IFTIKHAR MUHAMMAD CHAUDHRY, C.J. -- In this Constitutional petition following relief has been claimed:- "It is accordingly prayed that this honourable Court may be pleased to:-
(i) To declare that the order dated 15.6.1998 (Annex-A) as to the petitioner's promotion and posting as Acting Deputy Director, Animal Health, Loralai, was validly issued and continues to be effective and operative;
(ii) To direct the Department that the aforesaid Order be implemented;
(iii) To declare that orders dated 27.7.1998 and 22.8.1998 are without lawful authority and of no legal effect, as regards the petitioner;
(iv) To declare that order dated 8.10.1998 ((Annex-D) is without lawful authority and of no- legal effect, as it relates to the petitioner;
(v) To set aside the aforesaid order dated 8.10.1998;
(vi) To direct the Department not to subject the petitioner to any further transfer except only in public interest or exigencies of service by a reasoned, speaking order;
(vii) Grant any other relief found to be in the justice of the matter".
2. Briefly stating facts of the case are that petitioner being Manager .Government Dairy Farm at Loralai (B-17) was transferred/posted as Acting Deputy Director Animal Health Loralai on 15.6.1998 but after about 1-1/4 month again he was transferred/posted on 27.7.1998 as Assistant Director Live Stock Panjgoor. But unfortunately before this order could have been implemented again on 22.8.1998 he was transferred as Manager Government Poultry Farm Loralai. Surprisingly by means of 4th notification dated 8.10.1998 petitioner was once again transferred as Assistant Director Live Stock Panjgoor from the post of Manager Government Poultry Farm Loralai. It is to be noted that the petitioner filed appeals to the Secretary Government of Balochistan Live Stock and Dairy Development Department Balochistan on 5.8.1998 and 20.8.1998 as well as to the Chief Minister Government of Balochistan on 1.9.1998. In the last mentioned appeal. It was pointed out by the petitioner that he has been transferred to Panjgoor without any TA/DA as per rules. It is his case that he being a Senior Officer of the Department was promoted as Acting Deputy Director which was quite understandable, but his demotion and transfer without TA/DA was not understandable for him. Moreover his to transfers in one month were quite, unjustified, therefore, he requested that his transfer and demotion may kindly be cancelled. It appears that no relief was granted to him, as such on 23.10.1998 he filed instant petition.
3. The Secretary Live Stock and Dairy Development Department Government of Balochistan, Quetta filed parawise comments and stated that transfer orders were issued on the directives of the Minister Live Stock who was not happy with the performance of the Officer as Acting Deputy Director Loralai and had used political influence to get him posted back to Loralai in his absence. It was also emphasised that since Minister is empowered for postings/transfers under the rules of business and the transfer orders were issued accordingly as he was not reverted but posted as Assistant Director Panjgoor in conformity with the seniority, therefore, request was made for rejection of the petition.
4. Raja M. Afsar learned counsel contended that frequent transfers/postings of the petitioner from one post to the other and from the station to the other station are based on mala fides because there is absolutely no allegation against the petitioner that he is inefficient or not capable to perform his duties nor there is any allegation of misconduct or corruption; as such without allowing him to complete the tenure it was highly unjustifiable to transfer him from one place to the other place on account of which not only petitioner is suffering but his whole family is disturbed, therefore, keeping in view these facts writ be issued as prayed for.
5. On the other had Malik Sikandar Khan learned Advocate General stated that petition is not competent under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and the petitioner has a remedy before the Service Tribunal against his impugned transfer vide notification dated 8.10.1998. Learned Advocate General also emphasised that under Rule 7-A of the Balochistan Civil Servants (Appointment, Promotion & Transfer) Rules, 1979 the Minister In-charge of the Department is competent to transfer an Officer in BPS-18 and below.
6. We have heard parties counsel carefully at length and also perused the Rules of Business of Government of Balochistan, 1976 as well as Balochistan Civil Servants (Appointment, Promotion & Transfer) Rules, 1979. First of all it may be noted that the Rules of Business of Government of Balochistan, 1976, have been framed under Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 therefore, there is no doubt in saying that these rules have got protection of the Constitution. Under its Rule 19 postings of the Officers have to be made in the following manner: - RULE: 19 (POSTINGS)
1. Transfers of Officers shown in column '1' of Schedule IV shall be made by the authorities shown in column 2 thereof;
2. The Services and General Administration Department shall be consulted if it is proposed to:
(a) transfer the holder of a tenure post before the completion of his tenure or extend his period of tenure;
(b) require an officer to hold charge of more than one post for a period exceeding to months;"
7. The Head of Department, i.e., Secretary is bound to follow the procedure as it has been envisaged under Rule 5 of the Rules of Business, 1976 and unless a ease for the transfer of an Officer is not put up properly no lawful order can be issued implementing directives of the Minister. We have experienced in recent past that the Ministers without caring whether the Officer who is being transferred has completed his tenure or not or is there any complaint of serious nature of misconduct or corruption or he is inefficient to shoulder higher responsibilities or even taking into consideration that on account of frequent transfers of the Officers there will be financial constraints on the public exchequer had been passing orders in whimsical considerations for transferring the Officers from one place to the other in order to bring the Officers of their choice on different places of postings.
8. At this juncture it is also to point out with great concern that as far as civil servants are concerned, they also never feel shy in influencing the Ministers, MPAs and MNAs politically for the purpose of their transfers without knowing that their such conducts tantamount to misconduct which can entail severe departmental action against them.
9. Be that as it may, as far as the Secretaries or Heads of the attached Departments are concerned it becomes their bounden duty not to succumb to the desires and requests of the political figures including Ministers, MPAs, MNAs in acting upon their unlawful directions having no sanctity or legal cover either under the Rules of Business of 1976, or under any other provision of law and just they keep behind the rules, regulations and implement such orders without considering its repercussions in the long run on the structure of the civil service and also without caring that such illegal orders/directions which are being implemented by them are not only detrimental for the national interest but for the individual as well in whose favour such order has been passed because he would not be in a position to show his efficiency rather it will reflect on his integrity because if today he is being transferred on account of the influence of any political figure then such personality tomorrow can ask him as well to do illegal favour at the cost of national interest as well as the Province. In this context equally the Secretary or Head of the Department who had implemented such instructions/orders shall also be responsible tor appropriate action under the relevant departmental rules, if he in implementing illegal orders/directions of the political figures had violated to the Constitutional provisions or to the rules having Constitutional back up for which they can be held responsible at any moment either by the concerned authority of the provincial government or under the provisions of Accountability Act, 1997.
10. In this context in an identical situation honourable Supreme Court in the case of "Zahid Akhtar Vs. Government of Punjab through Secretary Local Government & Rural Development, Lahore & others" (PLD 1995 SC 530), had made following valuable observations for the Government Officers particularly the bureaucracy:- "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 Government 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 complexities of administration. The duty of a bureaucrat, therefore, is to apprise these elected representatives the nicety of administration and province 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 discretion 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. 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".
11. In the above judgment the honourable Supreme Court examined some of the identical cases which is under consideration before us, but despite of making above observations did not give relief on the ground that petition before Lahore High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was not maintainable in view of the bar under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, following the same observations of honourable Supreme Court we are also not inclined to grant relief to the petitioner as it has been prayed for.
12. Thus for the reasons that petition is not maintainable it is dismissed and we direct the office to send a copy of this judgment to the Chief Secretary Government of Balochistan for onward transmission to the Secretaries as well as Heads of the attached departments including all other concerned who are competent to make the transfers of the Officers for their future guidance and strictly adhering to Balochistan Government (Rules of Business), 1976 read with Rule 7-A of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979.
13. Hereinabove are the reasons of our short order of the even date. 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.