2012 PLP (C (PLC(CS))

SULTAN MEHMOOD KHATTAK (MEMBER).

This appeal has been filed by the appellant against the order dated 15-6-2010 against which the appellant filed Departmental Appeal which was not decided within the statutory period of 90 days. The appellant has prayed for setting aside the impugned order dated 15-6-2010 being passed in- A violation of law, rules and premature.

2. Perusal of the appeal shows that the appellant has been serving as Social Welfare Officer in BPS-17 and was transferred from Peshawar to Abbottabad on 4-7-2009. There a clash was started between the appellant and the District Social Welfare Officer due to which the District Social Welfare Officer wrote a letter to DCO for transferring the appellant from out of District Abbottabad. The DCO wrote letter to the Director Social Welfare on 5-5-2010 with the recommendation of posting/transfer of the appellant from out of District Abbottabad in light of the complaint and DCO recommendation, the appellant was transferred to Charsadda on 15-6-2010. The appellant agitated the matter before the DCO Abbottabad who ordered the enquiry to be conducted to resolve the issue. The appellant was relieved on 7-6-2010 by District Social Welfare Officer despite of pendency of enquiry, but the DCO directed the District Social Welfare Officer to withdraw the relieving order till the completion of enquiry, resultantly, the relieving of the appellant was withdrawn by the DSW officer on 22-6-2010. In the meanwhile the appellant filed, Departmental Appeal on 26-6-2010 against the order dated 15-6-2010 which was not decided within statutory period. However, after completion of enquiry the appellant and DSW Officer both were recommended to be posted out of District Abbottabad.

3. Arguments heard and record perused. The respondents contested. the appeal and submitted their detailed replies which were rebutted by the appellant through her rejoinder submitted accordingly.

4. The counsel for the appellant argued that the impugned transfer order dated 15-6-2010 is premature and based on mala fide, the impugned order has been passed on the enquiry of the DCO who was I never authorized and nominated to conduct inquiry or to order as such, because the appellant is BPS-17 and for her the competent authority is Chief Secretary/Secretary of the Department and not the DCO. The Counsel for the appellant further argued that the transfer is no where mentioned in the penalty list of the RSO 2000 or E&D rules, therefore, the appellant could not be penalized in shape of transfer. The counsel for the appellant also argued that the impugned order has been passed in violation of rules and regulation as no proper summary was moved for the said, purpose. It is further contended that the appellant has been discriminated because the enquiry officer recommended both the appellant and DSW Officer but only the appellant was posted out without disturbance the other .side i.e. DSW Officer, which is evident from the order attached with the rejoinder in which the DSW Officer (Niaz Muhammad) was posted to Mansehra on 15-10-2010. The said officer relieved from Abbottabad on 27-10-2010 and was posted back tO Abbottabad on 22-11-2010. The counsel for the appellant lastly argued that the appellant is female and having schools going children at Abbottabad being resident of Abbottabad, . it would be difficult for the appellant to travel daily from Abbottabad to Charsadda and vice versa. The same will definitely affect the daily home life of the appellant.

5. The Counsel further contended that as far as the complaint regarding the absence is concerned that was not proved because the appellant produced witnesses during enquiry who give affidavit to the effect that the appellant regularly attended the office. Moreover, escaped of inmate girls was also reported on the vary next day (20-1-2009) to the DSW officer. Therefore, the allegations against the appellant were baseless and having no connection with the reality.

6. The AGP for the respondents argued that the appellant was transferred due to complaint submitted to the DCO by the DSW officer and the enquiry officer has recommended that the appellant be posted out of district Abbottabad. He further contended that the order was passed by the competent authority after fulfilling formalities.

7. The Tribunal hold that the impugned order was premature and passed on the basis of complaint which requires a regular enquiry in the matter and transfer of a evil servant could not be made on the basis of complaint because transfer has not been mentioned as punishment in the penalty-list in the rules and regulations regulating the conduct of the a civil servant. The Tribunal also observed that the appellant is a BPS- 17 C employee, for her the competent authority is Chief Secretary/Secretary of the Department and DCO Abbottabad was not competent to deal the matter directly and to order to conduct enquiry. The Tribunal also noted that the DSW Officer was alsd recommended to be posted out of district Abbottabad but he was transferred to Mansehra on 15-10-2010; relived from Abbottabad on 27-10-2010 and posted back to Abbottabad on 22-11-2010. This proves sheer discrimination against the appellant.

8. In view of above the appeal is accepted, the impugned order ID dated 15-6-2010 is set aside and the appellant shall remain posted as SWO Abbottabad since then. Parties are left to bear their own costs. H.B.T./9/KPK Appeal accepted.