2007 PLP (C (PLC(CS))

EJAZ AFZAL KHAN, J.

Ikramullah, petitioner herein, has flung a challenge to the order dared 2-12-2006 of the District Officer Revenue and Estate Peshawar, whereby he has been transferred from Landi Yarghajao to Tarnab.

2. Learned counsel appearing on behalf of the petitioner contended that a look at the impugned order would clearly indicate that the petitioner was transferred at the instance of the Minister for` Revenue who has no powers whatever to interfere with the smooth sailing of the Department if seen in the light of the provisions contained in Articles 129 and 130 of the Constitution of Islamic Republic of Pakistan, 1973 and the Rules of Business framed thereunder and that it being motivated by mala fides and based on political considerations is liable to be struck down. Such order, the learned counsel added, is all the more liable to be struck down, when it is also violative of rule 25 of North-West frontier Province District Government Rules of Business, 2001 framed under the North-West Frontier Province Local Government Ordinance, 2001.. The learned counsel to support his contention relied on the judgment rendered in the cases of Gulzar Ahmad v. District Officer Revenue and Estate Peshawar and others in Writ Petition No.1819 of 2006, decided on 22-11-2006 and Himayatullah Mayat v. Government of N.-W.F.P, through Secretary, Schools and Literacy Department Peshawar and 5 others PLD 2006 Pesh.

119. The learned counsel next contended that though resort can be had to the departmental authority anti then to the Service Tribunal but that process being too tedious and time consuming eau neither be termed as alternate nor efficacious.

3. As against that, the learned counsel appearing on behalf of respondent No.4 contended that transfer and posting being a matter relating to the terms and conditions of service, falls within the domain of the Service Tribunal, there Pore, this Court while exercising jurisdiction under Article 199 of the Constitution could not interfere therewith.

4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.

5. Though the impugned order appears to have been made with the approval of the Minister for Revenue, but it per se would not prove that it was motivated by mala fides and based on considerations as could be termed political. In case it be so, it being essentially a question of fact cannot be inquired into by this Court in the exercise of its constitutional jurisdiction. Disputes as to transfer and posting of civil servants being related to the terms and conditions of service fall within, the exclusive domain of the Service Tribunal Orders of transfer and posting motivated by mala fides and political considerations, too, eau be deals with, in the first instance, by the Departmental Authority and then by the Service Tribunal. So can be the ones passed violation of the Rules of Business framed under the Constitution or the Local Government Ordinance. Jurisdiction of this Court in view of the provisions contained in Article 212(2) of the Constitution is barred. In the cases of Miss Rukhsana Ijar 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 it has been consistently .held by the Honourable Supreme Court 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 in view of an express bar envisaged by Article 212(2) of the Constitution. In the case of Secretary Education, N.-W.F.P. Peshawar and 2 others v. Mustamir Khanand and vlpther 2005 SCMR 17, the Honourable Supreme Court held in no uncertain terms that where transfer is motivated by mala fides or is based on extraneous considerations to accommodate some blue-eyed chap, it being justifiable, can well be taken to the Service Tribunal, which has the exclusive jurisdiction to inquire into such matters. 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 similar proposition held as under:-- "It is 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 could 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."

6. 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 functions 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 hierarchical 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 risk of disciplinary action.

7. Another paragraph also merits verbatim reproduction, which road's 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 opinion 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 as 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 note 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 interest. We are constrained to observe that such unconcerned and lukewarm attitude on the part of a Head of a Government 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 future guidance. With these observations, this petition stands dismissed as not maintainable."

8. 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. S. M.B.R. 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 Khan 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, Abdul Qadir v. Government in Writ Petition No.561 of 2006, 12-5-2006, Nawab Gul v. S. M.B.R. in Writ Petition No.1033 of 2006, decided on 18-7-2006, Sardar Ali v. Director Schools in Writ Petition No.942 of 2006, decided on 13-7-2006 and Muhammad Ilyas Khan v. District Revenue and Estate Officer and others in Writ Petition No.835 of 2007, decided on 23-5-2007.

9. The case of Gulzar Ahmad v. District Officer Revenue and Estate Peshawar and others. in Writ Petition No.1819 of 2006, decided on 22-1 1-2006 riled by the learned counsel for the petitioner being per incurium and even sub-silentio would not advance the case of the petitioner, For the, precedent per incurium being rendered in derogation of the Statute and the precedent sub-silentio being not sully argued with reference to the relevant law would not have binding force. The case of Himayatullah Mayat v. Government of N.-W.F.P. through Secretary, Schools and Literacy Department Peshawar and 5 others PLD 2006 Pesh. 119, too would not advance the case of the petitioner, when it being distinguishable on legal place as well as factual, has no perceptible relevance to the case in hand.

10. Having thus, considered, we do not feel persuaded to interfere with the impugned order. However, we by following the dictum rendered in the case of Muhammad Avis 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, if so advised, asked for interim relief before the departmental authority. This writ petition thus, stands disposed of. H.B.T./133/P Order accordingly.