Naseebullah Tareen, Chairman. This appeal under Section 4 of the Balochistan Service Tribunal Act, 1974 is directed against the Notification No. S-II-2(4)/2023-S&GAD dated 02-04-2023, issued by Respondent No. 1 whereby, appellant was transferred from the post of Managing Director Gwadar Industrial Estate Development Authority (GIEDA) and was directed to report Secretary Labour and Manpower Department. The appellant has sought the following relief: "In view of the facts and circumstances enumerated in the preceding paragraphs and in the larger interest of justice, fair play, and equity it is prayed that this Hon'ble Tribunal may graciously be pleased to:- a. Declare the impugned Notification No. 3-11-2(4)/2023-S&GAD dated 02-04-2023 issued by Respondent No. 1 as illegal and void. b. Allow the appeal and to set aside the aforesaid impugned Notification and to restore the Notification dated 13-02-2019. c. Direct the respondents to allow the appellant to perform his duty as Managing Director, GIEDA d. Any other relief which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case be awarded."
2. Succinct facts leading to filing of this appeal are that appellant was initially appointed as Principal BPS-17 Labour Department Labour Education Wing in the year 2002. Thereafter, in the year, 2008 he was promoted as Deputy Director BPS-18 and was again promoted to the rank of BPS-19 as Director Workers Welfare Board Labour Department. After that, the appellant was transferred and posted as Acting Managing Director GIEDA against an existing vacancy vide Notification No. S.VIII- 2(15)/2019-S&GAD dated 13-02-2019, while the appellant was dealing his services with regard to the assigned post, but all of sudden he was uprooted from his place of posting and was directed to report to Secretary Labour and Manpower Department vide Notification No. S-II-2(4)/2023-S&GAD dated 02-04-2023 (hereinafter referred as impugned notification) with prior approval of the Competent Authority (Chief Minister) and in his place Respondent No. 5 was posted. Feeling aggrieved from impugned Notification dated 02-04-2023, appellant preferred departmental appeal on 03-04-2023, which remained un-attended/un-responded, therefore, appellant invoked the jurisdiction of this Tribunal by filing instant service appeal on 03-05-2023.
3. Learned counsel for appellant argued the main appeal as well as the CMA No. 716/2023 filed to suspend the impugned Notification dated 02-04-2023, where the appeal was admitted for regular hearing and the operation of impugned notification was suspended vide Order dated 04-05-2023, thereafter Notices were issued to the respondents. The parties were directed to file the Para-wise comments or Counter Affidavit. The replies were completed and the case becomes matured.
Learned counsel for appellant contended that Respondent No. 5 is a junior officer of BPS-18 and appellant is a senior officer of BPS-19 and the appellant during his posting streamlined and aerodynamic the routine. Business affairs of GIEDA and also given Infrastructure/Developments.
Learned counsel further contended that real brother of Respondent No. 5, namely Mr. Mehboob-ul- Hassan who was posted as Director General Industries being Member of Board of Directors, GIEDA, by virtue of post is the ex-officio member of Board and is also facing two (02) NAB references pending in NAB Court. He contended that the impugned notification has been issued in illegal and haphazard manner without mentioning any exigency of service and the same has been issued on holiday (Sunday) which is also against the rules and Regulations, he finally prayed for setting aside the impugned notification. In support of his contentions learned counsel for appellant relied on case laws reported in PLD 1994 Supreme Court 539 + PLD 1973 Supreme Court 49 + 2014 SCMR 676 + 2011 PLC (C.S.) 1489.
4. Conversely, learned counsel for Respondent No. 5 as well as the learned Additional Advocate General (AAG) and legal Advisor for GIEDA while supporting the impugned notification objected the maintainability of instant service appeal in bar contained in S.10 of the Balochistan Service Tribunals Act, 1974 which is reproduced below: "10. Posting and transfer. Every civil servant shall be liable to serve anywhere within or outside the Province of Balochistan, in any post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: Provided further, that where a civil servant is required to serve in a post outside his service or cadre, his term and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
The subject provision of the Act provides that no Government servant shall claim to be posted on any post for a particular period at particular incumbency. It was also the contention of learned State Counsel that "every Civil servant shall hold office during the pleasure of the Government" as provided in S.4 of the Balochistan Civil Servants Act, 1974, as such appellant cannot raise any legal objection to his transfer being a civil servant. Furthermore, as per Balochistan Civil Servant (Appointment, Promotion and Transfer) Rules, 2009, transfer/posting comes in the exclusive domain of the Government and the Government is empowered to transfer any Civil Servant from one place to the other in exigency of the service and public interest (2005 SCMR 442). Furthermore, it is a settled principle of law that a Civil Servant cannot claim posting at a particular station or at a place of his own choice and that to after completion of tenure of two years as provided under Section 6 of Gwadar Industrial Estates Development 'Authority Act, 2009. The Hon'ble Supreme Court of Pakistan in reported Judgment 1999 PLC (C.S) 497 has observed as under: "Civil Servant on basis of standing instruction had challenged his transfer from one place of working to another contending that according to standing instruction, period of three years has been prescribed as a maximum period of tenure and that Administrative Agencies were debarred from ordering his transfer prior to expiry of that period. Standing structure did not display any bar or embargo for transferring Civil Servant within a period of three years, but same had laid down a procedure that in normal situation an employee could be allowed a stay of three years at a station and that in public interest such transfer could be affected with the approval or intimation of competent authority. Standing structure, thus, did not vest Civil Servant with absolute right to stay at a station for three years. Even otherwise, standing instructions were in advisory capacity prescribing internal procedure and such an advisory direction could not be made basis for filing appeal especially when Civil Servant was likely to be posted anywhere against any existing vacancy equivalent to his post."##TE## Learned counsel for Respondent No. 5 stated that the Respondent No. 5 is regular officer of BPS-19 and after fulfilling the all codal formalities he was promoted to the rank of BPS-19 and also stated that the reliance of status of his brother have no relevancy with the instant matter, because each and every matter be decided on its own merits and prayed that the instant appeal should have been dismissed in limine and even at this stage is not maintainable. Learned State Counsel contended that appellant was required to file Departmental appeal before the Hon'ble Chief Minister Balochistan being competent authority/review authority as the transfer/posting order was issued with the approval of the Chief Minister Balochistan but herein the core appeal filed by appellant to Chief Secretary Balochistan, which is as prescribed. Lastly, learned State Counsel prayed for dismissal of appeal.
5. We have heard valuable arguments of learned counsels for the appellant and Respondent No. 5 as well as the learned AAG and legal Advisor of GIEDA and have gone through the record.
6 We have gone through the case laws relied by learned counsel for appellant and GIEDA Act and Rules framed therein we are of the considered view that there is no relevancy or nexus of the above mentioned citations with the case in hand as referred by the learned counsel for appellant and the facts and circumstances of the cases relied are quite different from the case in hand.
7. From the above discussion, it can safely be assumed that in the instant case the appellant was initially appointed as Principal BPS-17 in Labour Education of Worker Welfare Board and thereafter promoted to the rank of PS-18 and BPS-19. On 13-02-2019, the appellant was transferred and posted as Acting Managing Director GIEDA against an existing vacancy. While it is pertinent to mention here that the Gawadar Industrial Estate Development Authority (GIEDA) Act, 2019 Sec 6(1) says: "6. (1) The Managing Director shall be the Principal Executive Officer of the Authority and shall be appointed by the Government for a period of two years on such terms and conditions as may be determined by the Government.
(2) The Managing Director shall:
(a) be a whole time officer of the Authority,
(b) perform such duties as may be prescribed or as the Board may assign to him;
(c) On the expiry of his term of office continue to perform his functions for a period of three months or till such time as his successor is appointed, whichever is earlier:
(d) Receive such salary and allowances as Government may determine:
(e) On appointment, notify to Government the movable and immoveable assets held by him including shares, etc. and also obtain prior permission of the Government before acquiring any property and shares during the term. of his office;
(f) Divest himself of any directorship of, or other interest held by him in any other corporation, company or concern, and
(g) Not become a Director of or acquire any shares or other interest in any corporation, company or concern during his terms of office: Provided that nothing in this clause shall prevent the Managing Director from holding shares in any public company acquired by him before his appointment as such, but he shall declare such shares to Government at the time of his appointment
(3) Nothing in this section shall preclude the Government from extending the term of the office of any Managing Director for such period as Government may determine.
7. Term of office of Nominated Directors. (1) Subject to the provisions of Sections 8, 9 and 10, a Director nominated under clause (VI) of sub-section (1) of Section 5 shall hold office for such term not exceeding two yours, so may be determined by the Government, and may be nominated thereafter for a further term or terms of such duration as Government may in nominating thereto, determine.
(2) Expect the Managing Director, the Chairman and other Directors of the Board shall not be entitled to any remuneration."
While, herein the case in hand, the appellant from the day of posting since 2019 till 02-04-2023 enjoying the position of Managing Director (GIEDA) and never ever transferred from his position and term of two years provided under Section 6 of GIEDA Act has been completed and the benefits of Section 6(3) was also extended in favour of appellant, it means posted for two terms totally four years, therefore, the appellant who himself stated in Para 3 of appeal after issuing of the charge of aforesaid post appellant has streamlined the authority and framed the Service Rules, 2014, called the Gawadar Industrial Estate Development Authority (Employee's Service) Rules, 2014 and it shall apply to all the employees in the service of the authority whose pays are debatable to the funds of the authority, the post of Managing Director as mentioned in Rules 2014 framed under Section 26, sub-sections (1) and (2) of the Gawadar Industrial Estate Development Authority: S.No.Nomenclature of the post/with Basic Pay ScaleMinimum Qualification prescribed for appointed by initial recruitmentMethod of recruitment 1 2 3 4 PART-1 (GENERAL CADRE)
(BPS-16 and above)
1 Managing Director (B- 20) As per Section 6 of the Act.
As per Rules, 2014 GIEDA the post of Managing Director is BPS-20 But the appellant as well as Respondent No. 5 both are of BPS-19 it means both are not eligible and suitable officers to be posted as Managing Director of GIEDA.
8. Before proceeding further, perusal of record reveals that, it is necessary to determine the post against which rival claims has been made by the parities in the case in hand it is apparent on the face of record that the nomenclature of the post has been shown as Managing Director GIEDA, while the same has been reflected with the Act, 2009 and Rules, 2014 GIEDA the post is B-20 and the appellant was posted BPS-19 as junior officer against the Senior Post and also completed two terms of service till the notification impugned dated 02-04-2023. Needless to observe here that it has been held time and again by the Hon'ble Supreme Court junior officer shall not be posted against the senior post, therefore, it is clear violation of principle laid down in Judgments passed by the Apex Court as well passed by this Tribunal in member of cases Khan Mohammad, (2018 SCMR 1411) 2018 PLC (CS) 893 Munir Ahmed Kakar (PLD 2020 Bln 58) and the Regulations/Instructions vide Circular dated 09-07-2018 issued by the Government in light of guideline/principle of above referred Judgments. In the aforesaid administrative Circular, regarding posting of a junior officer against senior post, following direction was issued:
2. viii. In exceptional cases where posting of a junior against a senior post or premature transfer is inevitable, prior endorsement from a committee led by the Chief Secretary with ACS (Dev), SMBR Secretary S&GAD and Law Department as Members shall be mandatory. The committee members shall be personally responsible about the soundness of the proposal. Proper record of the deliberations shall be maintained and produced as and when required."
There is another Notification dated 21.03.2019 in pursuance whereof powers of posting/transfer of civil servants were delegated to designated authorities subject to conditions inter alia that Officers have completed their normal tenure and transfer/postings were not in violation of the orders passed by the superior Courts.
A Committee was also constituted vide Notification dated 26.9.2020 to record recommendations for transfer before completion of normal tenure and Terms of Reference included inter cilia that transfer/postings were not in violation of the orders passed by the superior Courts.
9. Thus, it can be safely concluded that in fact departmental authorities are adamant to disobey binding principles of law enunciated by honourable superior Court, discussed hereinbefore, and there is a need to pull them up and compel to obey the mandate which the legislature has issued and principles of law enunciated by honourable Supreme Court. Where, honourable Supreme Court deliberately and with the intention of settling law, pronounces upon a question, such pronouncement is the law declared by it within the meaning of Article 189 of the Constitution and it is not understood as to why or how the Executive or other Courts in. Pakistan can turn a deaf ear to the judgments or even observations of the Supreme Court. Law declared by honourable Supreme Court becomes law of the land and is binding not only on all Courts In Pakistan but also on all functionaries of Government. Even obiter dictum of the honourable Supreme Court, due to the highest place which the Court holds in hierarchy of Courts in the country, enjoy a highly respected position as if it contains a definite expression of the Court's view on a legal principle, or the meaning of law.
10. The consultative effect of the aforesaid discussion lead us to an irresistible conclusion that the case of appellant does not supported the grievances as placed before us through instant appeal, we therefore, dismiss the appeal and direct the Government of Balochistan to post eligible/suitable officer of (B-20), as Managing Director of GIEDA belonging to Principal Executive Officer of the Authority within a period of fifteen (16) days from the receipt of copy of this Judgment. It would be imperative to mention here that the post in question is meant for an officer of (B-20), whereas, the appellant and Respondent No. 5 both are in (B-19). The interim relief granted in favour of appellant vide interim Order dated 04-05-2023, is hereby recalled.
There shall be no order as to costs: Appeal stands dismissed on above terms.