MUMTAZ AHMED, CHAIRMAN. Asghar Khan Appellant, through this Service Appeal bearing No. 35/2024, questioned and impugned the Notification No. SO(S)1-2(5)/2023 dated 18 February 2024, issued by Gilgit Baltistan Secretariat (Service and General Administration and Cabinet Department), whereby he has been posted/transferred from Assistant Commissioner Danyore to Assistant Commissioner Shigar on administrative ground as well as in public interest.
2. Additionally the appellant Asghar Khan, submits an application under Order XXXIX, Rules 1 and 2 read with sections 151/94, C.P.C., requesting the suspension of the impugned notification dated 18 February 2024, in the following manner:- "In the above Circumstances it is therefore, most respectfully prayed that this Hon'ble Tribunal may graciously be pleased to suspend the operation of impugned Notification No. SO(5)1- 2(5)/2023 dated 18 February 2024 to the extent of Applicant/Appellant and further restrain the respondents Nos. 1 to 3 from relieving the Applicant/Appellant from the post of Assistant Commissioner Danyore, till final decision of above titled appeal to meet the end of justice."
3. We after heard the preliminary arguments of the applicant appellant and vide our order dated 04.3.2024 passed the following order till the date fixed, with direction to the respondents to file their parawise comments/reply. The relevant paras of the order is reproduced for reference as under:- "Along with appeal C. Misc Nos. 7 and 8 filed under Order XXXIX, Rules 1 and 2 read with Section 151, C.P.C. for suspension of operation of impugned Notification No. SO(s)-1-2(5)/2023 dated 18th February 2024, impugned relieving order No. SO(S)-12(5)/2023 dated 02nd March 2024 and impugned, charge assumption report dated 02nd March 2024 which are duly verified on Oath.
In the meanwhile the operation of the impugned Notification No.SO(S)-1-2(5)/2023 dated 18th February 2024, impugned relieving order No. SO(S)-12(5)/2023 dated 2nd March 2024 and impugned charge assumption report dated 2nd march 2024 to the extend of appellant are hereby suspended till further order"
4. Today the matter was fixed for arguments and heard the counsel for the parties at length.
5. Facts of the matter are that the applicant/appellant alleges that the respondents Nos.1 to 3 have frequently transferred the applicant without any fault through various Notifications from one place to another and finally aggrieved of the Notification dated 18 February 2024, whereby the applicant was transferred from Assistant Commissioner Danyore to Assistant Commissioner Shigar.
6. Learned counsel for the applicant argued that during a short span of time the authority make the applicant a rolling stone and consecutively posted/transferred from one station to another without any fault on the part of applicant; submits that respondent Nos. 1 to 3, on 19 August 2022, transferred the service of applicant from Assistant Commissioner Gojal Hunza as Assistant Commissioner (implementation) in DC Office Gilgit vide Notification No SO(S) 1-2(39)/2022, then vide Notification No. SO(S)-1-2(7)/2023 dated 04 February transferred from Assistant Commissioner (implementation) Gilgit to Assistant Commissioner Danyore, here the matter does not stopped, through another Notification No. SO(S)1-2-(7)/2023 dated 19 October 2023, the applicant/appellant was transferred Assistant Commissioner Danyore to Assistant Commissioner Gojal, which was subsequently withdrawn vide notification No. SO(S)1-2(7)/23 dated 5th December 2023 and declared the previous Notification dated 19 October 2023 as ab initio on administrative ground. Again vide Notification No. SO(S) 1-2(5)/2023 dated 18 February 2024 (impugned Notification) transferred the applicant/appellant from Assistant Commissioner Danyore to Assistant Commissioner Shigar; contented that these successive transfers amount to cruelty, violating the applicant's fundamental rights and against norms of justice; argued that the impugned Notification is based on mala fide, arbitrary, fanciful, and just to create hardship to the petitioner; argued that frequent transfer of the applicant from one station to another is clear cut violation of service rules, further contended said postings orders passed by the respondent is also in violation principle laid down by the Hon'ble Supreme Court of Pakistan as laid down in the judgement PLD 1995 SC 530; submits that the petitioner asserts compliance with all prior orders but is now subject to undue hardship due to frequent transfers from one place to another without affording proper opportunity to serve in the public interest, just to favor the blue eyed persons of the respondents; contended that the applicant filed a departmental appeal to redress his genuine grievance which has gone unanswered and put in a cold storage, which further shows the mala fide on the part of competent authority, hence leaving no recourse seeks judicial intervention of this Tribunal. Learned counsel for the applicant relied on the following judgments: i. 2021 GBLR 110 passed by the Hon'ble Supreme Appellate Court in the case titled Chief Election Commissioner GB v. Muhammad Qadeer ii. 2011 PLC (C.S.) 993 iii. PLD 1993 SC 530(b) iv. Anita Turab v. Federation of Pakistan
7. On the other hand, the learned law officer contends that posting and transfers are routine administrative matters conducted in the public interest to ensure the smooth function of Government affairs; argued that the respondents have not treated the applicant unfairly and all transfers were made on administrative ground as well as in public interest as mentioned in the Notifications, by the competent authority. Emphasizing the applicant is a civil servant governed by the GB Civil Servants Act, 2011; argued that posting and transfers are not absolute rights but subject to administrative discretion; further argued that the compliance with transfer order is mandatory for a civil servants and refusal is not permissible; the law officer further maintains that there is no malicious intent on the part of the competent authority, and posting/transfers are integral parts of the terms and conditions of the service and not subject to individual preference or refusal. Relied on following judgement: i. 2011 SCMR 1064 ii. 2023 SCMR 2119 = 2024 PLC (C.S.) 77.
After hearing both parties and examining the relevant records, we intend to reach a fair conclusion in disposing off this appeal.
9. The controversy stems from the series of transfer Notifications affecting the applicant, Asghar khan, culminating in the disputed Notification dated 18 February, 2024. We seek to ascertain whether the transfer order concerning the applicant was motivated by malice, arbitrary, bias or ill- will on the part of the competent authority. To arrive at a just and right conclusion, it is necessary to reproduce Section 9, of GB Civil Servants Act, 2011, which stipulates as under:- "9. Posting and Transfer:- Every civil servant be liable to serve anywhere within or outside the Province in any post under the Government of the Gilgit Baltistan or the Federal Government or any Provincial Government or a local authority or a corporation or a body setup or established by any such Government..."
10. According to section 9 of GB Civil Servants Act, 2011, which stipulates that every civil servant may be required to serve in various position under different government entities; consequently, the right to a specific posting not absolute, and a civil servant is oblige to comply with transfer orders issued by the competent authority. However, upon examination of record and while considering the applicant's grievances regarding frequent transfers without substantial justification, it becomes apparent that the competent authority has subjected the applicant to undue instability, impeding his ability to discharge duties effectively, however this kind of practice of recurrent transfers within short span of time is a deplorable, as it prevents the civil servant from setting into a role and perform their duties at their best. It is essential to point out/underscore that posting and transfer decisions are inherent administrative functions of the Government, and a civil servant cannot unilaterally refuse or impugned such orders in contravention of the terms and condition of their service; furthermore, it is worth mentioning to here that it is not appropriate to interfere in the administrative affairs and policy decision of the Government, where no legal right of a person infringes. This principle finds support in case law, as precedent set in "Dr. Muhammad Saleem v.
Government of Balochistan and others" 2023 SCMR 2119 = 2024 PLC (C.S.) 77 where in it has been held by the Hon'ble Supreme Court of Pakistan as under: "This Court has already highlighted the scope of interference with the executive function of posting anti transfer of Government officials. It has been held that the transfer of a government official from one place or post to another to meet the exigencies of service was within the exclusive domain and competence of the competent authorities of the executive organ of the state and ordinarily, it is not amenable to interference except in extraordinary circumstances.
This principle is subject to the condition that the terms and conditions of service are not adversely affected. Moreover, an official has no vested right to claim to be posted/transferred to any particular place of his choice, nor is there a vested right to continue to hold a particular post at particular place. The transfer and posting of a Government servant is limited to the given tenure, if any, or at the pleasure of the competent authority. The question of whether the posting and transfer made by the competent authority was in the public interest is not open to judicial review by a tribunal or court and utmost caution and restraint ought to be exercised in interfering with or encroaching upon the exclusive domain of executive authorities. The decisions in connection with posting and transfer of government servants must not be subjected to judicial scrutiny unless a law has been clearly violated or mala fide and malice is established without the need for making an inquiry. The interference of the tribunal or courts in matters relating to posting and transfers is, therefore an encroachment upon the executive domain and in breach of the seminal principle of separation of power embedded in the Constitution."
11. Likewise in case titled "Dr. Imtiaz Ellahi Piracha v. Government of Punjab", cited in '2004 PLC (C.S.) 705', whereby the Hon'ble Court held as under:- "Transfer of civil servant from one place to another exigencies of service or on administrative ground such order are not in violation of transfer policy."
12. In another case, "Muhammad Sajjad v. Federation of Pakistan and others", reported in '2021 SCMR 1064', wherein the Hon'ble Supreme Court of Pakistan observed as:- "Transfer of an employee/public servant falls within the ambit of terms and conditions of service, which includes transfer and posting. Transfer and posting are part of conditions of service and it is for the authority to determine where a civil servant is to be posted."
13. Last but not least that a Civil Servants Act, 1973 read with relevant provision of Gilgit Baltistan Civil Servants Act, 2011, it is within the competence of the authority to transfer a civil servant from one place to another place to meet the exigencies of service or administration, provided his terms and conditions of service were not adversely effected, moreover, the civil servant has no vested right to claim posting or transfer to any particular place of his choice, nor did he has any right to continue to hold a particular post at particular place. From the record it appears that applicant is serving as Assistant Commissioner Danyore since 04 February 2023 and almost serving as Assistant Commissioner Danyore more than one and half year as his subsequent posting order dated 19 October 2023 was withdrawn vide notification dated 05 December 2023, hence the grievance of the applicant for frequent posting from one place to another place in short span of time is not surface from the record.
In wake of the discussion above we are not inclined to accept this appeal and dismissed the same being meritless.