2006 PLP (C (PLC(CS))

MUHAMMAD JAHANGIR ARSHAD, J.

The petitioner who is Patwari in the Revenue Department and is aggrieved of his transfers in succession within a period of last less than two months through the instant Constitutional Petition has prayed for setting aside his transfer order dated 3-4-2006.

2. The brief facts of the case are that an order for mutual transfer between Muhammad Ayub Patwari Halqa 65-A/G.D and Ghulam Farid Patwari Halqa 94/9-L was passed by the Deputy District Officer (Revenue), Sahiwal on 15-11-2005. Similarly the petitioner Muhammad Yar was transferred from Tibi Jay Singh to Halqa 95/6-R against a vacant post vide order dated 15-2-2006. Later on the Executive District Officer (Revenue), Sahiwal vide order dated 25-2-2006 modified the earlier order dated 15-2-2006 and adjusted, Muhammad Yar petitioner in Halqa 96/9-L. On 3-3-2006 the Executive District Officer (Revenue), Sahiwal directed that earlier order dated 15-2-2006 adjusting the petitioner at 95/6-R to remain in abeyance till further orders. Thereafter, the District Co-ordination Officers, Sahiwal on 14-3-2006 in compliance with the telephonic directions of Sardar Sher Afgan, Additional Secretary to Chief Minister, Punjab Lahore transferred Ghulam Farid Patwari from Chak No.65.G.D to Chak No.95/6-R (where the petitioner had been posted). Finally through order dated 3-4-2006 the Executive District Officer (Revenue), Sahiwal again directed the petitioner to be adjusted at Tibi Jay Singh against a vacant post from where he was earlier transferred vide order dated 15-2-2006. The abovementioned series of adjustments! posting/transfers disturbed the E.D.O (R), Sahiwal who vide Letter No.1380.O.S-E.D.O(R) dated 18-3-2006 sent his grievance to the Additional Secretary (Admn), Chief Minister's Secretariat Punjab. Lahore through the District Co-ordination Officer, Sahiwal complaining the defiance/violation of tenure policy issued by the Government of the Punjab. The petitioner is now aggrieved of the order dated 3-4-2006 whereby he has again been transferred/posted/adjusted as Patwari Halqa Tibi Jai Singh.

3. Prima facie the jurisdiction of this Court in the matters of postings/transfers is ousted by the bar obtained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 and this Court despite finding the abovementioned series of orders violative of the transfer policy as well as the law declared by the Hon'ble Supreme Court of Pakistan in the case "Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others" (PLD 1995 Supreme Court 530), is not in a position to pass any final order but is compelled to disapprove the interference by Sardar Sher Afgan, Additional Secretary (Admn.), Chief Minister's Secretariat Punjab, Lahore by way of issuing/conveying telephonic directions to subordinate authorities for making transfers/ postings/ adjustments of his own choice, may be under the directions of the Chief Minister of the Punjab. The Hon'ble Supreme Court of Pakistan in Zahid Akhtar's case (PLD 1995 S.C. 530) referred to above, expressly held that: "Government servant should comply only with those orders/directions of his superior which were legal and within his competence

Compliance of illegal or an incompetent direction/order could neither be justified on the plea of same having been issued from superior authority nor same could be defended on the ground that non-compliance thereof, could have exposed concerned Government servant to the risk of disciplinary action." It was further held in the said judgment that: "Government servant's repeated transfers from one place to another in a span of few months by the order of Minister concerned and carrying out of such orders obediently by the Secretary of the Department concerned highly unethical and undesirable." 4.? This Court has failed to lay its hands on any law, rules, policy or directive, authorising the Chief Minister to interfere in the matters of transfers/posting/adjustment of petty Government servants at Patwari level, hence, neither the Chief Minister should have issued such oral directions nor the same should have been conveyed to the lower authorities by a person like Sardar Sher Afgan, Additional Secretary (Admn), Chief Minister's Secretariat Punjab, Lahore causing disturbance to the Executive District Officer (Revenue), Sahiwal who was compelled to address the letter dated 18-3-2006 mentioned above bringing to the notice of the Chief Minister that his oral directions were even against the tenure policy of the Government of the Punjab.

5. Prima facie, the oral directions issued by the Chief Minister? Punjab and the act of Sardar Sher Afgan, Additional Secretary (Admn) conveying such oral directions of the Chief Minister telephonically to the District Co-ordination Officer, Sahiwal and further the said D.C.O. directing the Executive District Officer (Revenue), Sahiwal for making adjustment/transfer/posting etc. without application of independent mind, is in clear disregard as well as violation of the above referred judgment of the Hon'ble Supreme Court of Pakistan and this Court in the case "Abdul Rehman Shaukat v. Sardar Muhammad Akram Javed, District Officer (Revenue), Kasur (PLD 2004 Lahore 815) held as under:

"Everybody is bound to obey the command of the Constitution and to act in accordance with law i.e. to act within the framework of law and Constitution, All organs of the State are under the statutory duty to act in aid of the law declared by the Supreme Court and not to flout the same. The right law declared by the judgment of Supreme Court cannot be overridden or nullified by an executive." The judgment of the Hon'ble Supreme Court referred to above i.e. Zahid Akhtar's case (PLD 1995 SC 530) is binding on all the authorities in terms of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973.

6. It would not be out of place to mention here that in the instant case the Executive District Officer (Revenue), Sahiwal was so fed up with the oral directions issued by the Chief Minister's Secretariat and conveyed by Sardar Sher Afgan, Additional Secretary (Admn), telephonically, that the E.D.O. (R) had to disclose it in his letter to the Additional Secretary (Admn) that on the request of Haji Jalal Din Dhakhu the concerned M.P.A, Ghulam Farid Patwari was adjusted/posted as Patwari Halqa 95/6-R vide Letter No.1314/OS.EDOR dated 25-2-2006 against the tenure policy and this letter amounts to giving vent to his sentiments by Execution District Officer (Revenue) against the political interference in the matters of adjustment/postings of ?Patwaries.

7. In view of the above, to strike balance and to remind the Executive authorities of their duties, it is deemed appropriate to send copy of this order along with writ petition and its annexures to the Chief Secretary to the Government of Punjab, Lahore who shall place the same before the Chief Minister Punjab and the Chief Minister shall ensure that not only the transfer policy issued by the Government but also the law declared by the Hon'ble Supreme Court in Zahid Akhtar's case (PLD 1995 SC 53) is strictly adhered to and the matters of posting/transfer/adjustment of petty Government servants like the present one, are dealt with strictly in accordance with law and the persons incharge/competent in such like matters should be given free hand to decide the question of posting/transfer/adjustment, etc. per rules and regulations independent of any political pressure.

8. With above observations and directions this Writ Petition is disposed of. F.B./N-301/L?????????????????????????????????????????????????????????????????????????????????????? Order accordingly.