2005 PLP 17 (SCMR)

JAVED IQBAL, J.

Precisely stated the facts of the case as enumerated in the judgment impugned are that "the appellant was posted as Deputy D.E.O. (M), Lahore, Swabi on 1-8-2002. After 14 months of previous transfer order, the appellant once again transferred on 6-10-2003 due to political interference against which he submitted a departmental appeal on 13-10-2003 but with no response." Being aggrieved from the pre-mature transfer allegedly made for extraneous consideration arid to accommodate the junior most Officer, respondent No. 1 approached the N.-W. F. P. Service Tribunal, Peshawar (hereinafter referred to as "Service Tribunal") by means of appeal which has been accepted vide judgment impugned, hence this petition.

2. Mr. Tasleem Hussain, learned Advocate Supreme Court entered appearance on behalf of the Government of N.-W.F.P. and vehemently urged that the learned Service Tribunal has transgressed its jurisdiction by cancelling transfer order made pursuant to prevailing policy and more so the question of transfer does not fall within jurisdictional domain of learned Service Tribunal.

3. Mr. Mustamir Khan, respondent No.1, appeared in person and highlighted the circumstances under which he was transferred. It is worth-mentioning that he has levelled serious allegations against .the Minister of Education, N.-W.F.P., who was bent upon to transfer him as certain illegal orders given by the Minister were not complied with. The letter of the Deputy District Officer (Male), Lahore, is indicative of the "desire" of the Minister for Education which on the face of it appears to be illegal which is reproduced hereinbelow for ready reference:

"Executive District Officer, Schools & Literacy Swabi. No.2235 Dated Swabi the 30th August, 2003. To The Deputy District Officer, (Male) Lahore. Sub: PREPARATION OF LEAVE CASE IN RESIDENT OF MR. RAHIM TAZ PTC GPS.N0.3 MANKI. Memo. Please refer to your No.3242/F.No.45/Resignation/Estt: dated 26-8-2003 on the subject noted above. In this connection it is stated that your comments referred to above in the subject case does not serve the purpose to facilitate legal step in leave case of Mr. Rahim Taz PTC teacher GPS No.3 Manki (Lahore) at this stage as desired by the Minister for Education N.-W.F.P: (emphasis provided). As such you are directed to calculate his leave (either it may be extraordinary leave or otherwise as the case may be) from his service book and leave Account and. prepare complete leave case in the light of finding of the enquiry conducted by the Principal GHS Jehangira issued vide his office No. 11, dated 22-3-2003. His application along with service book and leave account/copy of the enquiry report as stated above is enclosed herewith for necessary action and early return along with the leave case. The needful may be done on top priority basis without any further loss of time. Encls:

1. Application.

2. Service book in original.

3. Leave Account.

4. Copy of enquiry report. (Sd.) Executive District Officer, Schools and Literacy Swabi."

4. A bare perusal of the above mentioned letter would reveal that Mr. Rahim Taz P.T.C. Teacher was required to be accommodated at any cost who admittedly remained absent w.e.f. 4-9-2000 to 8-8-2003 without prior approval of the Competent Authority and subsequently also tendered his resignation. Probably it was not within the knowledge of the Minister that wilful absence amounts to misconduct on the basis whereof major penalty of dismissal from service can be imposed. The leave account cannot be maintained as per whims and wishes of the Minister and relevant leave rules are to be followed.

5. We are conscious of the fact that transfer of any Government servant can be made by the Competent Authority in the exigency of service and pubic interest. No Government servant has a legal right to remain posted at a particular place but where transfer order is mala fide and for extraneous consideration to accommodate some blue-eyed chap is justiciable. In such an eventuality the matter would squarely fall within jurisdictional domain of learned Service Tribunal. There is no cavil with the proposition that where, orders passed by the Departmental Authority are mala fide, the Service Tribunal has jurisdiction to interfere and set aside the order. In this regard reference can be made to case titled Riaz Hussain v. State 1986 SCMR 1534. The respondent cannot be punished merely for the reason that he had refused to act illegally rather his moral courage should be appreciated. In our considered opinion no question of law of public importance is involved in the matter on the basis whereof leave to appeal could be granted. The learned Service Tribunal has set right the manifest injustice, hence the question of grant of leave to appeal does not arise. In this regard we are fortified by the dictum laid down in the case titled Secretary Finance, Government of Punjab v. Mian Ghulam Bari 1984 SCMR

642. We may observe while parting with the judgment that "tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as Incharge of administrative departments of Government are not excepted to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order of direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. A Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action". Zahid Akhtar v. Government of Punjab PLD 995 SC 530.

6. The above guideline is required to be followed to maintain the supremacy of law which would be in the interest of fairplay and good governance. No illegality perversity or infirmity could be pointed out in the judgment impugned which being well based does not warrant interference. Copy of this order be sent to the Chief Minister, Government of N.-W.F.P. for information. S.A.K./S-51/S Leave refused.