2009 PLP (C (PLC(CS))

KH. FAROOQ SAEED, J.

Brief facts to the present writ petition are that the petitioner who is graduate was appointed is "Junior Clerk" (C.D.C. Supervisor) in BPS-5 vide Order No.DHO/11767/C, dated 7-6-1995 in Health Department. Thereafter, the Health Department became a part of the District Government under the Punjab Local Government Ordinance, 2001. The petitioner by that time had passed LL.B. from Shah Abdul Latif University, Khairpur. After devolution, plan was introduced by the Government, some posts of the Junior Clerks, were found lying vacant in the Revenue Department. The petitioner applied for the same. The respondent No.1 referred the matter to respondent No.2 and the E.D.O. (Health) issued N.O.C. vide No.9-11-12, dated 6-6-2002. The N.O.C. was subject to the condition that he will not claim his seniority in his new posting and was consequently adjusted vide order, dated 17-6-2002. His service book from E.D.O. (Health) Rahim Yar Khan was sent to the respondent No.2. Later on 4-8-2008 the respondent No.3 became wiser and prepared a report on the said date stating as follows:

"I think that such adjustment orders made by the then D.C.O. does not seem appropriate and are improper."

2. The matter was referred to respondent No.1 with the above recommendations who issued an order to repatriate the petitioner to his earlier department vide Order No.DO(HRM)/769, dated 6-8-2008. The petitioner filed representation before the respondents Nos.1 and 3 which was not accepted. The order is now impugned inter alia on the basis of following arguments:

(i) That the adjustment in Revenue Department was practically a new posting which is evident from the adjustment letter itself. The reason being that the same is subject to relinquishment of the right of seniority available to him in previous service; (ii) that the petitioner has served thereafter about six years. His name is containing in the seniority list at Sr.No.76 and he was promoted from BPS-5 to BPS-7 by obviously considering him as a regular employee; (iii) that the repatriation is without giving him a chance of being heard which is violation of principle of natural justice.

3. The case of the respondent on the other hand is that it was only an adjustment from Health Department to Revenue Department which was not within the jurisdiction of the then D.C.O. Further that the petitioner had retained his lien with the principal department and alternate remedy is available to him in terms of appeal before the Labour Court.

4. So far as the maintainability of this writ petition is concerned, the emphasis of the petitioner's side remains that since the order is in ignorance of the legal position, hence the same is maintainable in all respects. The respondents' claim, however, remained that since the D.C.O. has no power to appoint or adjust, the entire superstructure raised thereafter is illegal.

5. On a query of this Court it was pointed out that the Board of Revenue, Punjab was declared as administrative department with respect to ministerial post in the office of District Nazim, Deputy District Nazim, D.C.O., XEN (F-P), XEN (C-D) and District Officer (Finance) (HRM) and (Coordination) vide notification No. SOR-III(S&GAD)1-3/98, dated 13-11-2003. The above notification also inter alia explained that for the posts located in the aforementioned offices and not reflected in the existing rules, the' Board of Revenue shall get the necessary amendment in the rules as required.

6. Further argument on the basis of above discussion, therefore, is that the petitioner being employee of Health Department, his services could not be transferred by the then D.C.O., Rahim Yar Khan, hence, the same was void ab initio.

7. One could agree with the respondent, but, however, the facts does not support their claim. The petitioner made applications for adjustment/posting in Revenue Department. The D.C.O., Rahim Yar Khan, through its Letter No.9-11-12, dated 6-6-2002 referred the matter to E.D.O. (Revenue), Rahim Yar Khan to grant an N.O.C. The E.D.O. (Revenue) vide Letter No.1289, dated 7-6-2002 issued N.O.C. with the subject adjustment/posting in revenue. The said letter reads as follows:-- "To The District Coordination Officer, Rahim Yar Khan. No.1289, dated 7-6-2002 Subject: Adjustment/posting in Revenue Department Kindly refer to your Letter No.DCO/HRM/9-11-12, dated 4th June, 2002, this office has no objection, if Mr. Muhammad Shakeel Asghar Khan Singh, Junior Clerk (C.D.C. Supervisor BS-5) Health Department is adjusted/posted in Revenue Department subject to the condition that he will not claim his seniority. Executive District Officer (Revenue), Rahim Yar Khan."

8. The D.C.O. Office approved the recommendations on 17-6-2002. In consequence thereof, order was released on 12-6-2002 which was subsequently, notified by the E.D. (Revenue) Rahim Yar Khan, dated 8-7-2002. His service book, was got transferred on 20-6-2002.

9. In fact the arguments of the respondents side are self contradictory. The claim that the D.C.O. does not have any authority to transfer the employee of the Heath Department to Revenue Department is self contradictory. Obviously, if he does not have any power to transfer a person from the Health Department to Revenue Department, conversely he can also not enjoy the power to transfer him from the Revenue Department to Health Department. In fact in such eventuality he could at best place the services of the official to the Provincial Government with the recommendation of declaring him either surplus or otherwise not required within his jurisdiction.

10. Even on asking many questions the respondents were unable to explain as to what was meant by the term adjustment in service. The petitioner has neither been transferred nor sent on deputation. He has been adjusted/posted in the new job. In fact it is not being claimed that the petitioner was on deputation and it is the adjustment/posting which is under discussion, one would therefore, go by the meaning thereof as per law.

11. Adjust defined by Judicial Dictionary Eleventh Edition by Aiyar's means settlement in respect of claim, liabilities or payment, define of existing assets. The purpose to adjust is to restore the true balance. It, therefore, does not explain the status of a person who has been adjusted.

12. Since the term has been used along with appointment, the meaning of the same shall prevail. The same as per the aforementioned Judicial Dictionary means as follows:

"In the ordinary dictionary meaning the word "to post" may denote either (a) to station someone at a place, or (b) to assign someone to a post i.e. a posting or a job, especially one to which a person is appointed (see Webster's New World Dictionary (1962). The word "posting" cannot be understood in the sense of "transfer" to operate at a stage beyond appointment and promotion. If "posting" was intended to mean "transfer", the draftsman would have hardly chosen to place it between "appointment" and "promotion" and could have easily used the word "transfer" itself. State of Assam v. Rangs Muhammad (1967) I SCWR 219; AIR 1967 SC 903."

13. The above definition which is supported by the case-law as well as meanings adopted in other dictionaries distinguishes the posting from transfer clearly. The claim that the D.C.O. had no power to transfer a person from the Health Department is correct and accepted, but, since it is not a case of transfer and that of posting, the respondent cannot be allowed to go back to their earlier stand.

14. It is true that the process which has been evolved is not as if the petitioner was being appointed afresh. However, it also cannot be stated that the posting would amount to a transfer or service on deputation from one department to another as the procedure with respect thereto also is different.

15. In any case, the petitioner had acquired a vested right in terms of "locus poenitentiae" as has been held in re: Muzaffar Ali Khan Additional Director-General (Horticultural) L.D.A., Lahore v. Lahore Development Authority through Director-General and 3 others 2000 PLC (C.S.)

924. The above quotation means that the respondents having posted the petitioner to a new post depriving him from the benefit of earlier service had for all practical purposes posted the person by way of a new appointment. Through the order of 2002, they had lost locus poenitentiae, thus, a vested right had accrued in favour of the said petitioner which cannot be withdrawn.

16. Further the case of the respondent suffer from another patent illegality. The aforementioned judgment in terms of 2001 PLC (C.S.) 924 (supra) inter alia holds that a right having been accrued to a person in a job, he cannot be reverted back to his earlier post having been absorbed in the new department. Besides he could not have been sent back without giving a right of being heard.

17. An individual who is likely to be adversely affected by the orders of some authority is entitled to a hearing before any decision against him.

18. The upshot of the above discussion, therefore, is obvious. The action of the, respondents to transfer the petitioner back to his parent department is considered without any authority and the impugned order is set aside. The petitioner, therefore, is directed to be posted to its original position immediately with all back-benefits without any order as to costs. H.B.T./S-96/L Petition allowed.