1999 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER).‑‑‑The appellant is serving as LS‑1 and by an impugned order dated 20‑8‑1996 he has been transferred from Ghuinkey Sub‑Division, Sialkot to Power House Sub- Division, Sialkot. This order dated 20‑8‑1996 has been agitated departmentally vide representation dated 18‑9‑1996 and the present appeal under section 4 of the Service Tribunal Act has been filed on the next day i.e. 19‑9‑1996 on the only ground that the appellant being low, paid employee of WAPDA had spent long years of service away from the home station and he had been posted at a station situated near to his residence vide order dated 2R‑6‑1995 but just after 14 months he has been transferred away the despite the fact that standing instructions dated 27‑9‑1994 and 9‑8‑1995 prescribe a period of three years as a tenure and transfer of officials prior to the expiry of such tenure has been discouraged.

2. We have listened to the arguments of the learned counsel for the appellant at the preliminary stage of hearing particularly on two points: Firstly, whether the posting at a particular station constituted terms and conditions of service of a civil servant and secondly whether the transfer from one station to another prior to the expiry of the tenure justified service appeal under section 4 of the Service Tribunal Act prior to the expiry of the period of ninety days. The learned counsel mainly on a judgment of the Division Bench of Lahore High Court wherein it has been held that transfer matters can be agitated by way of service appeals and due to the urgency of the matter, the appeal will be competent even prior to the expiry of ninety days. The learned counsel also relied on PLD 1995 SC `530 to assert that normally a civil servant shall not be transferred from one station to another prior to the completion of prescribed period of tenure. The learned counsel also added that appointments or transfers based under political pressures have not been upheld by superior Courts.

3. The Service Tribunals are constituted under Article 212 of the Constitution of Pakistan being the forum of administrative nature and to adjudicate upon the disputes of civil servant with regard to the infringement of the vested rights in the terms and conditions of their service. The Tribunal has to follow strictly the limits prescribed by the statute in this connection. The legislature has prescribed a period of ninety days for the disposal of departmental appeal with the purpose to encourage the concept of redressal of disputes internally. The appeals or representations under section 22 of Civil Servants Act are considered by the appellate and higher authorities they deserve the provision of an opportunity to find out the truth contained in the departmental appeal /representation. Thus, by the disposal of departmental appeal, and thereby redressing service grievances of the employees, not only the mal‑administration of subordinate agencies is eliminated but cordial relations between the employer and employees is also thereby achieved. It is open for the civil servant to file a service appeal against the original or appellate order within thirty days. If a departmental appeal was not necessary, or expedient, the original order could be challenged within thirty days thereof but once the departmental appeal is filed, the period of ninety days will have to be allowed to justify the competence of service appeal 'under section 4 of the said Act in the instant case the impugned order was passed on 20‑8‑1996 and the appellant did not feel any urgency to seek departmental remedy for almost one month. The departmental appeal was filed on 18‑9‑1996 and the service appeal filed on the next days, that 19 9‑1996, was certainly incompetent in accordance with the proviso to section 4 of the Service Tribunals Act.

4. The learned counsel for the appellant also stated that the period of three years has been prescribed as a minimum period of tenure and the administrative agencies are debarred from ordering any transfer prior to the expiry of the said period, The perusal of the circulars issued in this regard do not display any ban or embargo for transferring the civil servant within a period of three years. At the most the circulars lay down a procedure that in normal situation an employee may be allowed stay of three years at a station. However, in public interest such transfers can be affected with the approval of, or intimation to the competent Authority. Thus the circular does not vest the civil servant with an absolute right to stay at a station for the prescribes period rather the said directives are in the advisory capacity prescribing an internal procedure to be adopted and authorities to be informed. Such an advisory directive cannot be made the basis of filing the service appeal particularly when the civil servant is likely to be posted anywhere against any existing vacancy equivalent or higher to his post.

5. The learned counsel further argued that the Honourable Supreme Court has discouraged the political involvement in service matters but the entire documents placed on file do not refer to any clue that the transfer of the appellant was based on any political pressure or directives. Even in the departmental appeal the appellant has stated that he has been transferred on the basis of trade union activities for being a member of the opponent group of Hydel Electric Union. If at all this amounts to unfair labour practices, the forum of Service Tribunal was not a right place to agitate the grievance. The appeal of the appellant on the similar subject has already been declined admittedly by the N.I.R.C. It is also not available to the appellant, to agitate that he has been transferred frequently or several times within a short span of time. He has had the opportunity of having considerable longer period of stay at various stations and the transfers being the administrative discretion can be ordered administratively as considered expedient by the administration.

6. For the foregoing reasons we do not consider it a fit case to be admitted for regular hearing. The appeal is, therefore, dismissed in limine.

7. A Miscellaneous Petition No. 174 of 1996 was filed by the appellant at Islamabad on 26‑9‑19.96 with the request to suspend the operation of the impugned order. The same was also sent to this Bench for disposal on the date fixed for preliminary hearing. Since we have already dismissed the appeal in limine, therefore, the petition is disposed of as having become fructuous. H.B.T./108/Sr.F Appeal dismissed