' SH. RIAZ AHMED, J.---In both the above appeals, leave was granted by this Court against the judgment of the Federal Service Tribunal dated 23-7-1995 whereby the Federal Service Tribunal (Tribunal) had set aside the transfer of the respondent Taj Muhammad Baloch from the post of Deputy Shipping Master to the Department of Shipping Control as Assistant Controller Shipping.
2. The facts in brief touching the controversy in this appeal are that the respondent Taj Muhammad Baloch joined service as Assistant on 1-1-1973 in the Office of the Directorate-General of Ports and Shipping. On 25-11-1974 he was appointed as Assistant Shipping Master in B-16 by way of direct recruitment. On 4-11-1986, the respondent was promoted as Deputy Shipping Master in B-16. The respondent also held acting charge of the post of Shipping Master. In the year 1977, the post of Shipping Master was upgraded and placed in B-19. The respondent made efforts to get the post of Deputy Shipping Master to B-18. It is stated that the respondent at one point of time succeeded to obtain the approval of the upgradation of the post of Deputy Shipping Master in B-18, but after such approval the formal notification had not been issued. The respondent then invoked the Constitutional jurisdiction of the Sindh High Court for the issuance of such notification, which was under process when in the meanwhile the respondent was transferred for the post of the Deputy Shipping Master to the Department of Shipping Control as Assistant Controller Shipping (B-16) with immediate effect vide notification dated 6-2-1994 issued under section 10 of the Civil Servants Act, 1973. Aggrieved by such transfer the respondent made a departmental appeal on 6-3-1994 and having failed to .Get any response, he invoked the jurisdiction of the Tribunal by way of *filing an appeal with the prayer that the notification dated 6-2-1994 transferring him to the office of the Shipping Control as Assistant Controller Shipping be set aside. The respondent further prayed that he be repatriated to the post of the Deputy Shipping Master with all consequential and back benefits. In fact the grievance of the respondent was that his transfer was mala fide inasmuch as the official respondents wanted to deprive him to take the benefit of the upgradation of the post of Deputy Shipping Master in B-16, and therefore, he was being treated prejudicially. On the other hand, it was argued that under section 10 of the Civil Servants Act, 1973, it was a transfer simpliciter, and therefore, the same could not be objected to.
3. We have heard the learned counsel for the parties at length and have also gone through the judgment impugned. Before the Tribunal as well as before this Court, 1951-Rules were referred to.
Under these rules the post of Shipping Master is to be filled by an incumbent holding the post of Deputy Shipping Master. It was also, conceded before us that the cadre of Assistant Shipping Master, Deputy Shipping Master and the Shipping Master is distinct from the Department of the Shipping Control, and thus, was not interchangeable with each other. We were also surprised when it was argued before us that there were complaints against the respondent, and therefore, by way of punishment the Chairman and the Minister transferred the respondent to the Office of the Controller of Shipping. In our view, such course could not have been adopted because the same is illegal and violative of the law and the rules. If at all there were complaints, best course available was to have proceeded against the respondent under the Efficiency and Discipline Rules. Transfer is not a penalty provided under the Efficiency and Discipline Rules. In this view of the matter, we are of the view that the transfer cf the respondent was not in the public interest, but was mala fide with a view to deprive him of the benefit of upgradation of the post of Deputy Shipping Master and consequential promotion to the post of Shipping Master in B-19.
4. It is also interesting to note that the department adopted a contradictory stand inasmuch as, on the one hand it was submitted that the appellant was transferred consequent to certain complaints in the light of the inquiry report conducted by the Chairman; and on the other hand it was contended that as and when the said post of Deputy Shipping Master is upgraded, the respondent will be considered for the said post. Such contradictory stand takes bottom out of the case of the appellant and we are of the view that the respondent was transferred with a view to pave the way for someone else. Hence we have no option but to hold that the transfer of the respondent to the Office of the Shipping Control was mala fide. It is also noteworthy to mention that before the Tribunal it was conceded that the respondent had made all out efforts in getting the post of Deputy Shipping Master upgraded to B-18 and after having succeeded in the approval of the upgradation was waiting for the notification of upgradation when he was removed from the scene. The reliance by the appellant on the provision of section 10 of the Civil Servants Act, 1973 is of no avail to them. Section 10 is reproduced hereunder:-- "10. Posting and transfer. --Every civil servant shall be liable to serve anywhere within or outside Pakistan, in any post under the Federal Government or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: ' Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: ' Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
5. Under the above-quoted provision of law, no doubt a civil servant can be transferred and is liable to serve anywhere in Pakistan subject to the rider that the terms and conditions of service as to his pay shall not be less favourable than those which he was enjoying prior to his transfer. It was conceded by the appellants that the upgradation of the post of Deputy Shipping Master is under process and the respondent, a Deputy Shipping Master, being incumbent of the said post was eligible and furthermore there was no provision that an Assistant Shipping Controller as the respondent now is, could be considered for promotion. The rules on the subject of promotion do not provide the promotion of the Assistant Controller of Shipping to the post of Deputy Shipping Master because as earlier stated both the cadres are distinct from each other. It is thus clear that the respondent who is Assistant Shipping Controller, will not be eligible and will have to forego his right for further advancement in the cadre of Shipping Master and has also been deprived of the benefit of upgradation of the post of the Deputy Shipping Master as and when the notification is issued.
6. To sum up, we are of the view that the transfer of the respondent from the post of the Deputy Shipping Master to the post of the Assistant Shipping Controller was out of cadre and was designed only to deprive him of the benefit of upgradation of the post of Deputy Shipping Master with mala fide intention and it is not a transfer simpliciter as canvassed before us by the appellants. In this view of the matter, we dismiss these appeals by maintaining the orders of the Federal Service Tribunal, leaving the parties to bear their own costs.