2011 PLP (C (PLC(CS))

SABIHUDDIN AHMED, J.

This appeal by leave of the Court arises from a judgment of the Federal Services Tribunal, Islamabad dated 10-6-2003 dismissing the Service Appeal No.221(K)(CS)/2001 against an order dated 17-4-2001 imposing the penalty of stoppage of promotion for five years.

2. In the facts as stated in the charge-sheet along with the statement of allegation dated 8-5-1995 appears to that Messsrs I.B.I Industries (Pvt.) Ltd. (Importers) had imported water treatment plant equipment in 1995 and sought its release at concessionary rate of customs duty through their Clearing Agent. It was alleged that the appellant who was an Appraiser in the Customs Collectorate had raised certain verbal objections, but subsequently upon the importer having explained the position to the Assistant Collector, the consignment was released on payment of duty at concessionary rate. It was alleged that before the release of the consignment the importer had made an extra payment of Rs.300,000 through cheque to clearing agent, who had claimed that customs officials were demanding illegal gratification.

3. The complaint of the importer was referred to the Director, Customs Intelligence for a preliminary fact-finding, who reported that certain facts "lent credence" to the allegation levelled, by the complainant. Thereafter a proper charge-sheet was issued along with statement of allegations and one Mr. Umer Mehdi, Assistant Collector was appointed Enquiry Officer, who after issuing show-cause notices and not receiving any reply, recorded his ex parte enquiry report. He found the appellant "guilty of misconduct and corruption under Rule 3(b)(c) and (d) of the Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the "Rules)."

4. The appellant however, upon learning of the existence of the inquiry report represented to the authorized officer that no further action upon the aforesaid report be taken as he had been suspended and no notice of inquiry proceeding had been served at his residential address. His plea was accepted by the authorized officer, who ordered a de novo inquiry, by the same officer after supply of documents to him and granting full opportunity of hearing to the appellant. The appellant submitted a reply, denying the allegations. However, the Enquiry Officer was subsequently transferred and thereupon one Mr. Barkat Ali Bukhari, Deputy Collector was appointed enquiry officer.

5. The newly-appointed Enquiry Officer thereafter conducted an inquiry in the presence of the appellant and by his report, dated 10-2-1997 found allegations not proved and exonerated him. Apparently, the findings of the Enquiry Officer were approved by the authorized officer. However, appellant received a show-cause notice dated 7-4-1997 from respondent No.1 (Collector of Customs, Appraisement), being the "Authority" under the rules, stating that, he was tentatively of the view that the charges against the appellant stood established as he had not processed the bill of entry till payment of Rs.300,000 was made by the importer to the clearing agent. It was mentioned in the notice that whereas the first Enquiry Officer had concluded vide report dated 3-9-1995 that the charges of misconduct and corruption stood proved, the second Enquiry Officer came to a contrary conclusion due to the statement of the clearing agent before him that the amount in question was returned to the importer and had not been paid to the appellant. The appellant was required to show cause why the major penalty from dismissal of service should not be imposed.

6. The appellant submitted a reply to the notice and by Office Order dated 17-4-2001 he was informed that a minor penalty of stoppage of promotion for the period of five years has been imposed on him. At the same time however, apart from being reinstated, he was also informed that in pursuance of the letter from the FBR dated 13-3-2001, his name had been excluded from the list of inefficient/corrupt officials. The appellant after submitting a Departmental Appeal and waiting for the statutory period during which he received no response preferred an appeal before the Federal Service Tribunal, Islamabad.

7. Parawise comments were filed on behalf of the respondents wherein it was inter alia averred that the first inquiry report of Khawaja Umer Mehdi dated 3-9-1995 was never set aside, though it was simultaneously urged that at the request of the appellant dated 22-4-1996 re-inquiry was ordered and thereafter upon the transfer of Khawaja Umer Mehdi, Mr. Barkat Ali Bukhari was appointed Enquiry Officer. In attempting to dispute the appellant's contention as to his record of dedicated performance of duties, the respondents contended that his name was included in the list of officials suspended as being "Corrupt and Inefficient", whereas the impugned order expressedly records that his name was to be excluded from such list in terms of the respondent No.2's letter dated 29-3-2001. While the impugned order imposing penalty does not contain any substantive reason for discarding the evidence of the Enquiry Officer. It is stated in the comments that the following reasons were recorded on the case file:-- "Due to my personal knowledge regarding involvement of clearing agent and appraiser on the basis of complaint received from a foreign investor, I am not inclined to accept the latest inquiry reports."

8. The learned Service Tribunal however, vide its impugned judgment dismissed the appeal and declined to interfere with the order imposing penalty. Leave to appeal against the aforesaid judgment was granted to consider a number of contentions raised on behalf of the appellant.

9. We have heard Mr. M.M. Aqil Awan, learned counsel for the appellant and Mr. Shakeel Ahmed on behalf of respondent No.1 at quite some length and have carefully gone through the record. 10 Learned counsel for the appellant at the outset argued that the impugned order imposing minor penalty passed by the respondent No.1 in his capacity as authority in the face of an inquiry report exonerating the appellant which was duly approved by the authorized officer was coram non judice. Indeed the inquiry report admittedly exonerates the appellant and though no order of the authorized officer has been placed on record, the appellant categorically asserted both in the memo of petition before this Court and the memo of Appeal before the Service Tribunal on oath that the authorized officer had agreed with the findings of the Enquiry Officer and found the charges not proved. However, in the parawise comments not so verified the respondent attempted to deny the contention and alleged that the minor penalty was imposed by the authorized officer and the case was submitted to the competent authority for approval. Such contention however, clearly appears to be false and untenable; it was never mentioned in the show-cause notice and the learned counsel appearing for the respondents himself conceded as is evident from para No.3 of the impugned judgment that the authorized officer had also proposed exoneration of the appellant. We must at this juncture strongly deprecate the tendency on the part of responsible public officers to mislead the Court on facts merely to suit their whims.

11. On the legal aspects of the matter Mr. M. M. Aqil Awan, learned counsel for the appellant argued that under Rule 6(6) of the Rules, the Enquiry Officer has to submit his findings and reason thereof to the authorized officer. Under Rule 5(iv), the latter on the receipt of the report of the finding is to determine whether the charges have been proved; if he proposes to impose a minor penalty he could do so himself and only if a major penalty is to be imposed the matter is required to be referred to the authority. Learned counsel argued that even if it is assumed that the authorized officer disagreed with the findings of the enquiry officer, he for good and proper reasons could impose a minor penalty after giving a notice of hearing to the appellant, in accordance with the principles of natural justice. In the circumstances, there was no occasion to seek the intervention of the authority for doing so.

12. Indeed, Mr. M. M. Aqil Awan, learned counsel for the appellant appears to be correct so far as requirements of Rule 5 are concerned, however, Mr. Shakeel Ahmed, learned counsel for respondent No.1 argued that the order was passed by the respondent No.1 in exercise of his plenary powers conferred by rule 6-A of the Rules. The aforesaid rule confers wide jurisdiction upon the authority to call for the record and pass any order that deems fit both in respect of a case pending or disposed of by the authorized officer. Therefore; even if the authorized officer had passed a final order exonerating the appellant, the respondent No.1 was not divested of his powers under Rule 6-A of the Rules. In view of the aforesaid legal position, we are unable to subscribe to Mr. Awan's contention that the order imposing minor penalty was ex facie without jurisdiction.

13. Nevertheless we find greater force in learned counsel's alternate contentions that for exercise of revisional powers under Rule 6-A of the Rules if the respondent No.1 was minded to disagree with the conclusion of the Enquiry Officer or the authorized officer, proper reasons for doing so ought to have been assigned. Learned counsel in this context relied upon the judgment of this Court in Chief Director, Central Directorate of National Savings, Islamabad and another v. Rahat Ali Shewani reported in (1996 SCMR 248). In the above case the Enquiry Officer had reported that the allegations against the accused officer were not proved and the authorized officers on the basis of the above findings exonerated him. About eight months thereafter, the authority issued a show-cause notice, stating that in the exercise of powers contained in Rule 6-A of the Rules, he had examined the case and being dissatisfied with the decision of the authorized officer, he was of the view that the charges had not been cleared beyond doubt and therefore, setting aside the order, he had decided to reconsider the case. After considering the reply to the notice minor penalty of censure and recovery of the amount of pecuniary loss caused was passed. Interpreting Rule 6-A of the Rules, their Lordships held that the revisional powers conferred thereby were not hedged by any pre-conditions, such as those in section 115, C.P.C. Nevertheless, they could not be exercised arbitrarily and the cast which was expected from the authority was to mention the grounds in the show-cause notice on the basis of which it was inclined to take a view contrary to that of the Enquiry Officer or the authorized officer. Accordingly, the order passed by the Service Tribunal, setting aside the penalty imposed was upheld.

14. Applying the principles of law laid down in the above case we found that the show-cause notice dated 7-4-1997 hardly contains any cogent reason for invoking the provision of Rule 6-A of the Rules. Evidently action had been initiated on the complaint of the Importer, who has stated that his clearing agent had obtained Rs.300,000 from him to be paid to customs officials by way of illegal gratification and had never alleged that any amount was received by the appellant from him. At the same time it was acknowledged in the notice itself that the clearing agent deposed before the Enquiry Officer that no payment was made to the appellant and the amount was eventually returned to the importer. In the circumstances the Enquiry Officer could not conceivably arrive at any conclusion except that the charges could not be proved. Yet to create a pretext for exercise of power the respondent No.1 chose to rely upon the report in an earlier ex parte inquiry dated 3-9-1995, which stood vitiated when the authorizd officer accepted the appellant's representation dated 22-4-1996 and directed the holding of inquiry afresh.

15. We need to make it clear that Rule 5(1) (ii) of the Rules only contemplates holding of "an inquiry" and does not enable to holding of multiple inquiries and leave it to the whims of the authorized officer/authority to choose the result of anyone of them. It is well-settled that all public powers are to be exercised honestly, fairly and judiciously. When the authorized officer accepting the appellant's representation dated 22-4-1996, directed the Enquiry Officer to hold the inquiry afresh after hearing the appellant, the findings of the Enquiry Officer in the ex parte inquiry dated 3-9-1995 stood completely wiped out and only the conclusions recorded in the subsequent inquiry dated 16-2-1997 were liable to be considered. Indeed the authorized officer under Rule 5(4) or the authority under Rule 6-A of the Rules for valid and proper reason could disagree with the findings of the Enquiry Officer after giving notice to the accused officer, but certainly no reliance could be placed upon the findings of the earlier ex parte inquiry which stood annulled. In the instant case no reason whatsoever has been assigned either in the show-cause notice dated 17-4-2001 or in the order imposing penalty. Learned counsel has also rightly asserted that the latter order does not contain any reasons and is violative of section 24-A of the General Clauses Act, 1897 (hereinafter referred to as the "Act").

16. Mr. Shakeel Ahmed, learned counsel for the respondent faced with this situation drew our attention to para No.10 of the parawise comments filed before the Service Tribunal and urged that the real ground for imposing penalty was recorded by respondent No. l on the case file quoted in para No.7 above. In this context we must reiterate that while exercising quasi-judicial powers in disciplinary matters the respondent No.1 had no business to import his personal knowledge to the facts of the case as has been observed in the recent judgment of this Court in the case of Amin-e-Ajam v. Board of Revenue and another reported in (2007 SCMR 1581) cited by Mr. M.M. Aqil Awan, learned counsel for the appellant. We are also mindful of the classical observation of the Hon'ble Chief Justice (R) A.R. Cornelius in the case of Muhammad Mohsin Siddiqi v. Government of West Pakistan reported in (PLD 1964 SC 64) to the effect that in such inquiries an officer cannot act as a judge, prosecutor and witness at the same time. The revisional powers under rule 6-A of the Rules are of quasi-judicial nature and ought to be exercised with circumspection and restraint and should not have been exercised in the circumstances.

17. In any event if respondent No.1 had any personal knowledge, he could have caused the relevant evidence in that respect to be adduced before the Enquiry Officer to enable the latter to arrive at a proper conclusion instead of making a mockery of the whole legal process by allowing the enquiry to proceed and waiting to exercise his powers under Rule 6-A on the basis of his "personal knowledge" irrespective of the outcome of the proceedings. Moreover, the least he could do was to apprise the appellant of the facts alleged to be in his personal knowledge in compliance with the elementary principles of natural justice. The mere fact that matters alleged to be within his personal knowledge were neither communicated to the appellant in the show-cause notice dated 7-4-1997 nor in the impugned order imposing penalty but only recorded in the secrecy of his files renders the order not merely illegal but also tainted with bias and as such mala fide.

18. Apart from the legal flaws, we are constrained to observe that the learned Members of the Service Tribunal also approached the matter in a highly unjudicious manner. They not only took into consideration "reports" which had no legal worth but also failed to consider that the material referred to therein never conclusively established the guilt of the appellant. In the first place, they exhaustively referred to the report of the Director Customs Intelligence who was required to conduct a preliminary fact-finding inquiry on the complaint forwarded to him and not any inquiry into allegations against the appellant. The extract from this report quoted in para No.5 of the impugned order, at the outset shows that this officer had merely spoken of prima facie correctness of certain allegations and evidently the report could only be treated as suggestion for holding a proper inquiry against certain customs officials. As regards specific findings of facts, the officer found that documentary evidence had been furnished regarding payment of Rs.300,000 to the clearing agent. He also found that the latter initially denied receiving the amount but when confronted with evidence of payment he committed to return the amount to the complainant. The only evidence against the appellant and other customs officials adduced before him was in the form of a paper indicating payments, break-up furnished by one Mr. Muhammad Bashir, a representative of the complainant, stated to have been provided by the clearing agent. The officer also recorded that the customs officials had contended that in the meeting dated 10-1-1995 they had accepted the viewpoint of the importer/complainant regarding the admissibility of the concessionary rate of duty and accordingly the consignment was released on 11-1-1995. The complainant however denied it and stated that the Assistant Collector had asked him to cooperate with the clearing agent and the consignment was released after the amount was paid to the latter. However, considered that the files did not record the minutes of the meeting of 10th January, 1995 and the fact of the consignment being withheld for about a week and subsequently released on the day following payment to the clearing agent "lent credence to the allegations" and "smacked of ulterior motives" on the part of customs officials. Obviously, he felt suspicious of the conduct of the appellant and other customs officials but never recorded a conclusive finding against any of them. The report indeed justified holding of a proper inquiry but it is incomprehensible that how the learned Tribunal treated it as evidence against the appellant when only his statement was recorded and neither other statements were recorded in his presence nor was he given a chance to cross-examine witnesses or produce evidence in defence.

19. The Tribunal then proceeded to rely upon the report of the ex parte inquiry conducted by Khawaja Umer Mehdi, Assistant Collector which as mentioned earlier had been set aside. A perusal of this inquiry report shows that upon the alleged persistent failure of the appellant to furnish reply and appear for hearing, in the opinion of Enquiry Officer signified his acceptance of charges, as observed in para No.3 of the inquiry report. Though this officer has observed he was constrained to finalize the inquiry ex parte on merits, it is not indicated whether any witness was examined and only the shows records were examined. The conclusions on facts appear to be based on the statements recorded in the earlier report of the Director Customs Intelligence or were at least not inconsistent therewith. The officer also specifically recorded that the clearing agent had categorically denied making any payment to the appellant or any Customs Officer. Nevertheless, premising his conclusion on the basis of conjectures and inferences which could only be a cause of suspicion, this officer convinced himself that not only charges of misconduct and corruption under rule 3(b) and 3(c) but even under 3(d) of the Rules of being involved in subversive activities making his retention in service prejudicial to national security were established against the appellant.

20. The learned Members of the Service Tribunal however proceeded to treat these two reports as substantive evidence against the appellant. On the other hand, they never bothered to carefully consider the contents of the only admissible inquiry report wherein the controversy relating to admissibility of benefit of concessionary duty, the delay in the processing of the case file and the extent of appellant's responsibility for the same, the absence of any material to show that any part of the amount received by the clearing agent was ever paid to the appellant, the effect of the unsigned and undated paper allegedly containing the break-up of payments made by the clearing agent stated to have been given to the representative of importer who failed to appear in the inquiry despite notices were thoroughly discussed. The findings of the inquiry were dismissively commented upon through a one-line observation to the following effect:

"The report of the Enquiry Officer Mr. Barkat Ali Bukhari has strangely enough denied the facts without irrefutably substantiating his findings."

21. It is also evident from the impugned judgment of the Service Tribunal that whereas the provisions of section 24-A of the Act as well as the law declared by the Court in the case of Chief Director Central Directorate of National Savings, Islamabad and another (supra) was duly cited before them in support of the contention that an order passed under rule 6-A of the Rules must contain valid reasons. The Members of the Tribunal (whom we are reluctant to call learned) in their unwarranted anxiety to uphold a patently illegal order, brushed aside a statutory requirement and a binding principle of law by simply stating that failure to record reasons was merely "a technical lapse". We are, therefore, constrained to observe that the order impugned before us is not merely illegal but also perverse.

22. For the foregoing reasons we would allow this appeal with costs and set aside the penalty awarded to the appellant. We would further hold that since the appellant was not superseded on the ground of fitness in case the officers junior to him have been promoted in the meantime, the appellant would be entitled to the benefit of Rule 3(c) of the Civil Servants (Seniority) Rules, 1993 and all consequential benefits arising therefrom.

23. A copy of this judgment may be sent to the Chairman, Federal Service Tribunal and the Member (Judicial) Federal Board of Revenue for appropriate action in view of the observations contained in paras Nos.17 and 21 hereinabove. S.A.K./H-1/SC Appeal accepted. 2011 P L C (C.S.) 1103 [KPK Service Tribunal] Before Qalandar Ali Khan, Chairman Sultan Mehmood Kattak and Syed Manzoor Ali Shah, Members INAMULLAH Versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Board of Revenue, K.P.K. Peshawar and 4 others Servcie Appeal No.1040 of 2010, decided on 11th November, 2010 (a) North-West Frontier Province (Khyber Pakhtunkhwa) Civil Servants Act (XVIII of 1973)

S. 10

North-West Frontier Province (Khyber Pakhtunkhwa) Service Tribunals Act (I of 1974), S.4

Transfer

Appellant who was transferred from one place of working, had challenged transfer order before Service Tribunal and alleged that within three (3) months of his transfer to his place of working, respondent managed to get himself transferred back through impugned order by using political pressure and influence

Normal tenure of posting was three years and under the declared policy of Provincial Government, but appellant was transferred within three months

Said deviation from established law/rules, would render the impugned orders of the authority and that of Appellate Authority invalid and nullity in the eyes of law

Said transfer was in violation of the Government Policy, not in the public interest, but on the recommendation of local MPA which was not sustainable in law

Service Tribunal, observed that Tribunal would not review the judgment/decisions of another Bench of the Tribunal which was legal judgment/decision of the Tribunal, which would remain intact

Case was remanded to appellate Authority to re-examine the impugned transfer/posting in the light of established law/rules and government policy. (b) Authority

'Authority' vested in a government servant, was a public interest, which must be exercised with a sense of accountability

In appropriate exercise of such authority by individuals invariably would result in not only lowering image of the institutions in the eyes of general public; but also tend to put their credibility at stake. (c) North-West Frontier Province (Khyber Pakhtunkhwa) Service Tribunals Act (I of 1974)

S. 4

Transfer and posting

Posting/transfer policy of the Provincial Government, circulated vide letter dated 15th February, 2003, had restricted discretion of the "Authority" to greater extent by obliging him to make posting/transfer in the public interest, besides prescribing normal tenure of posting as three years; and fixing months of March and July for posting/transfer

'Authority' in the present case had openly flouted the government policy; and had acted in a manner, not commensurate with his position as head of District Revenue Department

Civil servant was liable to serve anywhere within or outside the Province on any post under the Federal Government/Provincial Government or local authority under S.10 of North-West Frontier Province (Khyber Pakhtunkhwa) Civil Servants Act, 1973

Section 4 of North-West Frontier Province (Khyber Pakhtunkhwa) Service Tribunals Act, 1974 barred appeal "to a Tribunal against an order or decision of a Departmental Authority determining the fitness and otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade"

Civil servant had no vested right to be posted against a particular post or at a particular place. S.M. Attique Shah assisted by M. Taif Khan for Appellant. Sher Afgan Khattak, Addl. A.-G. for Respondents Nos.1 to

3. A. Lateef Afridi assisted by Khaled Rahman for Respondent No.5. JUDGMENT QALANDAR ALI KHAN (CHAIRMAN).

Inamullah, Patwari/appellant, lodged this Service Appeal against posting/transfer order, dated 27-4-2010 of District Officer, Revenue & Estate, Peshawar (respondent No.3), whereby, he was transferred from Patwar Halqa Tukra No.3 Patwar Halqa Sardar Ghari and private respondent No.4, Qaisar-ud-Din, was transferred in his place to PH Tukra No.3 from PH Sardar Ghari.

2. In his appeal, the appellant averred that he was transferred to PH Tukra No.3 on 30-1-2010 but within three (3) months of his transfer to the said Patwar Halqa, private respondent No.4 managed to get himself transferred back through the impugned order, dated 27-4-2010 to PH Tukra No.3 by using political pressure and influence, against which he preferred departmental appeal dated 11-5-2010, which was rejected by the Senior Member Board of Revenue, Khyber Pakhtunkhwa, Peshawar (Respondent No.2) on 24-5-2010, hence this appeal, inter alia, on the grounds that normal tenures of posting was three years under the declared policy of the Provincial Government, but he was transferred from the Halqa within three months of his transfer from a Halqa where he had already served for more than three years; that private respondent No.4 was interested to retain his posting at PH Tukra No.3, therefore, he maneouvered to get himself transferred back to the same Patwar Halqa on the basis of recommendation of the local MPA namely Atif-ur-Rehman Khalil; that the impugned transfer order was totally in violation of posting and transfer policy; that the Superior Courts have also held that posting and transfer should be in the interest of public and not on the recommendations of the MNAs/MPAs; that respondent No.3 did not apply his independent mind; and that under the policy postings/transfers are to be made in the months of March, and July, while the impugned order has been made in the month of April, without obtaining relaxation of ban from the Chief Minister.

3. The official as well as private respondent were summoned, who appeared, but private respondent No.4 later on did not appear after his initial appearance, and was placed ex parte on 29-6-2010. On the first date of appearance i.e. 18-6-2010, Tehseenullah, Patwari, moved application for his impleadment as a respondent in the case, and due to no objection of the appellant, he was impleaded as respondent No.5 in the appeal. Both the official respondents as well as private respondent No.5 resisted the appeal by filing their separate written replies/ comments.

4. In their written reply/coments respondents Nos.2 and 3, while brushing aside allegations of the appellant with regard to his transfer on political considerations, contended that recommendations of the local MPA, being representative of the public, cannot be ignored altogether. They contested claim of the appellant to the effect that his transfer was not in accordance with the Government policy, and defended the impugned order for being in line with the Government policy.

5. In his written reply/coments, private respondent No.5 vehemently resisted the appeal by claiming the same result of collusion between the appellant and private respondent No.4 on the ground that he had filed Appeal No. 101 of 2010 against private respondent No.4, which was accepted and in order to frustrate order/decision of the Tribunal in the said appeal, the instant appeal has been lodged. The respondent further contended that private respondent No.4 also moved application for setting aside ex parte proceedings against him, but his application was rejected and there-after he and appellant in the present appeal joined hands to frustrate judgment of the Tribunal in his favour by moving appeals and applications and securing stay orders both from the department and the Tribunal.

6. We have heard arguments of the learned counsel for the appellant, A.A.-G. and learned counsel for private respondent No.5 and have perused the record.

7. Before proceeding to examine the respective claims/contentions of the parties we are constrained to observe at the very out set that the department i.e. Board of Revenue, and particularly the District Officer (R&E) Peshawar (respondent No.3), have played a dubious and questionable role in the whole affair because the respondent not only issued orders in succession, with brief intervals, not on the basis of his independent judgment or in accordance with the rules or Government policy, but on the directions/recommendations of either SMBR or the local MPA; but also deliberately concealed his subsequent orders from the Tribunal at the time of submission of his written reply/ comments along with the SMBR in earlier decided appeal, which created all this mess. Had he acted according to the rules, while applying his independent mind, without succumbing to political pressure and influence, there would probably have been no cause of grievance to any one. Needless to say that 'Authority' vested in a government servant is a public trust, which must be exercised with a sense of accountability in this world and the world hereinafter. The inappropriate exercise of such authority by individuals invariably result in not only lowering image of the Institutions in the eyes of general public but also tend to put their credibility at stake. We must not overlook role of such like individuals in bringing bad name to the country in general and the province in particular, as allegations of bad governance and corruption are too glaring to be ignored. Through his questionable conduct, the DOR has proved that he has scant regard for the rules and Government policy and also lacks the courage to withstand pressure. His conduct, as such, has left much to be desired.

8. We would also like to observe that all the transfers by the same 'Authority' whether that of the appellant or private respondents, have been made within the radius of few kilo meters in Peshawar. Question arises whether they are the only honest and efficient Patwaris in the Revenue Department to be accommodated in such an extraordinary way and also whether there is dearth of honest and competent Patwaris in Peshawar District. The discretion of the Authority in the matter of postings/transfers must be exercised in a manner which encourages honest and competent civil servants on the one hand and discourages the dishonest and inefficient government servants on the other; but we have, all along, observed the reverse.

9. It may also be observed that the posting/transfer policy of the Provincial Government, circulated vide letter dated 15th February, 2003, has restricted discretion of the 'Authority' to greater extent by obliging him to make posting/transfer in the public interest, besides prescribing normal tenure of posting as three years, and fixing months of March and July for posting/transfer. The 'Authority' in the instant case has openly flouted the Government policy and has acted in a manner not commensurate with his position as Head of the District Revenue Department.

10. Needless to say that a civil servant is liable to serve anywhere within or outside the Province on any post under the Federal Government /Provincial Government or Local Authority under section 10 of the N.-W.F.P (Khyber Pakhtunkhwa) Civil Servants Act, 1973. Additionally, section 4 of the N.-W.F.P (Khyber Pakhtunkhwa) Service Tribunals Act, 1974 bars appeal "to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade." As such, it is not a vested right of a civil servant to be posted against a particular post or at a particular place.

11. We entirely agree with the learned counsel for private respondent No.5 that judgment/decision in favour of private respondent in his Appeal No.101 of 2010 which according to the learned counsel has attained finality as no appeal has been lodged against the said judgment/decision in the august Supreme Court of Pakistan and application for setting aside ex parte proceedings by the private respondent in that appeal and private respondent No 4 in this appeal has also been rejected, cannot be reviewed in this appeal. We may clarify that larger Bench, also including a learned Member of the Bench which decided Appeal No.101 of 2010, was constituted as dispute in both the appeals was with regard to the same post/position and judgment/order of the said Bench was required to be taken into consideration.

12. Adverting to the instant appeal, we have observed clear deviation from established law/rules, which would render the impugned orders of the Authority, dated 27-4-2010 and that of the Appellate Authority, dated 24-5-2010 invalid and nullity in the eyes of law. As observed above, the impugned order, dated 27-4-2010 has been made within three months of the earlier transfer/posting order in violation of the Government policy, not in the public interest, but, admittedly, on the recommendation of local MPA, as is evident from letter of the MPA, dated 23-4-2010. Similarly, the Appellate Authority (Respondent No..2) acted in arbitrary manner by writing 'rejected' on the departmental appeal of the appellant without furnishing any reason for the rejection order, thereby violating the mandatory provision of section 24-A, (2) of the General Clauses Act, 1897. The impugned orders, as such, are not sustainable in law.

13. However, since we are not here to sit on review on the judgment/decision of another Bench, which is legally judgment/decision of the Tribunal, and which, as such, will remain intact; therefore, we would rather send back/remand departmental appeal of the appellant to the Appellate Authority (Respondent No.2) to re-examine the impugned transfers/postings in the light of established law/rules and Government policy as well as above observations, and pass a speaking order, with reasons, in accordance with the above referred law/rules. The SMBR should also look into the conduct of the DOR in the light of the above findings and form his independent opinion whether the incumbent is suitable/fit for the job. We need not stress that the SMBR should independently determine suitability of a Patwari for this particular post keeping in view his service record, honesty and efficiency in order to rectify the wrongs committed earlier and in order to restore confidence of the general public in the Institution, which is, unfortunately, touching the lowest ebb of its credibility. The appeal is disposed of accordingly, with no order as to costs. H.B.T./3/KPKST Case remanded. 2011 P L C (C.S.) 1109 [Supreme Court of Pakistan] Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ ACCOUNTANT-GENERAL SINDH, KARACHI and 3 others Versus SHARIF AHMED Civil Petition No.856-K of 2003, decided on 17th August, 2004. (On appeal from the judgment dated 24-9-2003 of the High Court of Sindh, Karachi, passed in Revision Application No.218 of 2002). Constitution of Pakistan

Art. 185(3)

Civil service

Suit for damages/compensation

Suit was decreed by the Trial Court

Appeal filed by defendants against judgment of the Trial Court was dismissed as time-barred

Said order passed by the Appellate Court was challenged by the defendant in revision before the High Court, which was also dismissed by the impugned order

Counsel for the defendant had mainly contended that the plaintiff having received the entire claim of his G.P. fund, was not justified to file suit for compensation and Appellate Court as well as the High Court had erred in appreciating the explanation furnished for condoning delay of ten months in filing appeal before the Appellate Court, but non-suited defendants only on technical ground

Appeal filed by the defendants before Appellate Court on the face of it was barred by ten months and was rightly dismissed by the Appellate Court on that ground

Finding no justifiable reason, High Court also rightly maintained the decision of the Appellate Court

Concurrent finding recorded by two courts below could not be interfered with by Supreme Court

Petition for leave to appeal was dismissed. Akhlaq Ahmed Siddiqui, Advocate Supreme Court/Advocate-on-Record for Petitioners. Nemo for Respondent. Date of hearing: 17th August, 2008. JUDGMENT ABDUL HAMEED DOGAR, J.

Petitioners seek leave to appeal against the order dated 24-9-2003 passed by a learned Judge in Chambers of High Court of Sindh, Karachi, whereby Revision Application No. 218 of 2003 filed by petitioners was dismissed in limine.

2. The facts in brief giving, rise to the filing of instant petition are that respondent Sharif Ahmed Sub-Inspector of Sindh Police was sent on deputation to Federal Investigating Agency till 20-9-1979 from where he was, repatriated and retired as Deputy Superintendent of Police on 5-2-1983. Since he did not succeed in getting his G.P. Fund from petitioner No.1 Accountant-General of Sindh for about ten years, as such, he invoked the constitutional, jurisdiction of the High Court of Sindh by filing Constitution Petition No. D-2841 of 1993 which was allowed and petitioner No. 1 was directed to pay G.P. Fund within thirty days which was accordingly paid.

3. Respondent however, feeling still not satisfied, filed suit for damages/compensation to the tune of Rs.3,00,000 on 1-12-1994 against petitioners which was decreed vide judgment dated 13-12-2000 by learned 3rd Senior Civil Judge, Karachi South. Petitioners preferred appeal against the said judgment which was dismissed as time-barred vide order dated 6-8-2002 by 3rd Additional District Judge, Karachi (South). The said order was challenged in revision application before the learned High Court of Sindh which too was dismissed vide the impugned order.

4. We have heard Mr. Akhlaq Ahmed Siddiqui, learned Advocate Supreme Court for the petitioners and have gone through the record and proceedings of the case in minute particulars.

5. Learned counsel for the petitioners mainly contended that respondent in fact had received the entire claim of his G.P. fund, as such, was not justified to file suit for compensation. According to him, the learned Appellate Court, as well as the learned Revisional Court, had erred in appreciating the explanation furnished for condoning the delay of ten months in filing of appeal but non-suited petitioners only on technical ground.

6. The appeal filed by the petitioners on the face of it was barred by ten months and was thus rightly dismissed on that ground. Finding co justifiable reason, the learned High Court also rightly maintained the decision of the Appellate Court.

7. Thus, there being concurrent findings recorded by the two Courts below on the above aspect, we do not find any justification to interfere with the same.

8. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused. ?/A-15/SC Leave refused.