The appellant Abdul Moeen Chishti had, through the instant appeal, challenged the impugned order, dated 23-11-1994 (Annexure I) whereby the transfer of the appellant from Kot Sher Muhammad Section to Lodhranwala Section of Sadiqia Division vide order, dated 6-11-1994 was revived. Before filing the instant appeal, the appellant of course exhausted the departmental remedy of making a representation against the transfer which was denied to him and his representation was rejected by 'the respondents 1 and 2 on 12-12-1994 and 22-12-1994 vide letters at Annexbres 'K and M'.
2. Learned counsel states that during the period from 13-6-1991 to 14-4-1994, the appellant was subjected to frequent transfer to the extent that he was not allowed to complete his tenure at any one of the places of his posting during the said period. Finally, he was posted at Kot Sher Muhammad on 14-4-1994 and within 7 months of his posting at that place, he was again transferred to Lodhranwala. These orders were cancelled vide order, dated 22-11-1994, but these were revived against vide order dated 23-11-1994 directing him to handover the charge from Kot Sher Muhammad and to report for duty to Lodhranwala. The departmental appeal filed by the appellant against his transfer from Kot Sher Muhammad was rejected by the Superintending Engineer, Bahawalnagar Circle i.e. Respondent No. 2 vide his letter, dated 12-12-1994. His appeal was eventually rejected by the Chief Engineer vide his letter dated 22-12-1994. Learned counsel contends that the appellant could not have been transferred from Kot Sher Muhammad before he had completed his tenure at that place particularly when the respondent Department had already imposed ban on posting and transfer of civil servants. The learned counsel urges that since the transfer of the appellant was ordered in contravention of the Government Transfer Policy, the impugned orders were fit to be set aside.
3. The learned District Attorney relies on the written objections filed by the respondent No. 2 to say that actually the respondent No. 3 namely Muhammad Siddique, Sub-Engineer, Lodhranwala Section of Sadiqia Division, Bahawalnagar was transferred on the orders of the Minister for Irrigation and Power, on the application of the said respondent. The learned District Attorney, therefore, controverts the argument that the transfer of the appellant had been ordered on political grounds.
His view is that in fact the appellant was transferred on the recommendations made by the XEN., Hakra Canal Division, Bahawalnagar in public interest.
4. The learned counsel for the appellant, on the other hand, refers to para. 6 of the written objections filed by the respondent No. 2 whereby the said respondent had admitted that the appellant had served in the present Section for 7 months only when he was transferred on the order of the Minister for Irrigation and Power in view of the application of the respondent No. 3.
5. The learned District Attorney further maintains that according to section 9 of the Punjab Civil Servants Act, 1974, the appellant was "liable to serve anywhere within or outside the Province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a Local Authority or a Corporation or a Body set up or established by any such Government".
Learned District Attorney refers to the proviso below section 9 of the aforesaid Act to say that the appellant could have challenged the order of his transfer only if his terms and conditions of service on the new post had been varied to his disadvantage. Learned District Attorney, therefore, maintains that the appellant could have been transferred and posted anywhere even before the expiry of the normal tenure of 3 years in public interest. Learned District Attorney accordingly urges that the appeal is fit to be dismissed.
6. Be that as it may, the appellant was transferred after 7 months when his transfer was not actually due. I agree with the view that under section 9 of the aforesaid Act, Government was vested with powers to transfer a civil servant from a post to another post under the Provincial Government or the Federal Government or to a Corporation without changing his terms and conditions of service in public interest. However, such powers must be exercised with utmost caution and sense of justice. Judicial scrutiny, therefore demands that we must carefully examine the circumstances in which such vast powers were exercised. The respondent department must justify its action to absolve itself of the charge that the transfer was ordered when it was not mature. It has particularly to be seen as to whether the exigencies of a given situation demanded such transfer. The transfer of a civil servant could not be and should not be ordered before he completes his normal tenure merely because another civil servant is keen for posting at a particular place. Such a replacement could not be justified on any ground whatsoever. The powers vested in Government should not in any case be exercised arbitrarily and capriciously. The written objections filed by the respondents Nos. 1 and 2 (i.e. The Chief Engineer and Superintending Engineer) clearly show political interference, which resulted in the instant transfer.
7. In view of the foregoing discussion and the fact that the appellant was transferred before completing his tenure, I accept the appeal, set aside the impugned orders and direct that the appellant shall complete iris normal tenure of posting at his present place of posting viz. Kot Sher Muhammad.
8.The parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.