2011 PLP (C (PLC(CS))

MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN).

This appeal under section 4 of the Balochistan Service Tribunals Act 1974 has been filed by Mr. Mehboob Khan (appellant) against his transfer order dated 21-9-2010 whereby he was transferred from the post of Acting Chief Engineer Khuzdar to Acting Chief Engineer Design.

2. The relevant facts in small compass are that the appellant is Superintending Engineer (B-19) and was posted as Acting Chief Engineer Khuzdar Region. As per appellant he had been performing his duties to the best of his abilities and no complaint whatsoever in nature against him was made. It is case of the appellant that in spite of clear instructions/guidelines issued by the Government of Balochistan about the Transfer Posting Policy, the respondent No.1 with mala fides transferred him through impugned Notification dated 21-9-2010.

3. On the other hand, the respondents contested the appeal on legal and factual grounds by filing their written replies.

4. We have heard the learned counsel for the parties and perused the available record with their valuable assistance.

5. The learned counsel for the appellant Mr. Wassay Tareen, Advocate contended that the impugned order is against the law, hence not tenable. He also argued that the order in question is based on mala fides and has been passed just to accommodate influential person.

6. On the other hand learned Additional Advocate-General Balochistan Mr. Nasrullah Achakzai Advocate contended that the appeal is not maintainable being filed directly without exhausting departmental remedy and the question of transfer/posting exclusively falls within the domain/jurisdiction of the competent authority. He further contended that this Tribunal has got no jurisdiction to adjudicate upon the same.

7. We are not in agreement with the learned Assistant Advocate-General Balochistan on the ground that the appeal is not maintainable being filed directly before this Tribunal without exhausting the alternate remedy of filing departmental appeal. We are of the considered view that transfer of civil servants being part of terms and conditions of their services, would fall within exclusive jurisdiction of this Tribunal.

8. It is now settled principle of law that an order of transfer of civil servant can straight away be challenged before Service Tribunal without first exhausting the remedy of representation in the hierarchy of the department.

9. There is no cavil with the proposition that the question of transfer/posting under section 10 of the Balochistan Civil Servants Act, 1974 falls within the domain of competent authority but it is equally important to note that such discretion must not be exercised in an arbitrary or fanciful manner. Such discretion has to be exercised judiciously and in accordance with settled norms of justice, equity and fairplay. The Government is required/duty bound to exercise the discretion keeping in view the nature of duties and requisite capabilities in a fair and impartial manner and there should be no extraneous considerations. Therefore, the transfer order, if mala fide or in violation of settled law, made for extraneous consideration to accommodate some blue eyed chap, it would squarely fall within the domain of this Tribunal.

10. It is also worth mentioning that those original orders of the departmental authorities against which no appeal has been provided, have been termed as the original final orders whereas in those cases where appeal lies, the order passed in appeal is the final order. The order of the departmental authority for the transfer of the civil servant is such against which, under the said rules no departmental appeal lies before the higher authority. Therefore, in such a situation the aggrieved civil servant, if he wants to get relief, may immediately approach the administrative Court or Tribunal for redressal of his grievances.

11. Reverting to the merits of the case, it would be pertinent to mention here that the appellant is Superintending Engineer and he was posted as Acting Chief Engineer Khuzdar Region on 20th April, 2009, whereas respondent No.2 was appointed as Acting Chief Engineer Design on 2nd March, 2010. It is settled principle of law that normally a civil servant shall not be transferred from one station to another prior to completion of scribed period of tenure. Civil servants are generally permitted to complete their normal tenure in case of transfer from one place to another. Such principle has to be followed in the ordinary circumstances, unless for reasons of exigencies of services. The Government of Balochistan (Regulation-1) No.SORI-4(15)S&GAD/369-469 dated 12th March 2003 dealing with the "Transfer Posting", reads as follows:

(I) Pre-mature posting/transfer is a burden on the Government exchequer and heavy amount is incurred under the head of T.A/D.A. (IV) Frequent Posting/Transfer should be avoided. (V) A reasonable tenure of posting at a station may be fixed i.e. at least two years.

12. It is crystal clear that the impugned order is deviation from normal procedure and transfer posting policy mentioned herein above for which even reasons are not assigned. Admittedly the appellant is going to be retired within a period of 4/5 months. As such, the transfer order smacked of arbitrariness and is not tenable being passed in clear violation of transfer/posting Policy 2003.

13. For the discussion, made herein above the impugned Notification No.SCW(SOA)2-3/2010/5642-55 dated 21-9-2010 is hereby set aside and appellant will retain his earlier position. There shall be no order as to costs. H.B.T./19/BST Appeal allowed.