2007 PLP (C (PLC(CS))

EJAZ AFZAL KHAN, J.

Petitioner through the instant petition has impugned the order, dated 19-3-2007 of the District Officer Revenue and Estate Peshawar, whereby the order, dated 13-3-2007 transferring and posting him as Patwari Halga, Sardar Garhi, was withdrawn.

2. Learned counsel appearing on behalf of the petitioner contended that if the impugned order and the orders preceding it are looked at in their proper perspective, they appear to be motivated by the mala fides and political considerations as such they have to be struck down. The learned counsel to support his contention placed reliance on the judgment rendered in the case of Gulzar Ahmad v. District Officer Revenue and Estate Peshawar and others in Writ Petition No.1819 of 2006 decided on 22-11-2006.

3. We have gone through the available record carefully and considered the submissions of the learned counsel for the petitioner.

4. It has been consistently held by the Honourable Supreme Court in the cases of Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167, Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169 and Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 SCMR 170, that transfer and posting being related to the terms and conditions of service would fall within the exclusive domain of the Service Tribunal and that the High Court cannot step in to interfere therewith under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Even the order motivated by mala rides and passed on political considerations to accommodate sonic blue-eyed-chap, being justifiable can be challenged before the Service Tribunal which has the exclusive .jurisdiction to inquire into such matters. The case of Secretary Education N.-W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17 may well be referred in this behalf. In the case of Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54, the Honourable Supreme Court while dealing with a similar profosition reiterated the same view by holding as under:-- "It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and' rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court scald have been dilated upon in constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without ,jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full .jurisdiction to interfere in such-like matters. "

5. In the case of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530, the Honourable Supreme Court despite condemning the phenomenon of passing orders of transfer and posting of civil servants on the dictates of the elected representatives, declined to interfere therewith by holding as under:-- "We need not stress here 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 expected 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 1'uuctions in accordance with the law. Succumbing to each and every order or 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 to the plane of hierarehical discipline. It hardly needs to be mentioned that 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 risks of disciplinary action."

6. Another paragraph also merits verbatim reproduction, which reads as under:-- "A reading of Rule 21(2) with Schedule V of the Rules of Business (ibid), makes it clear that the transfer of a Section Officer/Under Secretaries and other officers of the equivalent rank within the department is to be done by the Secretary of that Department. Rule 21 of the Rules of Business, which deals with power of posting, promotion and transfer of Government servants does not contemplate exercise of these powers by the Minister. The normal period of posting of a Government servant at a station, according to the above referred policy decision of the Government, is 3 years which has to be followed in the _ordinary circumstances, unless for reasons of exigencies of services mentioned in the aforesaid policy of Government, a transfer before expiry of 3 years' period becomes necessary in the ofinion of competent Authority. The transfer orders in the present case, therefore, could neither be justified on the plane of policy directive of Government referred to above, nor they were sustainable on the language of Rule 21(2) read with Schedule V of the Rule of Business, (ibid). We are in no doubt that if the transfer orders in the case before us would have been made in accordance with the policy directives of the Government referred to above and power was exercised by the competent Authority as contemplated by Rule 21(2) read with Schedule V of the Rules of Business, (ibid) there would have been no room for manoeuvring by the officers affected by such transfer. The fact that the transfers were made in violation of policy directive of the Government, which has the status of a Rule and provisions of Rule 21(2) (ibid),. were not followed strictly, opened the door for the Government servant concerned to bring in outside influences to obtain the. desired transfers. We are also sorry to cote that the Secretary LG&RD, neither resisted these unethical and undesirable moves of his subordinates nor he pointed out to the Honourable Minister incharge, that the transfer orders made by him from time to time in respect of various officers of his department were neither in conformity with the declared policy of Government nor these transfer orders conform to the provisions of Rule 21(2) of the Rules of Business, (ibid). It was the duty of the Secretary LG&RD to .have pointed out to the Minister concerned the extent of his authority in such matter, besides bringing to his notice that such frequent transfer of a Government servant could neither be justified as the exigencies of service nor it could be described in the public intcr6st. We are constrained to observe that such unconcerned and lukewarm attitude on the part of Head of a Government Department is not expected to promote discipline or efficiency in the department. On the contrary such attitude may have a demoralizing effect on his subordinates encouraging to seek intervention and favours of outside agencies, which may ultimately adversely affect the overall discipline and efficiency in the department. We, therefore, expect that the guidelines mentioned in the policy directives of the Government referred to above and the provisions of Rule 21 of the Rules of Business, (ibid), will be kept in view by all concerned while dealing with the transfers of Government servants. The office is directed to scud a copy of this judgment to the Government of Punjab for circulating it to all its departments, for further guidance. With these observations, this petition stands dismissed as not maintainable."

7. We, too, by respectfully following the above quoted dictum of the Honourable Supreme Court condemn the orders of transfer and posting of the civil servants passed by the bureaucrats on the dictates of the elected representatives or on account of mala fides or political considerations, but when redress can be had by an appeal before the Departmental authority and then before the Service Tribunal, on proof of such facts, we would not like to interfere with such orders in the exercise of our extraordinary equitable discretionary constitutional .jurisdiction. This is what we held in the cases of Bakhtiar Ahmad v. SMBR in Writ Petition No.1167 of 2006, decided on 3-8-2006, Professor Rehana Matinllah v. Chief Secretary and others in Writ Petition No.1496 of 2006, decided on 12-2-2006, S. Mansoor Hussain Shah v. Secretary LG/RD in Writ Petition No.1153 of 2006, decided on 3-8-2006, Waqil Khan v. Government of N.-W.F.P. in Writ Petition No.1114 of 2006, decided on 28-7-2006, Pervez Khau v. Additional Chief Secretary FATA in Writ Petition No.2261 of 2006, decided on 14-2-2007, Seerat Bibi v. Government of N.-W.F.P. in Writ Petition No.1559 of 2006, decided on 5-10-2006, Abdal Qadir v. Government in Writ Petition No.561 of 2006, 12-5-2006, Nawab Gul v. SMBR in Writ Petition No.1033 of 2006, decided on 18-7-2006 and Sardar Ali v. Director Schools in Writ Petition No.942 of 2006, decided on 13-7-2006.

8. The case of Gulzar Ahmad v. District Officer Revenue and Estate Peshawar and others in Writ Petition No.1819 of 2006, decided on 22-11-2006 cited by the learned counsel for the petitioner would not be relevant to the case in hand, when, it is distinguishable on legal as well as factual place.

9. Having thus, considered in this background, we do not feel persuaded to interfere with the impugned order. However, we by following the dictum rendered in the case of Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 instead of dismissing it, treat it as an appeal before the departmental authority and send it thereto for decision in accordance with law within one month. The petitioner may, ii' so advised, pray for the interim relief before the same forum. This writ petition thus, stands disposed of. H.B.T./132/P Order accordingly.