2007 SCMR 599 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.

Roshan Khan, a Senior English Teacher of District Shangla seeks leave to appeal against the judgment dated 10-8-2004 of learned N.-W.F.P. Service Tribunal, Peshawar, whereby, his appeal was dismissed and his transfer order dated 8-3-2003 from Shangla to Government High School Kuz Pao was considered valid, within the contemplation of section 10 of N.-W.F.P. Civil Servants Act, 1973. The plea of the petitioner that his transfer was void being politically motivated, was not taken into consideration.

2. The petitioner alleges and claims to have served Education Department for 30 years and currently belonged to the senior class of teachers. He was holding the post of Assistant District Officer (M) Inspection, since 12-3-2002. Due to his honest and bold action against the teachers, absent from duty, eight teachers who were proceeded against accordingly, nursed grudge and departmental rivalry against the petitioner. They approached Mr. Pir Muhammad Khan MPA whom they had allegedly favoured in elections and thus with the active role of the MPA aforesaid, petitioner was transferred vide order dated 8-3-2003.

3. He preferred departmental appeal, giving the aforesaid background, whereupon, on acceptance of such appeal on 28-2-2004, his transfer order dated 8-3-2003 was withdrawn. The political influence once again got spurred and, to the utter disappointment of the petitioner, the above mentioned order dated 28-2-2004 was cancelled on 11-3-2004. He knocked unsuccessfully at the door of Service Tribunal and hence this petition.

4. As, gross violation of repeated verdicts of this Court was prima facie noticed, a Full Bench of this Court issued notice to the respondents. Again, this Court on 23-5-2006, in view of the allegations levelled by the petitioner, issued notice to Pir Muhammad Khan, MPA to appear before the Court. On appearance he furnished written reply which forms paper book-III of this record.

5. At page 26 of the file there is a memo on the letter head pad of Pir Muhammad Khan MPA where he has given different directions for the postings and transfers of different civil servants. In his comments he stated that the endorsements on the letter head pad (P-26) are undated, unnumbered, unsigned by Pir Muhammad Khan and not addressed to any one. He never denied, in so many words, the endorsement having been made by him but still he said that "the same can only amount to proposals which were to be considered by the concerned authorities and such proposals do not amount to any order or directions or recommendations.

6. From the aforesaid remarks, the MPA who professes to be an Advocate as well, tried to interpret his endorsements at page-26 as mere proposals of recommendatory nature. This is factually incorrect because, the language used is indicative of direction and not proposals. A letter No.3131/F.No.72/ADO(M)/Shangla dated 22-1-2003 written by Directorate of Schools and Literacy to the Section Officer (Primary) Government of N.-W.F.P. Schools and Literacy Department Peshawar proves how Mr. Pir Muhammad MPA was involved in the transfer of the petitioner. A para reproduced therefrom would be self-explanatory:- "

2. On 8-3-2003 Mr. Pir Muhammad Khan, MPA District Shangla visited this office and submitted a proposal for making transfer of some SET/ADOs of District Shangla and thus his recommendation was honoured and transfer order was issued (copy attached) wherein the appellant concerned was victimized/ suffered having immature tenure against the ADO(M) post at Shangla."

7. Another letter No.4454/F.No.72/ADO(Male)/Shangla dated 29-1-2004 would reinforce the charge that Mr. Pir Muhammad Khan MPA had pursued the matter. The relevant para of this letter by Deputy Director (Estt.) Schools and Literacy N.-W.F.P., as follows, is quite revealing:-- "

2. However it is further clarified that his transfer order was made on the request of Mr. Pir Muhammad Khan MPA in March, 2003 and since this Directorate has issued his transfer order hence this Directorate is not in a position to cancel it rather the worthy Secretary, (S&L) N.-W.F.P. is the competent/appellate authority to consider his appeal regarding cancellation of his transfer order."

8. It is deplorable that the officers concerned invited the recommendations of MPAs for cancellation of transfer order, specially, Pir Muhammad Khan MPA, the one who opposed the petitioner. This very letter shows that even the department was aware that it was impossible for the petitioner to obtain recommendation of Pir Muhammad Khan MPA because it was he who victimized the petitioner. Anyhow, when the petitioner was asked to bring recommendations of an MPA, he produced one of Mr. Hamid Iqbal. It seems that Mr. Hamid Iqbal did not volunteer to make recommendation. It was probably arranged by the petitioner under the desire of the department, in order to balance the pressure. The relevant para is as follows:-- "

3. As regards obtaining of recommendation/consent from Pir Muhammad Khan MPA Shangla as per your directions contained in your letter referred to the above, so it is not possible for him as he has been victimized through the said MPA, however, he has been got favourable/strong recommendation of Mr. Hamid Iqbal, MPA, also belongs to District Shangla (Annexure "B")."

9. Another letter would further clarify the persistent involvement of Mr. Pir Muhammad Khan MPA. The same is reproduced:-- "Directorate of Schools and Literacy N.-W.F.P. Peshawar. No.1.1408/dated 2-12-2003. The Section Officer (Primary) Government of N.-W.F.P., Peshawar. Sub: Transfer Cancellation Memo. Kindly refer to your office letter No.SO(PE)(S&L)EDO dated Peshawar the 10-11-2003 the following comments are hereby submitted for clarification of situation: (1) The letter issued vide reference No.3131/F. No.72/ADO(M) Shangla dated 27-10-2003 by Director (S&L) Shangla, it is requested that the said proposal/view was submitted by the worthy MPA Mr. Pir Muhammad Khan. This officer has neither forwarded for said proposal nor is involved in this matter. (2) The ADO Mr. Roshan Khan is an efficient and hardworking officer. (3) The ADO concerned Mr. Roshan Khan had not completed his normal tenure on the said post. Keeping in view the above facts if the transfer order of the officer concerned is cancelled this office will have no objection. Executive District Office Schools and Literacy"

10. All documentary evidence has gone a long way to prove that Pir Muhammad Khan was persistently involved in getting the petitioner transferred. He dubbed it as mere proposal but, under the prevailing conditions, one can well contemplate as to what is meant by the proposal of an elected representative who carries a weight to throw.

11. As early as in 1993, this Court had sensed the malady. In Munawar Khan v. Niaz Muhammad 1993 SCMR 1287, a larger Bench had taken serious notice of allocation of appointment quota to the Ministers, MNAs and MPAs though with the blessings of the executive, and had declared them void ab initio, calling upon all Courts, Tribunals and Authorities to so declare. A healthy example of such compliance was Parwez Yunas Uppal's case PLJ 2000 (Tr.C.) Service 473, where the learned Federal Service Tribunal declared a transfer order void and mala fide because it was motivated by a privilege motion moved in the assembly and because the competent authority had passed it without the application of its own and independent mind.

12. Transfer of civil servant under the orders of even a Minister was held by this Court to be void and unlawful, being violative of Rule 21(2) read with Schedule V of Rules of Business 1974. While condemning the role of Minister, that of tamed and subservient bureaucracy was also condemned and need for an upright, honest and strong bureaucracy was emphasized. Zahid Akhter's case PLD 1995 SC 530 is the relevant reference.

13. Lately, in Sayyad Sikandar Ali Shah's case 2002 SCMR 1124, the role of competent/Administrative authorities was once again condemned when they yield and surrender to the dishonestly intruding political influence.

14. It is for quite a long time, that some of the peoples representatives, whose sacred and scholarly job it was to legislate while honourably confining themselves to the dignified mansions of the assemblies, have started undesirable, dishonest and corrupt interference into the purely Executive/Administrative domain of appointments, promotions and transfers of civil servants. By now it has turned into a mafia that does not care about Law, Rules, Regulations, Rules of Business and repeated deprecations by the Supreme Court of Pakistan and High Courts. All forces seem to have whittled down before the exploitation and blackmail by some people whose weight, and not legislation, matters. This is bound to destroy the institutions, if not already destroyed.

15. Despite the fact that there is no law in the country giving authority to MPAs or MNAs to interfere into the Executive and Administrative domain, even to the extent of recommendations and proposals; despite the fact that the Rules of Business are utterly to the contrary; despite the fact that such practice is highly deprecated and condemned by this Court on numerous occasions, Mr. Pir Muhammad Khan, on whose letter head pad word Advocate appears below his name, has flouted all Law, Rules and Regulations. As an Advocate he ought to have been aware of the verdicts of the superior Courts and if not, at least, he ought to have known the Rules of Business and above all, the nature of his own obligations towards legislation in the Assembly and not beyond.

16. Before this Court he appeared personally and held the rostrum to address. It was a short but eloquent speech where, instead of clarifying his position, he argued the case against the petitioner saying that he was beaten by the teachers, that law and order situation had arisen and that his transfer was, therefore, necessary, again not realizing, that law and order also was not his headache. It is quite interesting that he still kept venom against the petitioner. At the end he requested the Court, not that he be absolved but that the instant petition be dismissed. In view of the background of political influence, the background of the case in hand and the repeated verdicts of this Court, we are constrained to observe that Mr. Pir Muhammad Khan MPA has been guilty of misconduct, unfair exploitation and malpractice that maligns the legislature and disrupts the administration.

17. It was for the reasons above that we had accepted the petitioner's claim after conversion into appeal through our short order dated 3-10-2006 that runs as follows:- "For detailed reasons to be given later on, the impugned judgment dated 10-8-2004 of the learned N.-W.F.P. Service Tribunal is set aside, the transfer order # 1201-1206/F.No.72/DS&L/ADO(M)/Shangla, dated 8-3-2003 passed by Director Primary Education N.-W.F.P., Peshawar is hereby set aside as withdrawn and that Endst. No.1077-82/F.No.13/Vol: 1/DIE/ADO(M) Shangla, dated 12-3-2002 of the Director Primary Education, N.-W.F.P. Peshawar is restored. M.H. /R-22/SC Appeal allowed.