P L D 2006 Peshawar 119 (PLP)

RAJ MUHAMMAD KHAN, J.

Himayatullah Mayar District Nazim District Mardan elected so in the Local Government Elections held in 2005, through the instant writ petition has challenged the legality of two notifications of the Government of N.-W.F.P. Schools and Literacy Department bearing No. SO(S) 4-16/2005/ Mst: Rukhsana Rahim dated Peshawar, the 17th January, 2006 providing, inter alia, for transfer of Ms. Rukhsana Rahim DDO(F) Takht Bhai to Mardan (respondent No.5) and Ms. Bakhtiar Hanif DDO(F) (BS-17) S&L Mardan (respondent No.6) to Takht Bhai and No.SO(S)4-16/2005/Mst. Rukhsana Rahim dated Peshawar, the 19th January, 2006 providing, inter alia, for transfer of Ms. Bakhtiar Hanif, DDO(F) (BS-17) S&L Mardan (respondent No.6) under transfer as DDO(F) S&L Takht Bhai) to Takar as Head-mistress GGHS. The transfer of Ms. Bakhtiar Hanif has taken place within the district Mardan from one station to other. This transfer has made the petitioner District Nazim aggrieved as according to him he was not consulted by the Provincial Government of N.-W.F.P. as was required under Rule 25 of N.-W.F.P. District Governments Rules of Business, 2001 (hereinafter called the Rules), notified on 30-10-2001 under section 191 of the N.-W.F.P. Local Government Ordinance, 2001 (N.-W.F.P. Ordinance XIV of 2001) read with section 31 thereof.

2. Schedule-IV made under rule 25 of these Rules which was published vide notification No. Admn. (LG)/DG/ 1(28)/2001 dated Peshawar, the 10th July, 2003 specifically provides for posting and transfer of officers/officials shown in column 2 thereof to be made by authorities shown against such officers/officials in column 3 thereof. The said schedule which has been amended from time to time and lastly by notification dated 10th July, 2003 provides for transfer of officers in BPS-17 and above in the District by the Provincial Government in consultation with the Zaila Nazim. It is asserted by the petitioner that the Provincial Government had transferred Ms: Rukhsana Rahim respondent No.5 as DDO(F) to Mardan while transferred respondent No.6 Ms. Bakhtiar Hanif, DDO(F) to Takht Bhai vide notification dated 17-1-2006 referred to above and just after few days on 19-1-2006 transferred Ms. Bakhtiar Hanif (respondent No.6) as Headmistress, GGHS to Takar against Ms. Safia Taj, DDO(F) without consultation of the petitioner as was required under the Rules. According to the petitioner, such arbitrary action of the Government Department amounted direct interference in the affairs of the District Government and thus was without lawful authority. It was further stated that the last notification of transfer was against basic policy of devolution of power and also against the mechanism of the Ordinance and was thus not maintainable. That despite having suggested and recommended to the concerned, no response was given to him and finding no efficacious remedy elsewhere, he has approached this Court for the needful. It was prayed that the impugned two notifications dated 17-1-2006'and 19-1-2006 may be declared as illegal and without lawful authority as were violative of the Schedule-IV of the Rules ibid and may be set aside with direction to the Government of NWFP, respondent No.1 to act in the matter in accordance with law.

3. After obtaining comments from respondents Nos.1 and 2, we have heard the parties and gone through the record.

4. The main defence taken by the contesting respondents, who are Government functionaries, in their objection to the maintainability of the instant writ petition on the grounds that it is hit by the principle of res judicata inasmuch as similar petition was previously withdrawn by the Ex District Nazim Mardan named Muhammad Raza Khan and that the Chief Secretary to the Government of NWFP was necessary party to this case who has not been impleaded as such.

5. So for the earlier similar petition is concerned, which was W.P. No.1065/2004 filed in this Court, had assailed notification dated 1-6-2004 whereby respondent No.1 had transferred and posted Ms. Rukhsana Rahim (respondent No.5) as Headmistress GGHS Qasimi Mardan allegedly without consultation of the then District Nazim. The present writ petition calls into question other Notifications dated 17-1-2006 and 19-1-2006. Thus the earlier writ petition No.1065/2004 cannot be termed to be hit by the principle of res judicata as the notifications involved in these petitions are quite different inter se.

6. So far the impleadment of Chief Secretary of the Government of N.-W.F.P. as party to the case is concerned, the concerned departments are already represented in the instant petition through their respective Secretaries and interestingly, there is no mention of the Chief Secretary in any document to be relevant to the instant case. Thus the Chief Secretary does not appear to be necessary party to this petition since efficacious relief can be given in the matter even if the Chief Secretary is not arrayed as respondent to the case in hand.

7. As regards merits of the case, Rule 25(1) of the Rules provides as under:

25. Posting and transfer.

(1)? 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.

8. The Schedule-IV is as under:-- SCHEDULE-IV (See Rule-25) S. No . Officers Authority 1. 2. 3.

3. Other Officer in BPS-17 and above in the District. Provincial Government in consultation with the Zila Nazim.

9. The contesting respondents/the Government functionaries have not rebutted the legal provision of consultation of the District Nazim by the Provincial Government in the matter of transfer of officer in BPS -17 B and above which is mandatory under Rule 25 of the aforesaid rules read with Schedule-IV thereunder. Consequently, the transfer of Ms. Rukhsana Rahim respondent No.5 (shown under transfer as Headmistress GGHS Qasimi) to Mardan and Ms. Bakhtiar Hanif, respondent No.6 from Takht Bhai to Takar through notifications dated 17-1-2006 and B 19-1-2006 respectively, are held to be without lawful authority and against the rules on the subject. It has been proposed by the Zila Nazim, Mardan vide his correspondence No.106/ZN (M) dated Mardan the 21st January, 2006 to the respondent No.1 that Ms. Rukhsana Rahim respondent No.5 may be retained as Headmistress, GGHS Qasimi as per last order dated 1-6-2004 while Ms. Bakhtiar Hanif respondent No.6 at Mardan. We have been also told that the seat at Qasimi remains still vacant where Ms. Rukhsana Rahim respondent No 5 can conveniently be posted as per proposal by the Zilla Nazim Mardan. We, therefore, in the circumstances of the case, accept the instant writ petition and direct the respondents Nos.1 to 4 to withdraw their notifications ibid regarding posting and transfer of respondents Nos.5 and 6 forthwith and get posted Ms. Rukhsana Rahim at Qasimi in District Mardan as desired both by the petitioner and her. The respondent Ms. Bakhtiar Hanif may remain posted at Mardan as proposed by the District Nazim. This writ petition stands disposed of accordingly. H.B.T./75/P???????????????????????????????????????????????????????????????????????????? Petition accepted.