2020 PLP (C (PLC(CS))

ABDUL HAMEED BALOCH, J.

This Constitutional Petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") with the following prayers: "It is therefore, respectfully prayed that this Hon'ble court may kindly be pleased to set aside impugned notification dated 27.12.2019 regarding transfer of respondent No.2 on the place of petitioner and declare the same as illegal, unlawful, without lawful authority in excess of jurisdiction and of no legal effects, and permit the petitioner to continue his duties on his previous position as Controller, BBISE, Quetta, it is further prayed that the respondent No.2 may be restrained from assuming the charge and performing his duties on the place of petitioner, in the interest of justice, equity and fairplay."

2. Briefly stated facts leading to file the instant petition are that vide Notification No.SO(Acad:)10-7/2018/Edn:/9188-92, dated 06.02.2019 the petitioner was posted as Controller, BBISE, Quetta and since then the petitioner was performing his duties to the best of his abilities but surprisingly vide Notification No.SO(Acad:)1-8/2019 / Edn:/13761-70, dated 27.12.2019 (hereinafter referred as "the impugned notification") he was transferred prematurely within span of 10 months with direction to report to the Services and General Administration Department (S&GAD) while respondent No.2 was posted at his place of posting.

3. Learned counsel for the petitioner contended that vide Notification No.SO(Acad:)10-7/2018/Edn:/9188-92, dated 06.02.2019 the petitioner was posted as Controller, Balochistan Board of Intermediate and Secondary Education (BBISE), Quetta but surprisingly vide impugned notification he was transferred prematurely within span of 10 months, which act of the respondent No.1 is against the rule and policy of transfer and posting; that as per deputation policy the deputation period cannot be exceeded than five years but respondent No.2 has served previously on deputation for more than five years, thus the posting of the respondent No.2 is sheer violation of the rule.

4. Conversely learned counsel for the respondent No.2 as well as learned AAG stated that the transfer and posting is policy matter and it is within the domain of Government; that no government servant can claim to be posted at particular place; that the petitioner being an officer of BPS-l7 is most junior stood at Serial No.1038 of the seniority list, issued by the Directorate of Education(S), Quetta, while the post of Controller is of BPS-19, for which the petitioner is not qualified. Learned AAG relied upon the unreported judgment of the Hon' able Supreme Court of Pakistan in Criminal Appeal No.622 of 2019.

5. I have heard the learned counsel for the parties and have gone through the available record. No doubt, the matter regarding transfer and posting of the petitioner is relating to the terms and conditions of service and the constitutional jurisdiction of this Court is barred, but since the service tribunal is not functioning and the petitioner having no other adequate remedy, hence, the question of bar of jurisdiction of the High Court under Article 212(2) of the Constitution in the instant case will not come into play till the establishment and its actual functioning, so as to attend the grievance of a civil servant under its jurisdiction. Reliance can be placed on case titled, "Sarfaraz Saleem v. Federation of Pakistan and others" (PLD 2014 SC 232)

6. It is to be noted that this court vide order dated 09.01.2020 suspended the impugned notification dated 27th December, 2019, however on 07.02.2019 final opportunity was afforded to the learned counsel for the petitioner to finally argue the case but the petitioner failed to argue the case and filed C.M.A. No.263 of 2020 for clubbing the instant petition with another Constitutional Petition bearing No.342 of 2018, title Ajab Khan v. Secretary BBISE and others. Since the instant petition related to transfer of petitioner while the referred C.P. No.342 of 2018 pertains to deputation, which is entirely different from the instant petition, as such C.M.A. No.263 of 2020 is dismissed.

7. Now adverting to the instant petition, it reveals that the petitioner has been transferred by the respondent No.1 vide impugned notification. The perusal of record reveals that the petitioner is serving as SST Science (BPS-17) and as per seniority list issued by the Directorate Education(s), Quetta on 20th March, 2018 the petitioner stood at S.No.1039, while the post of Controller BBISE Quetta has been upgraded from B-18 to B-19, as such the petitioner being officer of BPS-17 is not eligible for holding the higher post of B-19.

8. Learned counsel for the petitioner contended that the respondent No.2 has already served on deputation for more than five years and in view of the Balochistan Civil Servants Deputation Policy, 2012 he is not allowed to be appointed on deputation for further term. It is to be noted that the petitioner has not prayed for setting aside the deputation of the respondent No.2 rather he prayed for setting aside the impugned notification, wherein the petitioner has been transferred. It is settled principle of law that when a relief has not been sought specifically it cannot be granted by the court. Reference is made on the case of Abdullah v. Yahya Bakhtiar PLD 2001 SC 158.

9. For functioning the state machinery, the right person be appointed/posted in right place for the smooth and efficient running of the government affairs and the merit policy should be adhered, otherwise it will effect the performance and efficiency of government servant. The concept to blue eye chap should be discouraged. Frequent transfer/posting of junior officer against the higher grade creates discouragement in the senior officer. The posting and transfer rules are very much clear. The concept of framing rule and regulation is meant to follow it, however violation thereof would effect the performance of the government. It is admitted principle that where law provides for doing a thing on particular manner, it should be done on that manner otherwise not done at all. Reliance can be placed on the case of Muhammad Andleed Raza v. Muhammad Nazar 2019 YLR 1974.

10. Admittedly, senior officer is expected to be appointed as per seniority followed by policy of merit. Every person is to be treated accordingly. In the Constitution of the country the discrimination has strictly been prohibited, as every person is equal in the eye of law. The petitioner has no legal right to claim for posting against particular post. It is well settled that the transfer and posting are policy decision of the government. In the policy decision the government is the best judge and it is not for the court to sit in policy matter unless it appears to be arbitrary or abuse of process of law. In this regard reliance is placed on the case of Peer Muhammad v. Government of Balochistan 2007 SCMR 54.

11. The question of posting of a government servant squarely falls within the jurisdiction/domain of the competent authority. According to Balochistan Civil Servant Act, 1974 (the Act, 1974) every civil servant under the provincial government is liable to serve within the province. It would be relevant to reproduced the Section 10 of the Act, 1974 as under: "

10. Posting and transfer. Every civil servant shall be liable to serve anywhere or outside the province of Balochistan, 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."

12. Admittedly the petitioner is an officer of BPS-17 whereas the post of Controller BBIST Quetta is of grade B-19, under such circumstances the petitioner being an officer of BPS-17 cannot claim a right to be posted on the higher post of B-19. For posting/transfer matters the Hon'ble Supreme Court of Pakistan has comprehensively settled the principle on the case of Syed Muhammad Naqvi and others v. Federation of Pakistan PLD 2013 SC 195 (Commonly known as Anita Turab's case.

13. Under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 any decision of the Supreme Court to the extent of law is binding on all the High Courts and Subordinate Courts, other than Supreme Court of Pakistan. Similarly the decision of the Hon'ble Supreme Court of Pakistan is binding on all the government functionaries, whether the parties or not. It would be relevant to reproduced the Article 189 of the Constitution as under:

189. Decisions of Supreme Court binding on other Courts.

Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. Thus, for the foregoing reasons, on all points noted hereinabove, and the judgments supra referred above, the petition is dismissed having no merit. The interim order dated 09.01.2012, passed in C.M.A. No.51 of 2020 is hereby recalled. ZC/40/Bal. Petition dismissed.