2016 PLP (C (PLC(CS))

ZAHEER-UD-DIN KAKAR (CHAIRMAN).

The appellant being aggrieved of impugned Notification No.SO-I(LG)1-6/2015/2313-23/ dated 11-11-2015, whereby, he has been transferred from the post of Acting Senior Assistant Director LG Naseerabad at Dera Murad Jamali to the post of Assistant Director (BPS-17) Local Government Kachhi, at Dhadar and in his place respondent No.3 has been posted preferred instant appeal with contention, that the impugned notification has been made in violation of Rules and Regulations as well as in violation of Transfer/Posting Policy of the Government of Balochistan. Thus, the same is liable to be set-aside.

2. The respondents Nos.2 and 3 contested the appeal on legal and factual grounds by filing their separate Para-wise comments. Whereas, the respondent No.1 relied upon the Para-wise comments of the respondent No.2.

3. We have heard the learned counsel for the parties and have gone through the record of the case.

4. The record reveals that on the recommendations of the Provincial Selection Board the appellant was promoted as Senior Assistant Director (BS-18), Local Government w.e.f. 22-09-2015, vide notification dated 09-11-2015, and the respondent No.2, has annexed with his PWC a copy of summary for the Chief Minister dated 07-12-2015, (Annex-A) which shows that the transfer/posting case of the appellant has been processed and the respondent No.2 has proposed the posting of the appellant from the post of Assistant Director (BPS-17) Local Government Kachhi at Dhadar to Senior Assistant Director (BPS-18) Local Government Sibi. Since, the respondent No.2 has already processed the case regarding posting of the appellant vide Summary dated 07-12-2015, thus the respondent No.2 is directed to expedite the posting case of the appellant as proposed vide summary dated 07-12-2015, within a period of one month positively.

5. As far as the respondent No.3 is concerned, perusal of summary dated 19-10-2015, shows that he is at S.No.15 in the Seniority List of Assistant Directors (BPS-17), and on the desire of a political figure, the respondent No.2 had proposed him as Acting Senior Assistant Director (BPS-18), Local Government Naseerabad in his own pay and scale and thereafter, the said proposal of the respondent No.2 was approved by the Competent Authority on 10-11-2015, and the respondent No.2 has issued the impugned notification.

6. In the instant case admittedly, as per summary dated 19-10-2015, ("the said summary") (Annexure-K of the PWC of R.No.1) the respondent No.3 is in (BS-17), and his name is at S.No.15 of Seniority List of the Assistant Directors (BS-17), but contrary to the Cabinet Decision dated 17-02-2003, contained in letter dated 12-03-2003. Acting charge of (BS-18) was given to the most junior officer i.e. respondent No.3 and he is enjoying the said post for more than one month, which is against the Rules and Regulations as well as in violation of the cabinet decision. Moreover, the Hon'ble Supreme Court of Pakistan in Judgment reported in 1999 PLC (CS) 264 had held that "giving of higher posts to the privileged one's is evil as it give rise to heart burning to the efficient, energetic and upright officers and rocking the entire service structure."

7. In the instant case by giving acting charge of the senior post to a junior officer (respondent No.3) inspite of the fact that the senior officers are available in the department, this lead the seniors to discouragement and compel them to approach the Service Tribunals/Courts for redressal of their grievances. Apart from above, the adhocism policy should be discouraged and employees should be posted on permanent basis by following the procedure, as law does not permit such practice. Furthermore, Acting/Additional Charge Appointment must be given to persons who are senior most as per Seniority List and in this respect the appointing authority has got no discretion at its sweet will. Such discretion needs to be exercised judiciously based on merit. In the instant case this discretion has not been strictly exercised in accordance with the seniority assigned to the incumbents involved in this appeal.

8. From perusal of the said summary, it also transpires that the impugned notification is politically motivated because as per the said summary, the respondent No.3 was posted on the desire of a political figure, which is clear violation of the Rules and Regulations as well as violation of the Judgment of the Hon'ble Supreme Court reported in [PLD 2013 SC 195] wherein it was held:-- "Furthermore, with regard to transfers of civil servants, this Court has stated that transfers by political figures which are capricious and are based on considerations not in the public interest are not legally sustainable Farrukh Gulzar v. Secretary Local Government and Rural Development Department, Lahore and 2 others (1998 SCMR 2222). These are principles of law enunciated by this Court and are to be followed in terms of Article 189 of the Constitution. We, however, repeatedly come across violations of such principles. This unnecessarily leads to litigation which, in turn, clogs Courts and Service Tribunals."

9. In view of the above discussion, the appeal is disposed of with directions to the official respondents to post a senior officer of BS-18 as Senior Assistant Director, Local Government Naseerabad, within a period of one month positively and in case a suitable senior officer in BS-18 is not available for posting as Senior Assistant Director, Local Government Naseerabad, then the Government will be competent to post a Senior most Assistant Director, (BS-17) as stopgap arrangement till the availability of suitable officer of (BS-18). The respondent No.3 who is the most junior Assistant Director in (BS-17) shall cease to hold the said position after expiry of stipulated period i.e. one month from the date of passing of this Judgment. The interim order dated 02-12-2015, regarding suspension of impugned notification dated 11-11-2015, is hereby recalled. Copy of this Judgment be sent to the official respondents for compliance. File after completion be consigned to record. ZC/1/BST Order accordingly.