' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for special leave to appeal arises from the judgment of the Lahore High Court, Multan Bench, Multan, dated 15-6-1995 whereby the Constitutional petition filed by the petitioner bringing into challenge his transfer order was dismissed in liming.
2. The petitioner, an employee of the Government of Punjab in the Local Government and Rural Development Department (LG and RD) challenged the cancellation of his transfer order dated 2-11- 1994 from Municipal Committee, Burewala to Zila Council, Lodhran, under the extraordinary Constitutional jurisdiction of the High Court, Multan Bench, Multan. A learned Judge in Chamber by order dated 15-6-1995 dismissed the petition in liming 'as devoid of force.'
3. The petitioner, who is serving as an Accountant in LG and RD, was transferred on 29-6-1993 from Municipal Committee, Burewala to Punjab Local Government Board, Lahore (PLGB) wherefrom he was transferred on 16-8-1993 to Zila Council, Bhakkar. On 19-3-1994 he was transferred from Bhakkar to Zila Council, Lodhran. Within four days i,e, on 24-3-1994 in partial modification of LG & RD's order, the petitioner was directed to report to PLGB., Lahore and in his place Rana Khalid Ahmad, respondent No, 3, was posted as Accounts Officer, Zila Council, Lodhran after downgrading the post from BPS-16 to BPS-14 as long as it was held by the latter. On 18-5-1994 the petitioner, who was awaiting posting in the PLGB., was posted as Accounts Officer, Municipal Committee, Cichawatni against a vacant post. On 31-5-1994, he was transferred from Chichawatni to Burewala from where he was again transferred on 13-10-1994 to Zila Council, Lodhran vice Rana Khalil Ahmad, Respondent No, 3, who was to take over at Burewala. On 2-11-1994, the last-mentioned order was cancelled which was challenged before the Lahore High CoFt, Multan Bench, Multan. The argument of Malik Haider Usman, the learned Advocate-General for the Government of Punjab and Mirza Aziz Baig, Legal Advisor to Municipal Committee, Multan, as amicus curiae that transfer being an incidence of service, every civil servant in pursuance of the provisions of section 9 of the Punjab Civil Servants Act, 1973, is liable to serve anywhere within or even beyond the Province, therefore, `no valid grouse can be made in regard thereto' heavily weighted with the learned Judge in Chamber.
The contention raised on behalf of the petitioner, on the contrary, that the innumerable transfer orders having not been passed by the competent authority `by application of its own independent mind' were devoid of lawful authority was, however, repelled saying that 'manifestly the impugned orders were passed by the departmental authorities' and further that 'merely because they had been passed at the behest of a Minister or some political figure would not make any difference' because 'it would still be an order passed by the competent authority' and still 'it would be appealable before the Service Tribunal'. In consequence, the writ petition, as stated earlier, was dismissed in liming.
4. Mr. Mahmood A. Qureshi, learned counsel for the petitioner, took exception to the impugned order passed by the Minister, LG & RD and maintained that he was devoid of any authority in the matters of terms and conditions of service, whereas respondent No, 1 who was competent authority to pass the transfer orders had acted upon directive of the Minister mechanically without applying his independent mind and, therefore, it could not be termed as an order passed with lawful authority. He further urged that eight successive transfer orders of the petitioner from one place to another were violative of the Provincial Transfer Policy which has the force of law. Lastly, the learned counsel submitted that the impugned order being mala fide was of great public importance, therefore, an authoritative pronouncement on the subject would be in the interest of justice.
5. Mr. Tanvir Ahmad Khan and Mr. Zainul Abidin on behalf of respondents Nos. 1 and 2 while Dr. Khalid Ranjha appearing for respondent No, 3 have opposed the petition on the grounds which had found favour with the learned Judge in Chamber.
6. In a recent judgment in Zahid Akhtar v. Government of Punjab and 2 others (PLD 1995 SC 530) this Court had deprecated the repeated transfers of civil servants of different categories in the following terse language:-- "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 expire 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 in charge, 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 demoralizing 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."
' Earlier, Lahore High Court in the precedent case of Mst. Naseem Saddique v. District Education Officer (W), Sahiwal and others (1991 M LD 2214) expressed deep anguish in the transfer matters of civil servants in paragraph No, 17 which is as follows:-- "The transfers of the civil servants are being made by competent authorities frequently and being done without any application of mind and without regard to the principle of administrative necessity at the behest of M.NAs./M.P.As./public representatives. I have noticed that the civil servants working in Education Department are worst hit by these orders especially the female teachers are the casualty. In a number of orders I have noted that the competent authority had incorporated in the order the name of the public representative at whose instance the order has been passed. Such situation is not commendable. The administrative structure and civil servant should be allowed to function within the 4 corners of law unaffected by sidewinds and shocks emanating from political fights and political bickering. It is needless to remind that Governments in our country derive their power from the Constitution which is federal and parliamentary in nature.
Under the Constitution commitment is made to run the country in consonance with the golden principles enshrined in the Holy Qur'an and Sunnah. Our commitment to assure the supremacy of fairness, decency and justice is irrevocable and is mandated in the Constitution. The functions of various organs of the State are enumerated in the Constitution. I am very clear in my, mind that nowhere under our Constitutional dispensation the M.N.As./M.PAs. And public representatives are required to interfere with the working of the Executive. Seen from this perspective the duty is cast upon the competent authorities to resist the evil influences and conduct themselves in accordance with the dictates of the Constitution. The copy of this order be sent to the Chief Secretary, Province of Punjab, Lahore': ' It is highly disquieting to note that notwithstanding the solemn observations made by this Court in the case of Zahid Akhtar supra the concerned quarters, to say the least, have ignored them with unwarranted stubborness and Qbstinacy.
7. The learned counsel for respondents Nos. 1 and 2 also placed reliance .On the operative part of the judgment in Zahid Akhtar's case to contend that the ratio deducible from the impugned judgment of the High Court that writ petition was not maintainable had been approved by this Court and, therefore, it would be appropriate that we also follow the suit and leave the matter to the parties to take it to the Punjab Service Tribunal for adjudication.
8. We have not been persuaded to accept the contention of the learned counsel for respondents Nos. 1 and 2. The directions issued in Zahid Akhtar's case supra are apparently covered under Article 187(1) (2) of the Constitution of Islamic Republic of Pakistan, 1973 and are prima facie enforceable throughout Pakistan. The directions by this Court were not made to be flouted with impunity by the authorities to whom they were issued. They were meant to be adhered to by them in letter and spirit.
9. In the era preceding Zahid Akhtar's case, this Court has not made any such directions in the matter of successive transfers of a civil servant in a short span of time by those who were not competent to do so under the Rules of Business.
10. In the circumstances, leave to appeal is granted to consider: (1) I whether the impugned order of transfer dated 13-10-1994 and subsequent order of cancellation dated 2-11-1994 were passed by the competent authorities; (2) what is the effect of violation of the directions made by this Court in the precedent case of Zahid Akhtar v. Government of Punjab and 2 I B others (PLD 1995 SC 530); and (3) if answer to proposition at (1) be in affirmative, whether the impugned orders have become extraordinary in the light of observations of this Court in Zahid Akhtar's case (PLD 1995 SC 530) and have become coram non judice involving question of jurisdictional defect as settled by this Court in Malik Hayat v. Supreme Appellate Court of Sindh-H at Karachi and others (PLD 1995 SC 505) and, therefore, jurisdiction of this Court is not barred.
11. The appeal is directed to be placed before the Honourable Chief Justice for constituting a larger Bench of more than two Judges to hear it.
CMA 728-L of 1995 in C?SLA No, 835-L of 1995.
' The impugned order dated 2-11-1994 is suspended till further orders.