Admin Regulations), the former shall take precedence. Relevant provisions of laws applicable to transfer/posting and tenure have been reproduced in the comments, which will be considered/discussed later. It was on the basis of the said quotations contended that the entire case of the appellant collapses and this appeal may be dismissed.
It was further stated that before approaching this Tribunal appellant had filed a Civil Suit on the same cause of action before the Hon'ble High Court of Sindh being Suit No. 2679/2021. The appellant's application for interim injunction was dismissed on merits by the learned Single Judge and thereafter, he filed a HCA No. 18/2022 which was withdrawn as the appellant had no case to maintain. It was thus prayed that the appeal be dismissed and appellant be directed to join duties as Member (Motorways-South), NHA, Lahore.
4. Initially, the appellant did not include the Respondent No. 3 Muneer Ahmed Memon as party to the proceedings and it was on his application to become party, Muneer Ahmed Memon was arrayed as Respondent No. 3.
Written statement was filed on behalf of Respondent No. 3, taking preliminary objections, stating that the appellant is not a civil servant, he is employee of the National Highway Authority, therefore, not come within the definition of civil servant hence, the appeal is not maintainable and merits dismissal; the appeal is time barred; appellant has not filed departmental appeal against the impugned order dated 08.11.2021 which is violation of section-4 of the Service Tribunals Act.
However, the appellant annexed letter dated 08.11.2021 at Page No. 93 which is not departmental appeal, besides there is neither receiving stamp of the department nor any courier receipt is annexed with the instant appeal; appellant has initially filed a Civil Suit 2679/2021 before the Hon'ble High Court of Sindh and stay application was dismissed vide order dated 17.01.2022, then he filed HCA No. 18/2022 which was subsequently withdrawn on 31.03.2022, after filing the instant appeal before this Tribunal; that the appellant has not made party to the intervener/Respondent No. 3 in the instant appeal with malafide intentions, despite the fact that he was party in the Civil Suit and in the HCA.
On merits, it was stated that the appellant has no, cause of action to file the appeal against the impugned order dated 08.11.2021 which has been passed by the competent authority, whereby appellant has been transferred from Member South Zone NHA, Karachi to Member Motorways- South, NHA, Lahore. However, by the same impugned order, Respondent No. 3 was posted as Member South Zone, NHA, Karachi in his place. The competent authority has posted the appellant as well as respondent No.3 by the impugned order in accordance with law, however, the appellant has not filed any departmental appeal against the said order which is the requirement of Section 4 of the Service Tribunals Act, 1973, as such, the appeal is not maintainable and hopelessly time barred. It was stated that the Respondent No. 3 has been acquitted from the NAB reference which was based with malafides. It was further stated that the appellant is bound by law to obey the order of the higher authority and to join the new place of posting and he has relinquished the charge on 08.11.2021 to join the new assignment at Lahore, consequently, the Respondent No. 3 joined the post as Member South Zone, NHA, Karachi in compliance of the impugned order dated 08.11.2021. It is submitted that the Respondent No. 3 was not OSD but he is drawing time scale salary of Grade-20 officer, therefore, the allegation of the appellant is baseless having no legal weight.
Submitted that Respondent No. 3 is senior most in the seniority of his grade, therefore, competent authority has posted him as Member South Zone, NHA, Karachi without any favouritism.
It was stated that the appellant has not filed any departmental appeal against the impugned order dated 08.11.2021 which is evident from the fact that if he has filed the departmental appeal, then he should wait for 90 days in accordance with law if appeal was not decided by the department, then he has to file the instant appeal within 30days before this Tribunal, however, appellant initially filed Suit No. 2679/2021, obtained interim order dated 16.11.2021 which was finally dismissed on 17.01.2022 then again, appellant has filed the HCA 18/2021 before the Hon'ble High Court, obtained interim order dated 17.01.2022 in all the proceedings, the Respondent No. 3 was party and he has contested the matter in accordance with law. The appellant filed the instant appeal on 24.03.2022 during the pendency of High Court Appeal which was withdrawn on 31.03.2022. It is further submitted that the appellant has not filed any departmental appeal, but he has filed the false and bogus letter dated 08.11.2022 having no receiving stamp of NHA, therefore, the appeal is not maintainable without filing the departmental appeal, same be dismissed with costs. The appellant has filed false and frivolous medical report dated 19.03.2022 which is evident that he has performed his duty on 22.03.2022 as Member South. Zone, NHA. He has filed the bogus and false statement just to obtain the delay on condonation.
5. Affidavits in rejoinder have also been filed by the appellant to the comments filed by the respondent-NHA and by the Respondent No. 3, which have also been perused.
6. We have heard learned counsel for the parties at length and have minutely/carefully perused the record with their able assistance during the arguments and ourselves thereafter while preparing to write the judgment.
7. The preliminary legal objection taken by the Respondent No. 3 in its comments regarding appellant being not a civil servant is repelled in view of the fact that the Respondent No. 3 himself had earlier approached this Tribunal in Appeal No. 1081(R)CS/2002 challenging his dismissal from service vide letter dated 29.03.2002 in pursuance of letter dated 03.05.2001 and an order dated 05.08.2003 was passed by this Tribunal, therefore, this plea is not available to the Respondent No. 3 and cannot be allowed to be raised. No such point is taken by the official respondents either in the comments or even during the arguments.
8. A very important legal point (preliminary legal objection) has been taken by both the respondents i.e. official and private in their respective comments with regard to maintainability of the appeal due to non-filing of departmental appeal by the appellant.
We would take up this point first before proceeding further with the merits of this case. Although the point of non-filing of departmental appeal has very clearly been taken by the respondents in their comments, but in affidavits-in rejoinder filed by the appellant to both the comments, same have not been specifically denied. It was specifically stated by the Respondent-NHA in preliminary objection No. A that, "the alleged departmental appeal filed by the Appellant along with this Appeal (Annexure A/12) is a fake and forged document which has been filed merely to overcome the legal bar", but in the rejoinder affidavit (para-3), it was stated by the appellant that, "That the contents of paragraph "A" under the Heading, "Preliminary Legal Objections" of the said Objections/Comments are incorrect, false and frivolous hence denied vehemently, the deponent of the said Objections/comments is put to the strict proof of the allegations levelled in the paragraph under reply".
In its comments, Respondent No. 3 took specific legal objection in para-iii that, "That the appellant has not filed the departmental appeal against the impugned order dated 8-11-2021 which is violation of the Section 4 of the' Services Tribunal Act, 1973. However, the appellant annexed letter dated 8-11-2021 at Page No 93 that is not departmental appeal, besides there is neither receiving. stamp of the department nor any courier receipt is annexed with the instant appeal". In the rejoinder affidavit the appellant in para-5 thereof, has stated that, "that the contents of paragraph "iii" under the Heading "Preliminary Legal Objections" of the said Written Statement are incorrect, false and non-appraisal of the above appeal and the annexed documents and misleading hence denied vehemently. The deponent of the said WS is put to the strict proof of the same".
On this very legal point having been contested by the respondents, we have gone through the alleged departmental appeal (annexure `A/12' at page-95) and the relevant para in this respect is para-11 of the appeal memo. Neither any documentary proof of sending/service of such appeal has been annexed nor it is mentioned in para-11 that how was it sent/dispatched to the respondents or served. Even no such argument was advanced on behalf of the appellant on this point orally or even in written synopsis, which we have carefully perused, consists of nine (09) pages, submitted on 13,06.2022. The alleged departmental appeal even does not bear stamp of the department having received the same, no courier/postal receipt has been produced/annexed with the appeal memo. to show that it was sent through such mode; hence, it can be safely concluded that the appeal in the present form is not tenable as no departmental appeal/ representation has been filed to meet the requirement of Civil Servants (Appeal) Rules, 1977 as well as Section 4 of the Service Tribunals Act, 1973, thus the appeal in the present form is not maintainable. When there is no departmental appeal, appeal before the Service Tribunal is not competent.
9. Section-4(1)(a) of the Service Tribunals Act, being relevant in this context, is reproduced hereunder:- "(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred"
In the instant case, appellant has failed to file departmental appeal before the departmental authority prior to approaching this Tribunal. It is an admitted position that the appellant did not file any departmental appeal against the impugned order 08.11.2021 and if any filed, no proof has been placed on the file. In this context, we may rely upon a judgment Hon'ble Supreme Court reported in 2011 PLC (CS) 671 where it was held that, "..............Held, it was condition precedent that civil servant had to file departmental appeal/representation before the Departmental Authority; and thereafter availing 90 days, appeal was to be filed before the Service Tribunal Within one month..............."
10. On merits also, appellant has no case at all as transfer and posting is the part of the terms and conditions of service and the employee has no vested right to remain at a particular place/post and for any particular time. The competent authority has passed a perfectly legal order according to its mandate and requirement. The appellant has admittedly relinquished the charge and the officer/Respondent No. 3 has assumed his charge, which fact alone disentitles the appellant from seeking any relief. This very fact is admitted by the appellant himself in para-5 of the appeal.
11. Rules-30 of NHA Employees Service Rules, 1995, NHA Administration Regulations, 2002 and Regulation-17, Chapter-5 of the NHA Code are relevant in the context of transfer/posting and tenure and reproduced as under for brevity sake: "Rule-30. The competent authority may post or transfer an employee of the Authority to the Head Office or to any of the subordinate offices in Pakistan under its administrative control or management".
"4.10: The normal tenure of posting of officers and staff in NHA shall be three years on same post, which can be extended for further two years on the recommendation of Member concerned"
4.11: the above principle may not apply in cases of purely technical officers/experts, who have been recruited for a particular post/cadre".
Regulation.
17. Except for Chairman and Members, the normal tenure for an officer on the same post would be three years and would not exceed five years in any case."
12. The term transfer has been used with posting in Section-10 of the Civil Servants Act, 1973 and the Hon'ble Supreme Court in its judgment as reported in 2017 SCMR 798, has been pleased to observe: "16. From the above, the following inference can be drawn: i. It is within the competence of the authorities to transfer a civil servant from one place to another to meet the exigencies of service or administration; .provided his terms and conditions of service are not adversely affected; ii. A civil servant has no vested rights to claim posting or transfer to any particular place of his choice, nor has he any right to continue to hold a particular post at a particular place; iii. His transfer and posting is limited to the given tenure, or at the pleasure of the competent authorities; iv. Normally, he is not required to acquire any specialized skill or professional training in order to serve at the new post or place; v. His seniority and progression of career in terms of promotion and other benefits of the service are not affected by the transfer and he remains pegged to his batch or group to which he was initially appointed after completing the required common and specialized trainings and after passing the required departmental examinations conducted by the FPSC; vi. He is posted and transferred routinely in the same grade or scale that he possess in his service or group; unless the rule requires so or allows so".
In the letter of appointment dated 04.03;1988, produced by the appellant himself at page-23 (annexure A/2), it has been clearly mentioned that:- "g. you may be posted or transferred to the Head Office of the Directorate General, National Highways or Sub-Office any where in Pakistan".
And further it was mentioned in the said letter of appointment that: "3. If the offer of appointment on the terms and conditions specified above is acceptable, you should report to the Project Directorate at the following address immediately but not later than 3- 3.1988. A written acceptance of the offer will be submitted to the undersigned immediately".
In this respect, in a case as reported in 2021 SCMR 1064 it was observed by the Hon'ble Supreme Court that:- "6. Perusal of the aforesaid clauses clearly reflects that it was made clear to the petitioner that only if he accepts the aforesaid clauses, he should report for duty, joining of duty to the petitioner means that he had accepted clause 8 of the appointment letter, which says that his service is transferable at any other station throughout Pakistan. In this view of the matter when the petitioner had accepted the conditions mentioned in the appointment lettei, he was estopped to challenge the transfer order before the High Court".
13. In a case reported in 2019 PLC (CS) 492, the Hon'ble High Court of Sindh has been pleased to observe that:- "As to the ground that in view of the judgment commonly known as Anita Turab's case a Civil Servant cannot be transferred until the tenure of the posting has been completed, we may observe that firstly, the Honourable Supreme Court has not held that it is to be applied in each and every case, whereas, an exception is already provided therein".
And after reproducing paras-22(ii) and 23 of Anita Turab's case, it was further observed by the Hon'ble High Court that: "On a careful perusal of the above findings, it is clear that the contention of the petitioners Counsel is completely misconceived and based on a wrong and fallacious perception and understanding of the said judgment. Enough room has been provided for the Government to act in accordance with law as well in view of the prevailing situation and given facts".
Though in ordinary course transfer is not expected to be made till completion of tenure for three years but the department can make transfer in the exigency of work before that period and if any case law is needed, same can be find in PLD 1995 SC 530. Of course, the employee was liable to be transferred in the administrative exigencies from one place to another. The competent authority had prerogrative to transfer any employee and as a general rule the Courts should refrain from interfering, in posting and transfer matters, when there was no element of mala fide or such plea was taken without any substance. Transfer and posting is part of service and it is for the authority to see that where services of any staff member are required. If in such administrative matters, interference is made by the Courts routine, the working of the departments will be adversely affected 'and the masses for whose welfare such Institutions have been established by spending huge amount of exchequer/taxpayers will be the ultimate sufferers.
14. Admittedly, the appellant before approaching this Tribunal, had filed a Civil Suit bearing No. 2679/2021 before the Hon'ble High Court of Sindh at Karachi and an order dated 12.01.2022, having been passed by the Hon'ble Court, has been placed on record and the conclusion drawn by the Hon'ble Court from pages-3 to 4 are as under: "I have heard the learned counsel and perused material available on record.
The appointment letter available at page 39 Annexure P/5 provides that the appointment shall be governed by Federal Government Employees .rules of the category that employees belongs to.
Clause (g) of the appointment letter provides that an employee may be posted or transferred to the head office or to the directorate general, National Highway or sub-office anywhere in Pakistan.
The appointment letter further provides that other terms and conditions will be same as applicable to Federal Government Servants of the category concerned.
There is no cavil to the fact that the plaintiff is an engineer and Member Technical as disclosed in the transfer letter of 08.11.2021. The gazette rules that concerns with the posting and transfer in terms of Chapter V of the National Highway Authority's Employees Service Rules, 1995 framed under National Highway Authority Act, 1991 duly framed by the federal government, recognizes that the competent authority may post or transfer an employee of the authority to the head office or to any of the subordinate offices in Pakistan under its administrative control or management, which has only gained strength on the basis of NHA Code 2005 which excludes Chairman and Member from the applicability of normal tenure for an officer on the same post for three years and not extendable for a period of more than five years "in all". Thus, even the Code excludes Chairman and Member Technical from application of such normal tenure of an officer/employee.
There is no question of violation of any fundamental right and it is not established at all by the plaintiff that it is a colourable exercise of powers as he himself has placed an itinerary of his transfer and posting at page 19 of the file which shows that for almost all, he never remained at any post for a period of three years approximately. I am of the view that an employee with such rules as called National Highway Authority Employees Service Rules, 1995 or the terms and conditions of either statutory or accepted ones cannot object to such transfers and postings being part and parcel of service terms. Hence the application in hand seeking injunctive orders merits no consideration and is dismissed accordingly".
15. It is an admitted fact that the appellant was BS-20 Engineer Officer working in NHA since 1988.
He was posted as Member (PPP), NHA, HQ (in his own pay and scale) by order dated 08.11.2019, whereafter, posted as Member (South Zone), NHA, Karachi (OPS) vide order dated 25.08.2020.
Thereafter, the appellant was transferred as. Member (Motorways South), NHA, Lahore (OPS) on requirement basis vide office order dated 08.11.2021. The reason of transfer of the appellant was that no other Engineer officer of BS-20 or BS-21 was available for posting as Member in NI-IA. The Authority can post any Employee anywhere in. Pakistan as per Rule 30 of NHA Employees Service Rules, 1995 on requirement basis. Appellant's employment is governed by said Rules is deemed to have been accepted under which the competent authority may post or transfer any employee of the authority to the Head Office or to any of the subordinate offices in Pakistan under its administrative control. It has been stated by the Respondent No. 3 in its written statement that he is posted as Member South Zone, NHA, Karachi in accordance with law as he is senior most in the seniority of his grade, therefore, competent authority has posted him as Member without any favouritism, besides he was not OSD but drawing time scale salary of Gfrade-20 officer, therefore, the allegations are baseless. His assertion with regard to drawing of time scale salary of Grade-20 has not been specifically denied by the appellant in his rejoinder affidavit (refer para-13). It was denied by the Respondent No. 3 that he is an OSD officer and appellant has misquoted the rule which is reproduced as under, which is particularly for the regular promotion and the appointment for the post of BS-20 or 21 only: "Rule-6(a). Provided that a member in BS-21 may also be appointed by promotion from amongst regularly promoted or appointed officers in BPS-20 of the authority on the recommendation of the selection committee for promotion.
(b) Provided further that appointment for the post of member BPS-20 or BPS-21 by transfer or deputation shall be made with the approval of the President, NHA"
The case law relied upon/referred on behalf of the appellant, in view of the peculiar facts and circumstances of the case in hand, are distinguishable; hence, not applicable.
16. For what has been discussed above, we are of the considered opinion that no case has been made out by the appellant for grant of appeal or interim relief, therefore, we dismiss the appeal along with the listed applications (Misc. Petitions), with no order as to costs. Interim orders/dated 25.03.2022 and 16.04.2022 stands automatically recalled vacated. Parties be informed.