The petitioner was posted as Sub-Registrar, Rawalpindi, on 12-9-1996 by order of the Member, Board of Revenue, Punjab, Lahore. By the impugned order, dated 11th of December, 1996, the petitioner was transferred by the Commissioner, Rawalpindi Division, Rawalpindi and was directed to report to the Board of Revenue.
2. The learned counsel for the petitioner has contended that the Commissioner was not empowered to transfer the petitioner and to direct him to report the Board of Revenue. He placed reliance on the Punjab Revenue Department (Revenue Administration Post) Rules, 1990, under which the Tehsildar could only be transferred by the Administrative Secretary, Board of Revenue and not by the Commissioner. It is also argued that it had hardly taken three months at Rawalpindi that the impugned order of transfer of petitioner was passed by the Commissioner, Rawalpindi without there being any further posting order. The learned counsel has relied judgments in the cases of Zahid Akhtar. v. The Secretary Local Government (PLD 1995 SC 530), Syed Mazhar Hussain Bukhari v. Secretary to Government of Punjab (1996 SCMR 59) and an unreported case Ikhlaq Ahmad. v. Secretary, Government of Punjab (C.P. No. 1196 of 1996) decided by the Hon'ble Supreme Court of Pakistan, wherein certain principles of law in regard to, the transfer orders were laid down. The learned counsel also relied on the case of Abdur Razzaq Patwari v. Assistant Commissioner (1996 PLC (C.S.) 309) by a Single Judge of this Court. The learned counsel further argued that Article 212 of the Constitution has no application in the peculiar facts and circumstances of this case.
3. The learned Assistant Advocate-General has stated that in view of the bar contained in Article 212 of the Constitution, the present petition under Article 199 is not maintainable. He has further stated that the power to transfer a Tehsildar has already been delegated to the Commissioner by the Government of Punjab and the impugned transfer orders have been issued strictly in accordance with law. It is argued that the petitioner has liberty to file appeal before the Board of Revenue against the transfer order passed on administrative grounds which did not call for any interference in exercise of extraordinary jurisdiction of this Court.
4. Ordinarily the matter of posting and transfer is to be at with the competent Departmental Authorities and is not to be made subject of a judicial review under Article 199 of the Constitution. Moreover, the transfer order falls within the domain of appropriate forum i.e. Service Tribunal under Article 212 of the Constitution as held in the case of Muhammad Asif v. Secretary to Government of the Punjab (1990 PLC (C.S.) 257). Even otherwise as held by the Supreme Court of Pakistan in Syed Afzal Ahmad Haider v. Secretary, Defence Production Division, Ministry of Defence (1991 SCMR 477), Allah Rakha v. Government of the Punjab and others (1980 PLC (C.S.)
97) the posting or transfer is an administrative matter made in the exigencies of service, to which a civil servant may not lawfully object in view of section 9 of the Punjab Civil Servants Act, 1974.
5. However, there is another important aspect of the matter in this case, which needs consideration. The petitioner was transferred by the impugned order of Commissioner, but he was left without any posting. In my view the right to posting is a valuable right and is implicit in Article 3 of the Constitution based on the fundamental principle, from each according to his ability. Even under Article 2(A) that is to say the Objectives Resolution, the right of social justice has been guaranteed.
6. The Hon'ble Supreme Court of Pakistan in the case of Pakistan and others v. Public at Large .And others (PLD 1987 Supreme Court 304) has authoritatively held that the right to work is very valuable right which cannot be denied. The Supreme Court of India in a similar case of P.K. Chinnasamy v. Government of Tamil Nadu and others (AIR 1988 Supreme Court 78) took the view that: "In a democratic polity as ours, the bureaucracy work as the pivot for running the administration. So far as the State is concerned, matters of policy and the ultimate responsibility for running the administration is obviously of the apex body---the council of Ministers and the Executive Head---the Governor. It cannot be lost sight of that every public officer is a trustee and in respect of the office he holds and the salary and other benefits which he draws, he is obliged to render appropriate service to the State. The scheme postulates that every public officer has to be given some posting commensurate to his status and circumstances should be so as to render commensurate service in lieu of the benefits received by him from the State. If an officer does not behave as required of him under the law he is certainly liable to be punished in accordance with law but it would ordinarily not be appropriate to continue an officer against a post and provide no work to him and yet pay him out of the Consolidated Fund." (Para. 4).
"We direct the respondent-Government of Tamil Nadu to give an appropriate posting to the appellant within one month from today and once he is given such posting, he must be assigned normal official work to be discharged by him as contemplated under the rules and procedure in respect of the post the appellant is assigned. We hope and trust that the appellant shall be given a proper assignment commensurate to his position in the service and the State Government in its action would exhibit no bias or mala fides. We make it clear that we have not examined the correctness of such allegations as we are sure given an opportunity the State Government would exhibit ideal conduct as an employer and establish by its conduct that the allegations were baseless." (Para. 5)
7. The Rt. Hon. Lord Denning (formerly Master of the Rolls) in his famous book titled "The Discipline of Law"
(page 188) has also explained the concept of obligation to provide work as follows:-- "The latest way in Which the law about inducing a breach of contract may be extended is by stretching the terms of the contract of employment--so as to include by implication an obligation by the employer to provide work. "
In the case of Langston v. AUEW (1974) WLR 185 Lord Denning expressed himself as follows:-- "We have repeatedly said in this Court that a man has a right to work which the Courts will protect. See Nagle v.
Fielden (1966) 2 QB 633 and Hill v. C.A. Parsons & Co. Ltd. (1972) Ch. 305.
In these days an employer, when employing skilled man, is bound to provide him with work. By which I mean that the man should be given the opportunity of doing his work when it is available and is ready and willing to do it. A skilled man takes a pride in his work. He does not do it merely to earn money. He does it so as to make his contribution' to the well-being of all. He does it so as to keep himself busy, and not idle. To my mind, therefore, it is arguable that in those days a man has, by reason of implication in the contract, a right to work. That is, he has a right to have the opportunity of doing his work when it is there to be done. "
8. I may usefully reproduce some of the extracts from an address delivered by late Mr. Justice M.R. Kayani on 17th March, 1958 at the C.S.P. Association Dinner as published in his Book titled "Not the Whole Truth" at page 46 with caption "the Officer on Special Duty" as under: -- "O.S.D. Stands for 'Officer on Special Duty', a designation which came to be reserved for officers who were on the wrong side of the Ministry. There was no special duty to perform and the object was to place them in unimportant positions.
This year's special text was an institution called the O.S.D., a sort of D.D.T. Which disinfects the mind, a superlative class of C.S.P where you get full pay without doing any work.
But the modern O.S.D. Is not so ingenious. For to months and a half he sits idle, not knowing what to do with his three thousand a month, over burdened with three hundred by way of O.S.D. Allowance. This three hundred is the straw that breaks the camel's back, because in three months he becomes a veritable camel, groaning and grumbling. Sir, I went to visit an O.S.D. On a Friday afternoon in January and found him sleeping in a cold bed room. He had forgotten the use of the sun, in whose glorious warmth the happier people dose away their Friday afternoons. My heart went out to him. Tears came into my eyes. I did not wake him. But I did the best thing: I prayed for him. Sir, Prayer is the sincerest desire of the soul, and soon thereafter, he got a Stenographer. This is a great achievement, that an O.S.D. Should be able to get a Stenographer after to and a half months, even though he has become a camel in the meantime, and I am convinced that the West Pakistan Government could not have accomplished it without my prayer. In the case of to other officers, whose I forgot to pray, they were compelled by their circumstances to take leave. "
9. There is a common practice prevalent both in Federal and Provincial Governments to keep the civil servants without posting as a measure of punishment for considerably long periods by making them O.S.Ds., etc. Without getting normal work which is a fraud on the statute and abuse of C executive power. The same cannot be countenanced and is required to be discontinued by the Government forthwith.
10. In my view, a civil servant who is transferred has a legal right to be posted to a position commensurate to his rank, status with responsibilities without unnecessary delay and in any case not later than thirty days of his transfer. This right of the civil servant which is guaranteed by the Constitution and the law cannot be denied to him. There might be exceptional cases such as where a civil servant is under suspension facing a disciplinary action or undergoing a training where he may not be possibly given a particular posting. Otherwise, every civil servant will have to be placed with proper posting and assignment of duties where he can work and .Render valuable service to the State.
11. In this view of the matter, this writ petition is disposed of with the direction that the Board of Revenue, Punjab, shall, if it considers necessary, pass a fresh order of posting and transfer of the petitioner, within a period of thirty days from today.
12. Let a copy of this order be sent to the Chief Secretary, Government of the Punjab, Lahore, who shall at, and issue necessary instructions within three weeks to all concerned, in the light thereof.