2005 PLP (C (PLC(CS))

Appellant District Officer/Director, Excise and Taxation, Multan is aggrieved by the order, dated '20‑7‑2004 passed by the Chief Secretary, Government of the Punjab, in his capacity as appellate authority, dismissed the representation of the appellant and maintaining the order, dated 2‑6‑2004 passed by the Secretary, Excise and Taxation, Government of the Punjab, Lahore transferring the appellant from Multan and posting him as System Analyst in the Directorate General of Excise and Taxation, Punjab.

2. Facts gleaned out from the memorandum of appeal are that the appellant was posted on 24‑4‑2002 as Director Excise and Taxation, Multan. It is stated that a meeting was held under the Chairmanship of Minister for Excise and Taxation, Punjab and certain decisions which Were not beneficial to the department were objected to by the appellant, as a result the very next day i.e. 2‑6‑2004 he was transferred and posted in the office of Director General, Excise and Taxation, Punjab, Lahore. His appeal was rejected on 20‑7‑2004 and both the orders have now been impugned.

3. Learned counsel contended that the transfer was as a result of mala fides entertained by the Minister Excise and Taxation, Punjab whose line was not toed and further the Transfer Policy, dated 3‑11‑1985 was grossly violated in that the appellant was to retire on reaching the age of superannuation on 1‑2‑2005 from Government service and the policy required officers/officials due to retire on attaining the age of superannuation in two years time to be given a choice of their last posting and the authority competent to transfer, had to as far as possible, to honour the choice of the officer/official, which was not done in the case of the appellant.

4. Learned District Attorney after being assisted by the departmental representatives present with official record stated that the appellant has not come to the Tribunal with clean hands as he relinquished the charge on 4‑6‑2004 at Multan and assumed duties on 12‑6‑2004 at his new place of posting but in order to get a stay order on 2‑8‑2004 he made misstatement that he was still serving at Multan, as such the appeal should be thrown out and relief should not be extended. It was further asserted by the District Attorney that appellant was transferred as a result of two inquiries on disciplinary grounds were taken against the appellant and it was thought expedient that the matter be got inquired at a place other than Multan, therefore, the appellant after assuming charge in the office of Director General, Excise and Taxation was placed under suspension on 2I‑7‑2004. Lastly, it was submitted that under section 9 of the Punjab Civil Servants Act, 1974 every civil servant shall be liable to serve any where `within or outside the Province and this being the provision of the Statute shall over the ride transfer policy brought in by the Executive.

5. I have heard the arguments of the respective counsels and perused the' record.

6. In the representation of the appellant made to the appellate authority same grounds were taken as were agitated before the Tribunal today. The appellate authority dismissed all the points raised by the appellant and maintained the order of transfer, disagreeing with the arguments of the appellants that the transfer was in violation of the transfer policy, rather referring to section 9 of the Punjab Civil Servants Act, it was observed that transfer was made on administrative grounds and does not violate the spirit of the transfer policy.

7. It is not denied that the appellant has to retire from service on reaching the age of superannuation w.e.f. 1‑2‑2005. At the time when the order was passed about 08 months were left for the appellant to retire from service. Today when the appeal is taken up for hearing approximately 3 months have to pass before the appellant reaches the age of superannuation. There is no doubt in my mind that the provision of the Statute particularly section 9 of the Punjab Civil Servants Act, 1974 definitely overrides transfer policy framed by the Executive but there is always some logic and philosophy in framing such policy which has been followed for about 9 years and wide departure from said policy should be always for compelling and persuasive reasons otherwise the transfer policy would become totally redundant and if this was the intention of the framers, then the same should be abandoned than to keep it in a :glass‑frame as a decoration piece. It has been held by the apex Court time and again that recourse to disciplinary proceedings for misconduct is no ground to transfer a civil servant. If the appellant was corrupt as the allegations levelled against him are then by transferring him to the office of Director General, Excise and‑ Taxation, Punjab a varied choice is being offered to him to practice his misconduct at his new place of posting. This has never been the spirit of law. Inquiries on disciplinary grounds can be initiated and completed against the civil servant at the same place where he allegedly committed acts of omission and commission. This would also save the Government from unnecessary expenditure to take the witnesses from Multan to Lahore for proving the charges. Appellant having been suspended cannot have recourse to the record, therefore, the fear that the tampering of the documents may not take place is ruled out of consideration. The same interim action could 'have been taken against the appellant if he was posted at Multan.

8. Reverting to the transfer policy, a choice has been given to the officer/official who is to retire within the next two years and the logic involved is that the time has reached when the civil servant should seriously think about his post‑retirement period where: he wants to settle and hid convenience to look after his affairs. The transferring authority has been directed to give, as far as possible, effect to the wishes of the officer/official expecting retirement. The very fact that the appellant has brought the appeal against his transfer from Multan to Lahore indicates that he desires to lead his post‑retirement life at Multan. The discussion would therefore show that the Transfer of the appellant from Multan to Lahore was not made on administrative grounds in the, exigency of service in the public interest rather the arguments of the learned District Attorney would show that it was by way of keeping hint outside Multan as disciplinary proceedings for the alleged acts of omission and commission were to be commenced, The letters of the Excise and Taxation Department, dated 10-6-2004 and 12-6-2004 seeking his explanation for the aforesaid acts of omission and commission soon after his ‑.transfer furnish sufficient proof as to why his transfer was made.

9. For all what has been, dilated upon in the preceding paragraphs, I am of the considered, view that less than three months having been left for the appellant to retire the transfer policy should be respected allowing the appellant to continue serving where he desires to settle after retirement. The inquires cart continue by placing him undersuspension at Multan and if the appellant is found guilty the law definitely should be allowed to take its course Order dated 2‑6‑2004 of, the authority and 20‑7-2004 of the appellate authority are set aside. Appellant shall serve at Multan till 1-2-2004 when he attains the age of superannuation or earlier in case the penalty according to its nature if it is imposed under the pending inquiries. There shall be no order as to costs. H.B.T./31/PST Appeal allowed.