The petitioner, an employee of the Government of Punjab Local Government and Rural Development Department, challenged his transfer order before the Lahore High Court under Article 199 of the Constitution. The High Court dismissed the petition as not maintainable in view of the bar contained in Article 212. The petitioner sought leave to appeal before the Supreme Court.
The core question was whether the High Court correctly declined jurisdiction under Article 199 in light of Article 212, notwithstanding the petitioner's contention that the transfer orders were malicious, passed by an incompetent authority, and thus coram non judice.
The Supreme Court dismissed the petition as not maintainable. It found that the petitioner was subjected to four successive transfer orders within one month, issued by the Minister incharge rather than the Secretary, who was the competent authority under Rule 21(2) read with Schedule V of the Rules of Business, 1974. These orders bore no nexus with service exigencies and violated the Government's transfer policy.
The Court laid down that transfers must conform to statutory rules and government policy directives; only competent authorities may order transfers; bureaucrats must not comply with illegal or incompetent directions from superiors; and strict adherence to transfer rules prevents manipulation through outside influence.
1. SAIDUZZAMAN SIDDIQUI, J.--The petitioner, an employee of Government of Punjab Local Government and Rural Department LG & RD, challenged his transfer order dated 23-1-1995, from Muzaffargarh, in a Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter to be referred as 'the Constitution' only before the Lahore High Court. A learned Judge in Chamber by order dated 12-2-1995, dismissed the petition as not maintainable, in view of the bar contained in Article 212 of the Constitution. The petitioner is seeking leave to appeal against the above order of the Lahore High Court.
2. Dr. A. Basit, the learned counsel for the petitioner firstly, contended before us that the transfer of a Government servant does not fall within the scope of terms and conditions of the service and as such the bar contained in Article 212 of the Constitution is not applicable to the case of the petitioner. In the alternative, the learned counsel for the petitioner very vehemently contended that the transfer order of the petitioner being malicious and having been passed by an authority not competent under the law, for objects wholly alien to the Punjab Civil Servants Act (hereinafter to be referred as 'the Act' only) was coram non judice and as such it could be challenged before the High Court in a Constitutional petition under Article 199 of the Constitution notwithstanding the bar contemplated in Article 212 of the Constitution. In support of his contention, the learned counsel for the petitioner relied on the case of Pir Sabir Shah v. Government of N.-W.F.P. PLD 1994 SC 738.
3. Mr Farooq Bedar, the learned Additional Advocate-General, Punjab, though opposed the grant of leave in the petition on the ground of its incompetency, but on our query, frankly stated that 4 orders of transfer of petitioner passed in quick succession within a period of less than a month were not only unusual but also offended against the declared policy of Government relating to the transfer of Government servants.
4. On a tentative examination of the material produced before us in the case, we also felt that the manner in which successive transfer orders of the petitioner were passed in the case, supported the contention of the petitioner that these transfer orders were not based on any exigency of service but were for reasons which bore no nexus with the spirit and object of the Rules governing the transfer of a Government servant. We, accordingly, directed the learned Addl. A.-G. To seek instructions from the authorities concerned and place before us full facts concerning frequent transfers of the petitioner between the period from 4-7-1994 to 23-1-1995. The learned Addl. A.-G. In response to our direction candidly submitted before us a detailed note today, containing the facts relating to the transfer of petitioner between the period from 4-7-1994 to 23-1-1995. After going through this note, we were convinced that the various transfer orders of petitioner passed between the period from 4-7-1994 to 23-1-1995 could not be described/treated as a normal incident of transfer in service but were based on extraneous considerations bearing no nexus with the object and spirit of Rules governing the transfer of Government servants. We, accordingly, further directed the Secretary, Local Government and Rural Department, Punjab, to appear before us in the case at 11-30 a.m. And state the reasons behind this unusual and frequent transfer of the petitioner. Mr. Shafqat Ezdi Shah, Secretary, LG & RD, accordingly, appeared before us at 11-30 a.m. And stated that he had no role in the successive transfers of the petitioner in the case. According to Mr. Shafqat Ezdi Shah, all the orders for transfer of the petitioner in the case were passed by the Minister incharge of his department which he was bound to comply. The inherent helplessness noticed be us in the above statement of the Secretary, LG & RD was not only shocking but also disappointing. We need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence.
5. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non: compliance would have exposed the concerned Government servant to the risk of disciplinary action.
6. In the case before us, the Minister of LG & RD directed Secretary, LG & RD on 3-8-1994 that Sh. Ehsan Elahi, Assistant Engineer, LG & RD, Lodhran, be transferred and posted as A.E., Faisalabad vice Sh.
7. Zahid Akhtar (petitioner) who was transferred from Faisalabad and posted as A.E., Kasur. Copy of the order of Minister was endorsed to Nawab Sher Waseer M.P.A., Hail Muhammad Ismail M.PA. And Mr.Wasee Zafar M.PA.. Secretary LG & RD complied with above order of Minister LG & RD and issued the necessary notification dated 4-8-1994. On 10-8-1994, the Minister LG & RD cancelled the posting of petitioner and allowed Mr. Khalid Mahmood, LCS Engineer, to continue as A.E., Kasur on deputation. Copy of this order was endorsed to, besides the Secretary LG & RD to Rao Abdul Qayyum M.PA. PP.151 and Sardar Hussain Dogar, M.P.A. PP.146. The Secretary LG & RD complied with this order of the Minister on 16-8-1994. On 13-9-1994 the Minister LG & RD was again pleased to direct that the petitioner, who was awaiting posting, be posted as A.E. LG & RD, Faisalabad vice Sh.
8. Ehsan Ellahi, who should report to Government for his further posting. Copy of this order of Minister was endorsed to Secretary LG & RD and Mr. Wasi Zafar, M.PA., Faisalabad. The Secretary LG & RD on 19-9-1994 complied with the order of Hon'ble Minister by issuing order for posting of petitioner as A.E. Faisalabad vice Ehsan Elahi, posted to Narowal against a vacant post. Then came an order from Chief Minister's Secretariat on 5-10-1994, informing Secretary LG & RD that posting of Sh. Ehsan Ellahi as S.D.O. In the Local Government, Faisalabad, has been approved by the Chief Minister. Copy of this letter was endorsed to Minister LG & R.D. Consequent to this order, the Secretary LG & RD recalled his earlier orders dated 19-9-1994 transferring Sh. Ehsan Elahi, from Faisalabad to Narowal, and re-posted him as A.E., Faisalabad. As a result thereof the petitioner, who was posted as A.E., Faisalabad was transferred from there and was directed to report to the LG & RD Department, Government of Punjab. The petitioner thereafter, awaited for his posting until 28-12-1994 when the Hon'ble Minister for LG & RD passed an order for his posting as A.E. LG & RD, Muzaffargarh vice Mr. Abdul Khaliq, who was directed to report to Government for further posting. Copy of this letter was endorsed by the Minister to Malik Bilal Mustafa Khar, M.P.A. PP-213 Muzaffargarh. This order was complied by the Secretary LG & RD on 29-12-1994. The Hon'ble Minister LG & RD on 9-1-1995 cancelled the posting order of petitioner issued by Secretary LG & RD in compliance of his orders dated 29-12-1994 and directed that Abdul Khaliq should continue as A.E. Muzaffargarh. Copy of this order of the Minister was endorsed to Malik Bilal Mustafa Khar, M.PA., Muzaffargarh. The Secretary LG & RD immediately complied with the above directions of his Minister by issuing another order dated 10-1-1995 cancelling the posting order of petitioner dated 29-12-1994. On 16-1-1995, the Hon'ble Minister LG & RD again issued an order directing Secretary LG & RD to post the petitioner as A.E. LG & RD, Muzaffargarh vice Abdul Khaliq, A.E., who was directed to report to Government for further posting. Copy of this order of Minister was endorsed to Malik Abdul Rehman Khar, M.PA., Muzaffargarh. No sooner the above order of Minister LG & RD was implemented by the Secretary by issuing the posting order dated 18-1-1995, another order was passed by the Hon'ble Minister LG & RD on 21-1-1995 cancelling the order of Secretary LG & RD dated 18-1-1995 which he had issued in compliance with the earlier order of Minister dated 16-1-1995. The Secretary LG & RD dutifully complied with the orders of the Minister and issued another order dated 23-1-1995 cancelling earlier posting of the petitioner.
9. The narration of the above facts makes it abundantly clear that none of the orders in the case passed by the Hon'ble Minister, transferring or cancelling the posting of the petitioner was motivated by the exigencies of the service. The endorsements on the letters of the Minister LG & RD produced before us, sufficiently unveiled the forces at work in the background of these transfers. It required no intelligence to conclude that these transfer orders were passed by the Hon'ble Minister for reasons which has no bearing either with the exigencies of the service or with the good administration of the department. The scenario looked more like a battle of wits than an ordinary case of transfer of a Government servant, as every time the petitioner was able to get a posting order for a particular station, the incumbent already working there, was able to frustrate it, perhaps with his better approach or connections, leaving the petitioner in lurch. This ugly situation could be avoided easily by following the existing policy and rules in this regard. The Government of Punjab as late as 1:-3-1980 issued Memorandum No,S.O. (Coord.) 1-13/79 laying down the broad guidelines for transfer of Government servants. Paragraph 4 of this policy decision lays down amongst other, the following principles for transfer of Government servants:-- "4. Transfers of officers and staff shall be made by the authorities specified in Schedule V to the Punjab Government Rules of Business, 1974, and the Delegation of Powers Rules pertaining to different Departments but Services, General Administration and Information Department shall be consulted, if it is proposed to transfer the holder of a tenure post before the completion of his tenure or extend the period of his tenure. Before completion of tenure, every officer may be asked to indicate four places of his choice for posting.
10. No transfers shall normally be made except under the following circumstances:--
(a) On completion of tenure/prescribed stay at hard stations.
(b) On completion of 3 years' stay at a particular station in other cases.
(c) On compassionate grounds.
(d) On disciplinary grounds.
(e) On promotion/demotion.
(f) Administrative requirements.
(g) No officer/official shall be transferred, who is under special report nor shall earned leave be granted to him except by the order of the Authority, which placed him under such report.
11. Transfer before the completion of the period of tenure should be ordered only if the competent Authority is satisfied that:--
(a) The transfer involves appointment to higher service or a post carrying higher emoluments.
(b) The transfer is being made to a post for which the officer has special aptitude, qualifications or experience.
(c) The officer has proved unsuitable in the post from which he is being transferred
(d) The Officer holding a lien on the post, has become available .
(e) The transfer is on compassionate grounds.
12. ' No request for transfer of an officer on complaint or unfitness to hold a post shall be entertained unless the officer has spent at least three months on his present assignment and a special report has been initiated on his performance."
13. ' The spirit behind the transfer policy was stated in the above policy decision, as follows:-- "The policy of postings should be designed so as to ensure stability in appointments to encourage professionalism by recognizing and promoting merit, while providing an allround experience to the individual officers. In order to avoid stagnation in performance and ideas and to provide dynamic administration, repeated appointments to the same type of job need to be avoided unless in some special cases, specialization is desired. The transfer policy is to be guided foremost by the service of public interest and the individual's interest is to be integrated therewith as far as possible for ensuring greater harmony and efficiency. Important assignments need to be filled in by those officers, who have good record of service so that they may develop their talent and may make maximum contribution to the public welfare. In cases, where officers show certain weaknesses in professional and character traits, they may be so positioned as to be amendable to direction, advice and guidance."
14. ' The Rules of Business (Provincial Government) 1974, framed under Article 139 of the Constitution, in respect of Province of Punjab, lay down the functions of a Provincial Minister, incharge of an administrative department, as follows:- "6. Function of the Minister.--A minister shall--
(a) be responsible for policy matters and for the conduct of business of his Department: ' Provided that in important political, economic or administrative matters, the Minister shall consult the Chief Minister;
(b) submit cases to the Chief Minister as required by the provisions of these rules;
(c) keep the Chief Minister informed of any important case disposed of by him without reference to the Chief Minister; and
(d) conduct the business relating to his Department in the Assembly."
15. ' Rule 21 of the Rules of Business, ibid, which deals with the appointment, posting, promotion and transfer of a Government servant reads as follows:-- "21. Appointments postings. Promotion and transfers.--(1) Approval of the Chief Minister will be obtained before issue of orders in cases relating to appointments, promotions, postings and transfers to posts mentioned in Schedule IV.
(2) Transfers of civil servants shown in column 1 of Schedule V shall be made by the Authority shown against each in column 2 thereof.
(3) The Services, General Administration and Information Department shall be consulted if it is proposed to--
(a) transfer the holder of a tenure post before the completion of tenure or extend the period of his tenure; and
(b) require an officer to hold charge of more than one post for a period exceeding four months.
(4) Tenure: The normal tenure of posts specified in column 1 of the Schedule VI shall be as shown against such posts in column 2 thereof."
16. Schedule V of the Rules of Business, ibid, which is relevant in the present case reads as follows:-- "SCHEDULE V (See Rule 21(2)
17. Authorities competent to make transfers to and from the Secretariat
(i) Officers of All Pakistan service. Services General Administration and Information Department in consultation with the Department concerned.
(ii) Heads of Attached Departments equivalent posts. Ditto (iii)Heads of Regional Officers. Ditto (iv)Officers shown in the Schedule IV other than those specified above in the Secretariat.
(v) Secretaries Service General Administration and Information Department (vi)Section Officer/Under sEcretaries and other officers of equivalent rank--
(a) Within the same Department Secretary
(b) To and from an attached Department Services General Administration and Information Department.
(c) Within the Secretariat from one Department to another.Ditto (vii)Officials below the rank of Section Officers--
(a) Within the same Department Secretary
(b) To and from and Attached Department Regional OfficeService General Administration and Information department.
(c) Within the Secretariat from one Department to another.Ditto.
18. A reading of Rule 21(2) with Schedule V of the Rules of Business ibid, makes it clear that the transfer of a Section Officer/Under-Secretaries and other officers of equivalent rank within the department is to be done by the Secretary of that department. Rule 21 of the Rules of Business, which deals with power of posting, promotion and transfer of Government servants does not contemplate exercise of these powers by the Minister. The normal period of posting of a Government servant at a station, according to the above-referred policy decision of the Government, is 3 years, which has to be followed in the ordinary circumstances, unless for reasons of exigencies of services mentioned in the aforesaid policy of Government, a transfer before expiry of 3 years' period becomes necessary in the opinion of competent Authority. The transfer orders in the present case, therefore, could neither be justified on the plane of policy directive of Government referred to above, nor they were sustainable on the language of Rule 21(2) read with Schedule V of the Rules of Business, ibid. We are in no doubt that if the transfer orders in the case before us would have been made in accordance with the policy directives of the Government referred to above and power was exercised by the competent Authority as contemplated by Rule 21(2) read with Schedule V of the Rules of Business, ibid, there would have been no room for manoeuvring by the officers affected by such transfer. The fact that the transfers were made in violation of policy directive of the Government, which has the status of a Rule, and provisions of Rule 21(2) ibid, were not followed strictly, opened the door for the Government servant concerned to bring in outside influences to obtain the desired transfers. We are also sorry to note that the Secretary LG & RD, neither resisted these unethical and undesirable moves of his subordinates nor he pointed out to the Hon'ble Minister incharge, that the transfer orders made by him from time to time in respect of various officers of his department were neither in conformity with the declared policy of. Government nor these transfer orders conform to the provisions of Rule 21(2) of the Rules of Business, ibid. It was the duty of the Secretary LG & RD to have pointed out to the Minister concerned the extent of his authority in such matter, besides bringing to his notice that such frequent transfer of a Government servant could neither be justified as the exigencies of service nor it could be described in the public interest. We are constrained to observe that such unconcerned and lukewarm attitude on the part of Head of a Government Department is not expected to promote discipline or efficiency in the department. On the contrary such attitude may have a demoralising effect on his subordinates encouraging them to seek intervention and favours of outside agencies, which may ultimately adversely affect the overall discipline and efficiency in the department. We, therefore, expect that the guidelines mentioned in the policy directives of the Government referred to above and the provisions of Rule 21 of the Rules of Business, ibid, will be kept in view by all concerned while dealing with the transfers of Government servants. The office is directed to send a copy of this judgment to the Government of Punjab for circulating it to all its departments, for future guidance. With these observations, this petition stands dismissed as not maintainable.
…and 208 more citing cases