' MUHAMMADBASHIR JEHANGIRI, J.---The two titled Civil d 29-Petition Nos,2 and 29-P of 1999 arise out of a common judgment learned N.-W.F.P. Service Tribunal, Peshawar, (hereinafter referred to as the Tribunal) and are, therefore, being disposed of together.
2. The facts of the two petitions are that the two respondents in the titled petitions are husband and wife. The respondent-husband was selected and appointed as Medical Officer, Rural Health Centre, Havelian, in the first week of November, 1995, in the Health Department. He was transferred and posted as Assistant District Health Officers Abbottabad, vide order dated 25-1-1996 of petitioner No,1 . He was not allowed to work even there for normal tenure of 2 to 3 years and was transferred and posted as Medical Officer, D.H.Q., Hospital, Abbottabad, vide order dated 22-4-1996. He was then again transferred on 12-9-1997 and was posted as Medical Officer, Civil Hospital, Alpuri, Swat District, alongwith his respondent-wife. Both of them were again transferred and posted at Civil Hospital, Khanpur, District Haripur, vide order dated 11-12-1997. Having put in hardly about two months, their transfer order to Khanpur was cancelled on 28-1-1998 directing them, inter alia, to report at their 'original' post. The impugned transfer orders were challenged in Writ Petition No,16 of 1998 but later on they withdrew the writ petition and filed appeals under section 4 of the N.-W.F.P.
Service Tribunals Act (I of 1974) on the grounds (a) to (e) taken up in the Memorandum of their Appeals before the Tribunal including, mala fides, violation of the instructions and rules on the subject of transfer of civil servants, arbitrariness, without application of mind, violation of the standing instructions on the subject and against principles of equity justice and fair play.
3. In their parwaise comments, respondents Nos,1 and 2 controverted the assertions made in the appeals both on factual and legal planes.
4. While accepting the two separate identified appeals of the respondents, the learned Tribunal observed:-- "A bare perusal of the reply of the respondent department will clearly show that they are making repeated transfers of the appellant on account of his conduct and they have referred to the remarks of the District Judge in some criminal cases and also to some other charges. It is to be noted that transfer is not a punishment and if an officer is inefficient or is charged for misconduct, the department is at liberty to proceed against him in accordance with the E & D rules and such type of repeated transfers are strongly condemned by the Hon'ble Supreme Court of Pakistan.
Moreover, this practice is against the established Government policy on the issue, according to which repeated transfers should not be made as it creates immense problems for the concerned officers in finding fresh accommodation and especially schooling for their children. If there is any complaint against the appellant he should not be punished through repeated transfers and the department is at liberty to proceed against him in accordance with the E & D Rules. As far as the connected appellant Dr. Abida Parveen is concerned, nothing is available on the record against her. Moreover, nobody is going to be affected if the impugned order is cancelled. So, without going into further details, the impugned order is nothing but a nullity in the eye of law and is a clear cut violation of the verdict of the Supreme Court and the established Government policy, therefore, the same is hereby set aside and thus, the present appeal as well as the connected appeal are accepted as prayed for, leaving the parties to bear their own costs."
5. Mr. Ejaz Muhammad Khan, learned Additional Advocate-General N.-W.F.P." contends, firstly, that the transfer of a civil servant being incidence of his service can neither be challenged by civil servant nor the Tribunal is competent to cancel it and, secondly, that no mala fides were established against the petitioners and, therefore, the impugned orders are not sustainable in 'law.
In support of these two submissions reliance was implicitly placed on: (i) Syed Afzal Ahmad Hyderi v. Secretary Defence Production Division, Ministry of Defence, Rawalpndi and three others (1991 SCM R 477), (ii) Nazir Hussain, (Ex-Director Excise and Taxation), Administrator, Auqaf, N.-W.F.P.
Peshawar v. N.-W.F.P. Through the Chief Secretary, Services and General Administration Department, Government of N.-W.F.P. Peshawar and 2 others (1992 SCM R 1843) and (iii) Managing Director, WASA, Lahore v. Muhammad Hanif Ijaz, (1997 PLC 108).
6. We have no doubt in our mind that the transfer of a civil servant is an incidence of service.
Nonetheless, if either it is the outcome of the mala fides, or is otherwise arbitrary, violative of the principle of policy governing the transfer of civil servants or is against the canons of justice, equity, fair play then it can be interfered with by the Tribunal inasmuch as the transfer is one of the terms and conditions of civil service. We concede to the proposition raised by the learned Additional Advocate-General that the allegations of mala fides are easy to allege but difficult to prove. At the same, however, we should not loose sight of the fact that element of mala fides can be inferred from the conduct of the functionary of the Government passing the order. In the instant case, therefore, looking to the indiscriminate numnerous transfer orders indicated above, the inference was rightly drawn by the learned Tribunal that the transfers of the respondents were tainted with mala fides although the element of bad faith was not floating on the surface of the record.
Nonetheless it could not be ignored by going through the record and taking note of indiscriminate transfer order after every 2/3 months. In this context, we may refer to the case of Mst. Niaz Parveen v. Mst. Rukhasana Shaheen and 3 others (1995 SCM R 1844), which was also relied on by the learned counsel for the respondents before the learned Tribunal. We can do no better than reproduce hereunder the dictum in the case of Mst. Niaz Parveen (supra):-- "It is unfortunate that within a period of one year transfer orders and cancellation of transfer orders have been made by authorities in respect of the two L.H.Vs. Such practice adversely affects the efficiency of the incumbents and also reduce their confidence and faith. The act of respondents Nos,2 to 4 has, indeed, left a bad taste in our mouths. The Service Tribunal has rightly deprecated such practice. We do not find any fault with its order. Leave to appeal is refused and the petition is dismissed accordingly."
7. In-the instant case almost all the facts are identical. It is disquieting to note that within a period of a year or two, the transfer orders and cancellation of such transfer orders have been made by the petitioners irrespective of the considerations of public interest. The impugned orders of transfer passed indiscriminately without any rhyme and reasons obviously were found to be mala fide, arbitrary, against the canons of justice, equity and fair play. The learned Tribunal has, therefore, rightly cancelled the impugned orders.
8. We do not find any infirmity of the kind in the impugned order calling for our interference under section 212(3) of the Constitution of Islamic Republic of Pakistan. Leave to appeal is accordingly declined and the petitions are dismissed.