2007 PLC (C (PLP)

SALIM KHAN, J.-Through this writ petition, Mr. Amjad Khan petitioner submitted that he was working as junior clerk in Works & Services Department since 3-4-1988, that he was kept posted in District Abbottabad under the control of District Government Abbottabad, w.e.f. August, 2001, and that he has been transferred to Mansehra by Secretary to Government of the N.-W.F.P. Works & Services Department vide order No.SO(E) W.&.S/24-58/2006 (J.C.) dated 15-4-2006 while Syed Gul Shah has been transferred to Abbottabad. It was contended that the order of transferring the petitioner from Abbottabad to Mansehra and that of Syed Gul Shah from Mansehra to Abbottabad through the impugned order was against the law and it be declared as such.

2. We heard the arguments of the learned counsel for the parties. The learned counsel for the petitioner referred to the Notification No.SO(E) W. &. S/13-/77, dated 22-3-2005 issued by the Works & Services Department vide which the competent Authority was pleased to declare Provincial cadre posts of BPS-1 to 15 of the Works & Services Department as District cadre posts with immediate effect on the terms and conditions mentioned therein. The learned counsel for the respondent No.5 referred to section 14 of the N.-W.F.P. Local Government Ordinance and Part-A and Part-C of the First Schedule of the said Ordinance and contended that the group of departments as shown in Part-C as Works & Services did not mean the Works & Services Department of the Provincial Government and in fact the devolution plan did not apply to Works & Services Department. This assertion was against the notification dated 22-3-2005 mentioned above which clearly provided that Provincial cadre posts of BPS-1 to 15 of the Works & Services Department were declared as District cadre posts. Section 14 of the abovementioned Ordinance read with the Part-A of First Schedule clearly shows that the offices for Road and Buildings were amongst the offices which were decentralized to the District level and Part-C of the same Schedule referred to the said offices.

3. The learned counsel for the respondents contended that the civil servants posted in the decentralized departments were to continue to be civil servants for all intents and purposes of the relevant Civil Servants Laws and the Rules framed thereunder with certain modification mentioned therein. He further contended that, being civil servants, they were liable to the law relating to civil servants which included the law relating to Service Tribunal. The learned counsel for the petitioner referred to rule 25 of the N.-W.F.P. District Government Rules of Business, 2001 and stated that posting/transfer of officers/officials shown in column 2 of Schedule IV shall be made by the authorities shown against such Officers/officials in column 3 thereof, Schedule IV clearly mentioned that the Executive District Officer in consultation with District Co-ordination Officer was the authority in respect of officials in BPS-16 and below. The case of the petitioner and respondent No.6, however, is related to the notification dated 22-3-2005. Para. (6) of the terms and conditions mentioned in the said notification is "All cases of transfers from one District to another will be decided and ordered upon by the Secretary Works & Services Department as per rules/policy. The main subject of the notification itself was declaration of certain Provincial cadre posts as District cadre posts. Para. (1) of the same terms and conditions is "Permanent transfer to the Districts will be made on domicile and seniority basis". The petitioner, being domiciled of District Abbottabad, stood transferred to Abbottabad and was retained in District Abbottabad after the devolution of powers and decentralization of offices of the Provincial Government. He remained posted to District Abbottabad on and after issue of the notification dated 22-3-2005. During the arguments it has been clarified from the record that the petitioner is senior to respondent No.6 and both of them are domiciled of District Abbottabad.

4. Para. (5) of the said terms and conditions is "Subject to the permanent transfer of all BPS-15 and below staff to the Districts, further inter-district transfers and service matters including appointments shall be made by the District Government in the light of the District Government Rules of Business, 2001".

5. The respondent No.6 was not yet accommodated in District Abbottabad as no post was available for him, and it has been filed to adjust him in District Abbottabad through the impugned order. But the petitioner is senior to him, is also domiciled of District Abbottabad, and has already been adjusted in District Abbottabad, therefore, the petitioner could not be posted out again from District Abbottabad in order to accommodated his junior in the District of his domicile. Para.(2) of the terms and conditions is "In case of the personnels of that particular District have more than the sanctioned strength, the deployment will be on the basis of seniority and the junior most over-flow will be posted temporarily to the other Districts of the Province till such vacancies occurred in the District of their domicile". Respondent No.6 being junior to the petitioner, in the light of the above para. has to wait for his turn and will be posted to District Abbottabad as and when a vacancy is available for him. But a vacancy cannot be created for him by ousting an already posted employee who is domiciled of the same District and is senior to respondent No.6.

6. Para. (6) of the above terms and conditions is subject to the main declaration, and conditions (1) to (5) and is not independent of the same. Once an employee is permanently transferred to a District against a sanctioned post available for him, he cannot be posted out of the District in order to accommodate his junior. The Secretary Works & Services Department has the power to order transfer from one District to another but, only regarding those officials who are not yet permanently transferred and posted to their Districts of domicile. In this case, the Secretary Works & Services Department has power to transfer respondent No.6 to District Abbottabad as and when a sanctioned post is available for respondent No.6 in District Abbottabad, and in the meanwhile, respondent No.6 can be transferred by the Secretary Works & Services Department to any other District in the Province. But the Secretary Works & Services Department has no power to transfer the petitioner out of District Abbottabad who has already been adjusted by permanent transfer to his District of domicile.

7. In these circumstances, we accept the present writ petition and declare that the impugned order dated 15-4-2006, transferring the petitioner from Abbottabad to Mansehra, is against the law/rules/policy, and is null and void ab initio. Consequently, the order regarding transfer of respondent No.6 from Mansehra to Abbottabad is also illegal and null and void. Respondent No.6 may be adjusted in future in District Abbottabad by his transfer as and when a sanctioned post is available to him. We order accordingly. M.H./183/P Petition allowed.