2024 PLP (C (PLC(CS))

GUL HASSAN TAREEN J.

Through this Constitution Petition, the petitioner seeks the following prayer: "a. To declare that the office order/notification No. 22 (1)- Admn. (P-1)/NHA/458 dated 17th May, 2022 to the extent of petitioner (at serial No. 2) is illegal, void and issued in excess of authority and contrary to law and rules and is to be declared of no legal effect; b. To set aside the office Order/Notification No. 22 (1)- Admn. (P-1) / NHA/458 dated 17th May, 2022 to the extent of petitioner and he be allowed as per regulations to work as Deputy Director ((Maint) Ormara, N-10, Balochistan till his retirement. c. To declare that the impugned Notification No.22 (1)- Admn. (P-1) / NHA/458 dated 17th May, 2022 is passed in complete contravention and violation of this Hon'ble Court and Apex Court's judgments, as such, of no legal effect. d. Any other relief which this Hon'ble Court deem fit may also be awarded to the petitioner."

2. The learned Mr. Sultan Khalid, Advocate appearing on behalf of the petitioner states that on 7th September, 2021, the petitioner was transferred to the post of Deputy Director (Maint) Ormara No. 10, however, again on 17th May, 2022, he was transferred to the post of DD (Const) M-9 NHA, Karachi (OPS), just within a period of eight (08) months. He states that this frequent transfer and posting is violation of the dictum, laid down by Hon'ble Supreme Court in the case of Syed Muhammad Akhtar Naqvi v. Federation of Pakistan, (PLD 2013 SC 195). He states that the impugned transfer order is also violation of regulation 4.10 NHA Administrative Regulations, 2002 ("Regulations, 2002"). Concluding his submissions, the learned counsel states that the petitioner is of fifty seven years old as such, the impugned transfer order is also violation of regulation 4.12 (3) of the Regulations, 2002.

3. The learned Mr. Najeebullah Kakar, representing the respondents Nos. 2 and 3, has vehemently opposed this petition on the ground that the petitioner had to relinquish the charge immediately under clause 4.14(i) of the regulations, 2002 which he failed, hence committed misconduct. He stressed that transfer and posting is purely an administrative matter and while passing of the impugned transfer order, the respondents Nos. 2 and 3, had not committed any illegality. He also placed reliance on his written reply and annexures.

4. We have heard the learned counsel for the parties and gone through the referred regulations and the case law citied at bar. Section 32, Chapter VII, the National High Way Authority Act, 1991, (amended in 2001) conferred powers upon the Authority to make regulations, not in consistent with the rules, on all matters for which regulations are expedient. The Authority made regulations called NHA Administrative Regulations, 2002. The regulations referred to by the petitioner's counsel are reproduced hereunder: "4.10: The normal tenure of posting of officers and staff in NHA shall be three years on same post, which can be extended for further two years on the recommendations of Member concerned. 4.12(3): As far as possible, an employee of 57 years or more age shall be posted to the nearest station of native town and shall not be transferred from one station to the other."

5. The impugned transfer order and the written reply of the respondents Nos. 2 and 3 do not demonstrate any special circumstances, due to which, the Regulations Nos. 4.10 and 4.12 (3) were deviated and bypassed. The section 24-A, the General Clauses Act, 1897 imposes a mandatory obligation upon every executive and public authority, that the order passed by such authority must not be brief and non-speaking. The respondents Nos. 2 and 3 have not placed on record any document which may transpire that prior to passing of the impugned order, the transferring authority had deliberated upon the transfer and posting of the petitioner. Though the Regulation 4.10, does not prescribe a minimum period during which an employee/officer of NHA must serve at his post, however, it does not mean that the Authority without assigning any reason can move an officer from the place he was posted just after eight (08) months or subject the officer to successive transfers in a short period for, this would amount to punishment. Such transfers also affect the public interest and result in the wastage of public resources and constitute bad governance. We place reliance on the case of Khan Muhammad v. Chief Secretary, Government of Balochistan, Quetta and others, published in 2018 SCMR 1411. The Hon'ble Supreme Court of Pakistan in the case of Syed Muhammad Akhtar Naqvi v. Federation of Pakistan, published in PLD 2013 SC 195, held as under: "22 (ii) Tenure, posting and transfer: When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and cannot be varied, except for compelling reasons which should be recorded in writing and are judicially reviewable."

6. The petitioner is of 57 years and is at the verge of the retirement. The regulation 4.12(3), casts an obligation upon the respondents that the employees of 57 years or more age shall be posted to the nearest station of native town and not to be transferred frequently. Hence the impugned transfer order is violation of the NHA regulations and the dictum laid down by the Hon'ble Supreme Court of Pakistan and we have no option save, to declare it illegal. Resultantly, the respondents Nos. 2 and 3 have issued the impugned office Order/Notification No. 22 (1)-Admn. (P-1)/NHA/458 dated 17th May, 2022, without lawful authority, as such, is of no legal effect, hence is set aside. The petition is accordingly allowed. SA/152/Bal. Petition allowed.