1996 PLP (C (PLC(CS))

ABDUL RAZZAQ A. THAHIM (CHAIRMAN). ‑‑‑‑Appellant Mr. Taj Muhammad Baloch joined service as Assistant on 1‑1‑1973 in the Directorate General of Ports and Shipping. He was appointed as Assistant Shipping Master on 25‑11‑1974 in (B‑16) by way of direct recruitment. He was promoted as Deputy Shipping Master (B‑16) with effect from 4‑11‑1986. The grade of Assistant Shipping Master and Deputy Shipping Master is same, i.e. (B‑16). It is stated that the appellant also held the acting charge of the post of Shipping Master. On the introduction of National Pay Scales in 1972, the post of Shipping Master was placed in (B‑18) while the post of Assistant Shipping Master and Deputy Shipping Master continued to remain in B‑

16. In the year 1977, the post of Shipping Master, was upgraded and placed in (B‑19). According to the appellant, he tried his best to get the post of Deputy Shipping Master upgraded to (B‑18) which was later on approved but notification has not been issued. He also approached the High Court for getting the decision of upgradation of the post of Deputy Shipping Master implemented. The upgradation was under process, but the appellant was transferred from the post of Deputy Shipping Master (B‑16) to the Department of Shipping Control as Assistant Controller of Shipping (B‑16), with immediate effect, vide Notification, dated 6th February, 1994, made under section 10 of the Civil Servants Act, 1973. It gave cause of action to the appellant, and he accordingly made a departmental appeal on 6‑3‑1994, and failing to get any response, he filed this appeal before the Tribunal, with the prayer to set aside the impunged Notification, dated 6‑2‑1994, and to repatriate the appellant to the post of Deputy Shipping Master with all consequential and back benefits.

2. Mr. Manzoor Ali Khan, the learned counsel for the appellant argued the appeal at length contending that the appellant is regulated under 1951 Rules and according to which the post of Shipping Master is to be filled by an incumbent holding the post of Deputy Shipping Master, and for the upgradation of the said post to B‑18, the appellant had been endeavouring and to deprive him of that right, his transfer has been made under section 10 of the Civil Servants Act, 1973, and it was not a transfer simpliciter but with mala fide intention. It is also argued that according to the objections filed by the department, the facts in the background of the transfer are that there were some complaints against the appellant and it was under the orders of the Chairman and Minister that he was made to suffer as a punishment by transferring him from the post of Deputy Shipping Master to that of Assistant Controller Shipping, which could not be done as under the rules, transfer is not included in the penalties under the E&D Rules. It was vehemently argued that it was not a transfer in the public interest but with mala fide intention. The learned counsel for the appellant relied on 1979 PLC (C.S.).437 and 1993 SCMR 1533 in support of his contention that in such circumstances, the Tribunal has jurisdiction to interfere with the impugned transfer order; and that discretion exercised by the competent Authority was not judiciously exercised, and that the order be set aside.

3. The respondents have filed objections wherein it has categorically been stated that the transfer of the appellant was made consequent to certain complaints and the inquiry report conducted by the Chairman, National Shipping Corporation, and the transfer of the appellant was the outcome of those complaints and to improve the efficiency of the department, the appellant was transferred from the post of Deputy Shipping Master to that of Assistant Shipping Controller, and there is no mala fide. In paragraph 9 of the objections, it, has been stated that as and when the said post of Deputy Shipping Master is upgraded, the incumbent will be considered.

4. Mr. Niaz Ahmad Khan, the learned Standing Counsel reiterated the stand taken by the department and submitted that the tribunal has got jurisdiction to adjudicate upon the matter as transfer, according to the Civil Servants Act, 1973, is a term and condition of service of the civil servant. He submitted that transfer of the appellant was in the public interest and not with mala fide intention.

5. The facts with regard to appointment of the appellant as Assistant Shipping Master and promotion as Deputy Shipping Master (B‑16) in the Ports and Shipping are not disputed by the respondent department. The only grievance in this appeal is that the appellant made all out efforts in getting the post of Deputy Shipping Master upgraded to B‑18 and to some extent he succeeded but notification therefore was not issued. These facts have been admitted by the respondents also: But the appellant was transferred under section 10 of the Civil Servants Act, 1973 from the post of Deputy Shipping Master to that of Assistant Controller of Shipping in the Department of Shipping Control, which is a separate department under the Ports and Shipping Wing. Section 10 is reproduced as under: "

10. Posting and transfer. ‑‑‑Every civil servant shall be liable to serve anywhere within or outside Pakistan, in any post under the Federal Government or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve." The above‑quoted provisions of section 10 provide that no doubt, a civil servant is liable to serve anywhere in Pakistan but his terms and conditions of service as to his pay shall not be less favourable than those which he was enjoying prior to his transfer. As stated above, the department has admitted to the extent that upgradation of the post of Deputy Shipping Master is under process and that appellant being Deputy Shipping Master and being incumbent of that post, is eligible and there is no provision that Assistant Shipping Controller could be considered for promotion, therefore, his transfer as Assistant Shipping Controller has put the appellant into a disadvantageous position, and as such, his transfer is contrary to the provisions of section 10 of the Civil Servants Act, 1973. We have also gone through 1951 Rules according to which promotion to the post of Deputy Shipping Master is made from the Assistant Shipping Masters and to that of Shipping Master from the Deputy Shipping Masters, and the nomenclature of the post of Assistant Shipping Controller nowhere figures in the said Rules, meaning thereby that in case the appellant is transferred to the post of Assistant Shipping Controller, he will have to forego his right for further advancement in the cadre of Shipping Master; and similarly he will also be deprived of the benefit of upgradation of the post of Deputy Shipping Master as and when the notification is issued. On our query, during the course 'of arguments, it was stated by the departmental representative that the posts of Assistant Shipping Controller and Deputy Shipping Master are not interchangeable, therefore, the fact is that transfer of the appellant is outside his cadre and has been made to an ex‑cadre post. Therefore, we have to accept the contentions of the appellant that he has been transferred from the post of Deputy Shipping Master to deprive him of the benefit of upgradation, as on transfer he no more remains the incumbent of the said post. But the department in their comments have stated that as and when the post of Deputy Shipping Master is upgraded, the 'incumbent' will be considered for upgradation and according to them, it is the appellant, and this fact was also admitted at the Bar by the learned standing counsel, Mr. Niaz Ahmad Khan, and we accept his statement. In view of the abovementioned facts, we are of the view that transfer of the appellant as Assistant Controller Shipping is out of cadre and contrary to Appointment and Promotion Rules; it is neither a transfer simpliciter nor was it made in the public interest, and there is force in the argument of the appellant that it is an effort to deprive him of the benefit of upgradation and promotion prospects.

6. For the foregoing reasons, we accept the appeal, set aside the impugned order, dated 6th February, 1994 and restore the appellant to his position of Deputy Shipping Master (B‑16) with all consequential benefits. A.A./1090/Sr.F Appeal accepted.