Naseebullah Tareen, Chairman. By filing instant Service appeal under S.4 of the Balochistan Service Tribunals Act, 1974, appellant has sought following relief: "It is therefore, in view of the above submissions, respectfully prayed that instant appeal may kindly be accepted and impugned transfer Order/Notification No. S-11-2(1)/2023- S&GAD dated 27-03-2023, passed by the Respondent No. 1 may graciously be set-aside, in the interest of justice.
Any other relief which this Hon'ble Tribunal deems fit and appropriate may kindly also be granted
2. Brief facts for filing of present appeal are that, appellant being a civil servant belonging to (BCS(BPS-18), since appointment of appellant as civil servant, the appellant having an unblemished service record. Appellant was transferred/posted as Deputy Commissioner Killa Saifullah on 06-02-2020, while within a short period, the appellant was transferred from the post of Director General Charities, Registration & Regulation Authority posted vide Notification No. S.VIII- 2(2)/2022-S&GAD dated 25-05-2022, and then transferred/posted as Administrator Metropolitan Corporation, Quetta (BCS/BPS-19) and lastly, the appellant was transferred/posted as Additional Secretary Chief Minister Secretariat, Balochistan, Quetta. The appellant being aggrieved from Notification dated 27-03-2023, on which preferred the departmental appeal to the competent authority, while the same remained unattended, having no alternative remedy, except to invoke the jurisdiction of this Hon'ble Tribunal under Section 4 of the Balochistan Service Tribunal Act, 1974.
3. Learned counsel for the appellant stated that, the case of appellant is one of frequent posting/transfer, because time and again without any plausible reason and no exigencies of service is shown in the notification issued by the official respondents, and it is clear violation of principle laid down in number of Judgments passed by the Apex Court, as wed as the Judgments of posting/transfers of civil servants, reported in, titled as Aneeta Turab's case PLD (PLD 2013 SC 195). Learned counsel for appellant further stated that within a sport span the appellant while holding number of positions was not let to complete his normal tenure of posting on any one without any rhyme or reason.
4. Tribunal Learned counsel for Respondent No. 3 filed counter affidavit. The learned State Counsel also filed Para-wise comments on behalf of official respondents and stated that the posting/transfer of a civil servant is the prerogative of the competent authority on the basis of exigency of service as well as in view of public interest.
5. Heard the learned counsel for parties and perused the record minutely. The appellant is mainly aggrieved from the notification impugned dated 27-03-2023, where the appellant was transferred as Administrator Metropolitan Corporation, Quetta to Additional Secretary Chief Minister Secretariat, Balochistan, Quetta against an existing vacancy and Respondent No. 3 was posted as Administrator Metropolitan Corporation, Quetta.
6. It is contended by the learned counsel for appellant, since he was convenient and he was functioning smoothly, was transferred without completing his normal tenure as Administrator Metropolitan Corporation, Quetta which caused serious prejudice to him. When confronted with the above facts to the learned State Counsel and counsel for appellant that how the Administrator in Metropolitan Corporation, Quetta can be appointed under the law? And time and again this question was put by this Tribunal to the counsel for parties and also the Secretary S&GAD was directed through learned State Counsel to produce the process (summary/notes) of posting/transfer of Administrator Metropolitan Corporation, Quetta. If the same is processed through any summary the same be placed on record, but they were unable to produce a single document about the process for issuance of notification dated 27.3.2023, as well as the notification dated 25-05-2022, whereby the appellant was transferred and the Respondent No 3 was posted/transferred as Administrator Metropolitan Corporation, Quetta. It is observed that, for the appointment of Administrator Metropolitan Corporation. Quetta, under which law the competent authority is empowered to appoint the Administrator Metropolitan Corporation, Quetta. During the course of arguments learned counsel for appellant placed on record the notification dated 19-07- 2023, where the Respondent No. 3 is posted/transferred with prior approval of the competent authority as Deputy Commissioner Pishin at Pishin, therefore, in the above circumstances the Respondent No. 3 is not in contest. However, the notification dated 27-03-2023, exists to the extent of posting/transfer of appellant.
7. The facts that contention of counsel for parties are taken into consideration and have come to the conclusion that the appointment of Administrator Metropolitan Corporation, Quetta under Section 26(1)(a)(b) read-with S.129(1) of Local Government Act has authorized the "Government" to "appoint" any person as Administrator to perform such functions of the Local Council. While, it is also pertinent to mention here that Local Council terms were completed in the year, 2019 but till date, the election of Local Council, Quetta District has not been conducted, but the S.16(2) of Local Government Act, 2010 is clear that Election Commission will conduct the Elections of Local Counsel provisions of above Section are reproduced herein below:
16. Election Commission. (1) Elections to the local councils shall be conducted by the Election Commission.
(2) The Government shall, in consultation with the Election Commission make an announcement of the date or dates on which elections to the local councils shall be conducted in the Province or part thereof.
Provided that the date or dates of such elections shall not be less than 90 days and more than 120 days from the date of such announcement.
"26. Term of office. (1) The term of office of a Local Council shall be four years: or such other period as the Government may specify commencing on the day on which it assumes office; provided that the Government may-
(a) Before the expiry of such term of office, and for the purpose of holding fresh elections, dissolve any or all local councils and appoint any person as Administrator to perform such functions of the local council;
(b) On the expiry of such term of office, extend it for such period and appoint any person as Administrator to perform such functions of the local council;"
Person (Black Law Dictionary): A man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes.
Government: The regulation, restraint, supervision, or control which is exercised upon the individual members of an organized jural society by those invested with the supreme political authority, for the good and welfare of the body politic; or the act of exercising supreme political power or control.
Merely because the two words used in Section 26(1)(a)(b) read with Section 129 of Local Government Act, 2010 the word appoint means to designate, ordain. Prescribe nominate, this means that any person as Administrator to perform such functions of the Local Council and further it is clarified in Section 129 of Local Government Act, 2010, which is reproduced as under: "129. Dissolution and Suspension. (1) Government may by notification in the official gazette dissolve or suspend a Local Council for a period specified in such notification and appoint any person as Administrator if there are reasons to believe that a Local Council:
(b) all functions of the local council shall, during the period of suspension, be performed by such person or authority as Government may appoint in this behalf."
The Provincial Government.
[Article 129. (1) Subject to the Constitution, the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, which shall act through the Chief Minister.
(2) In the performance of the functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers.] We are fortified in our view by the following principles enunciated by honourable supreme Court of Pakistan in the case of Messers Malik Mazhar Hussain Goraya vs. Government of Punjab and others, reported as PLD 2023 Lahore 257 the honourable Supreme Court of Pakistan held that: Punjab Local Government Act (XXII of 2022)-- "Appointment of Administrators and assigning of functions and power under Notification dated 21- 10-2022, by Chief Minister Punjab, without approval of Cabinet was without lawful authority-- Functions, riot powers to be exercised by elected Local Government, could be ratified and continued by the Administrators appointed in accordance with law--All new development projects, not approved by Defunct Local Government, were declared without lawful authority.
Further in the same Judgment the Hon'ble Supreme Court has held that: "Absence of Cabinet's approval for appointments of Administrators would be an incurable defect.
Appointment of an Administrator in a Council or Local Government comes within re-organization of Defunct Local Government, as envisaged in subsection (3) of both Sections 205 and 211, which can be done by the Provincial Government. The law is settled in Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808) that powers of a government can be exercised only through Provincial Cabinet. Though Chief Minister is or was empowered to appoint an Administrator in accordance with respective provisions of both Sections, yet the appointment being an act of re-organizing, has to be of the Provincial Government. Reference of Section 211(1) in the Notification dated 20-10- 2022 is inconsequential because the subsection (1) of both the Sections 205 or 211, envisages only continuity of all officers, agencies and authorities of Defunct Local Government and not creation of or new appointment in an office, not in existence at the time when the Local Government became defunct. The purpose for appointment of an Administrator is to ensure continuity of public service only by performing functions to carry out the decision already made by the Defunct Government, exercising its powers in accordance with line" (emphases provided)
8. That the notification dated 25-05-2022, issued by the Chief Secretary, Balochistan whereby, the appellant was posted/transferred from Director General, Charities, Registration & Regulation Authority to Administrator Metropolitan Corporation, Quetta and further the appellant was transferred/posted as Additional Secretary, Chief Minister Secretariat against an existing vacancy.
When we observed the contents/language of aforesaid notifications through notification when the appellant was transferred/posted as Administrator Metropolitan Corporation, Quetta and the other notification dated 27.3.2023, from which the appellant become aggrieved and made it impugned in the instant appeal, the word posting/transfer has been used and word of appoint has never been used for the appointment of appellant as Administrator Metropolitan Corporation, Quetta. It means the procedure under the provided provisions of Constitution of Pakistan. Rules of Business, and Local Government Act, 2010 has not been followed. This aspect of the case was to be taken into consideration in the light of principles laid down in the Judgment supra.
9. Thus, in view of above, posting/transfer of appellant as Administrator Metropolitan Corporation, Quetta was not in the purview of Balochistan Government Rules of Business, 2012 framed in exercise of power conferred by Article 139 read with Article 129 of the Constitution of Islamic of Republic of Pakistan, 1973, and under Section 26(1)(a)(b) read with Section 129(1)(b) of Balochistan Local Government Act, 2010, therefore, the notifications dated 25-05-2022, and 27-03-2023 to the extent of appellant's posting/transfer are set-aside, the interim order dated 17-05-2023 is hereby recalled and the Government of Balochistan is directed to appoint the Administrator Metropolitan Corporation, Quetta within (15) days, carried the process under the law, of receipt of copy of this Judgment.