2000 PLP (C (PLC(CS))

(iii) Who recommended for his transfer? (iv) Whether any summary was prepared for approval of competent Authority? and (v) If department iteself has prepared the proposal for his transfer, then same may also be indicated; (Answer to these quarries be supported by documents, if available, or it should be written that no such document is available); D. If an officer in Column No.4, has been posted as OSD then; (i) how long he will remain as OSD? (ii) Whether any Junior Officer in his cadre has been posted or is presently working against the substantive post and if so, when his posting took place; E. Name and particulars of the‑ Officer, who has been replaced with the Officer in Column No.3, with detail; whether he is senior or junior to him and if Junior in rank, then what is the reason of not posting him against that vacancy? Besides above informations, the Official respondents shall furnish, following details, duly supported by documents:‑‑ (1) Separate details, description of the Officers in Grade‑16 and above, under the control of Services and General Administration Department, as well as other departments, who are junior in rank, but have been asked to designate him/them holding Acting Charge or Acting Officer; (2) Details of Officers who are holding dual or triple charges, and if it is so, then what are its reasons and who has recommended for holding of dual and triple charges, by them? (Answer to this querry be supported by documents, and if there are no such documents, then such facts should be mentioned). (3) List of those Officers who are senior in rank, in S&GAD as well as other departments, but they have been compelled to hold the charge of lower post, whereas the Junior Officer, is acting as Head of the department, on the pretext that he has been allowed to hold the charge of that post; (4) List of fresh appointments in Grade‑16 and above, with effect from January, 1998 to onward indicating; (i) Whether appointments have been made through; (a) Public Service Commission; (b) Selection Board; (c) Selection Committee; or (d) Whatever the case may be?

5. Promotion of the Officers in Grade‑16 and above working in S&GAD and other departments, to indicate whether their promotion has been made in accordance with the rules etc., or otherwise; (6) List of Officers, who were dismissed from service but have been re?instated, with complete particulars, orders of the authorities or directives of reinstatement, issued by concerned authority, as well as summary prepared by the department; (7) List of those employees who have been transferred on ex‑cadre posts, from Grade‑16 and above, by the S&GAD as well as other departments, to indicate; (i) What was the Grade of post? (ii) What was the reason of transfer? (iii) On whose recommendations they were transferred? (iv) Whether any summary was prepared or not? (v) Whether for these posts, no Officer/Official was available in the department which necessitated to transfer a person of outer department, on deputation to serve against ex‑cadre post, or what was the actual position? (Answer to these quarries be supported by document and if tic such document is available then such fact be mentioned) and (8) Details of Officers from Grade‑16 and above who have been transferred in the province on deputation, indicating; (i) Previous post held by such officers, with the name of Organisation, i.e., either Government or non‑governmental Organization? and (ii) Orders of deputation with tenure of deputation whether passed by competent Authority or not? In compliance of above orders Departments of Secretariat as well as attached departments furnished details by fling bulk of documents. On having gone through them it was noticed that the subject of transfers and postings including promotions is far away from departmental rules, regulations as well as the Balochistan Government Rules of Business. When we pointed out to Provincial Government that for good governance of a democratic political government it is essential to always adhere strictly to rules and all efforts must be made to protect to the service structure of employees because once the service structure of a Government has fallen down on account of illegal actions, omissions, deeds of the Government itself then it would never achieve stability nor a political government would be in a position to do something better beneficial for its public at large, nor the Officers who are being posted/transferred other than on merits would be in a position to do good, instead they would indulge in corruption, misconduct and they would also be serving at the whims and desires of the personalities who have been instrumental in their transfers, postings due to which there would be a wave of uncertainty both amongst the Officers who were seniors in rank and deserve to be posted against better vacancies as well as general public because if frequent transfers of one and the other Officer goes on their problems shall remain unresolved. Thus, keeping in view these facts competent authority of the Provincial Government must ensure rectification of all illegalities or irregularities, which have come on each after filing the details referred to hereinabove. On this Government at its own initiated process of rectification in the Secretariat as well as its attached departments throughout in the province and assured that in future efforts shall be made not to violate the rules pertaining to transfers, postings of the employees. We are told by Malik Sikandar Khan learned Advocate‑General that by the time almostly in every department of the Secretariat as well as attached departments rectifications have been made and presently there is no noticeable irregularity in the, provincial service structure. At the time of last hearing we have directed to the Advocate‑General that ‑he should procure certificates from the Departments of Provincial Secretariat as well as attached Departments certifying that process of rectification has been completed and for the time being there is no irregular transfer in their respective departments and in future they would also adhere to the same. As per report of the Office some of the Departments so far have not filed such certificates but we are hopeful that to achieve the object of good governance the Government Departments themselves shall submit such certificates within a period of three weeks after passing of this order and if they failed to do so and this fact is brought in the knowledge of this Court, then proceedings as required under the law for non‑compliance of the directions of the Court and non‑fulfilling of undertakings to rectify all these errors shall be initiated against them. Before parting with this subject of rectification of illegalities, irregularities etc. we would also like to observe that in the meanwhile this Court in the case of Muhammad Ayub v. Province and Balochistan and Others (C.P.No. 367/1998) had also made following observations with directions to the Government to strictly observe the same in future. "At this juncture it is also to point out with g._‑eat concern that as far as civil servants are concerned, they also never feel shy in influencing the Ministers, MPAs and MNAs Politically for the purpose of their transfers without knowing that their such conduct tantamount to misconduct which can entail severe departmental action against them. Be that as it may, as far as the secretaries of Heads of the attached Departments are concerned it becomes their bounders duty not to succumb to the desires and requests of the Political Figures including Ministers, MPAs, MNAs in acting upon their unlawful directions having no sanctity or legal cover either under the Rules of Business of 1976 or under any other provision of law and just they keep behind the riles, regulations and implement such orders without considering its repercussions it the long rum on the structure of the civil service and also without caring that such illegal orders/directions which are being implemented by them are not only deterimental for the national interest but for the individual as well in whose favour such order has been passed because he would not be in a position to show his efficiency rather it will reflect on his integrity because if today he is being transferred on account of the influence of any, political figure then such personality tomorrow can ask him as well to do illegal favour at the cost of national interest as well as the province. In this context equally the Secretary or head of, the Department who had implemented such instructions orders shall also be responsible for appropriate action under the relevant departmental rules, if he is implementing illegal orders/directions of the political figures had violated to the Constitutional provisions or to the rules having Constitutional back up for which they can be held responsible at any moment either by the concerned authority of the Provincial Government 'or under the provisions of Accountability Act, 1997; In this context in an identical situation Honourable Supreme Court in the case of Zahid Akhtar v. Government of Punjab through Secretary Local Government & Rural Development Lahore and others (PLD 1995 SC 530), had made following valuable observations for the Government Officers particularly the bureaucracy: 'We need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good Government is largely dependant on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law, succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of discretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders directions of his superiors which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non‑compliance would have exposed the concerned Government servant to the risk of disciplinary action. In the above judgment the Honourable Supreme Court examined some of the identical cases which is under consideration before us, but despite of making above observations did not give relief on the ground that petition before Lahore High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, was not maintainable in view of the bar under section 212 of the constitution of Islamic Republic of Pakistan, 1973, therefore, following the same observations of Honourable Supreme Court we are also not inclined to grant relief to the petitioners as it has been prayed for." We have been informed that all the concerned departments are strictly adhering to above observations. Now turning towards the main question of posting an officer as O.S.D., we are inclined to hold that this term is absolutely extraneous to section 10 of the Balochistan Civil Servants Act, 1974 read with Balochistan Civil Servants (Appointment, Promotion & Transfer) Rules, 79 For the sake of convenience of intervening period for posting from one place to the other place, such practice is permissible as Government of Balochistan has itself expressed while furnishing querries called for which have already been re?produced hereinabove, therefore, we declare that in future the Government officers should not be placed for a longer period than 30 days as OSD and their services may be utilised in the best interest of public instead of allowing them to remain sitting idle and getting the service benefits without performing their duty. In this behalf, at this juncture, we would like to also make reference to a judgment in the case of Syed Ajmal Hussain Bukhari v The Commissioner Rawalpindi" 1997 PLC (C.S.)

754. In this case the petitioner was working as Tehsildar at Rawalpindi but the Commissioner transferred him after three months with direction to report to the Member Board of Revenue. The Honourable Lahore High Court while examining validity of his transfer observed that the posting or transfer is an administrative matter made in the exigencies of service to which a civil servant may not lawfully object in view of section 9 of the Punjab Civil Servants Act, 1974. However, with regard to placing a person as O.S.D., some observations were made which being valuable are re‑produced herein below:‑‑ ''However, there is another important aspect of the matter in this case, which needs consideration. The petitioner was transferred by the impugned order of Commissioner, but he was left without any posting. In my view the right to posting is a valuable right and is implicit in Article 3 of the Constitution based on the fundamental principle, from, each according to his ability. Even under Article 2(a) that is to say the objective resolution the right of social justice has been guaranteed". In view of the above observations re‑produced some extracts from an address delivered by late Mr. Justice M.R. Kiani on 17‑3‑1958 at the C.S.P Association dinner as published in his book titled "Not the whole truth" with caption "The Officer on Special Duty". Relevant para. therefrom being informative is reproduced herein below:‑‑ "I may usefully reproduce some of the extracts from an address delivered by late Mr. Justice M.R. Kyani on 17th March, 1958 at the C.S.P., Association Dinner as published in his book titled "Not the whole Truth" at page 46 with caption "The Officer on Special Duty" as under:‑‑ O.S.D:, stands for Officer on Special Duty, a designation which came to be reserved for Officers who were on the wrong side of the Ministry. There was no special duty to perform and the object was to place them in unimportant position. This year's special text was an institution called the O.S.D., a sort of DDT which disinfects the mind, a superlative class of C.S.P. where you get full pay without doing any work; But the modern O.S.D. is not so ingenious. For two months and a half he sits idle, not knowing what to do with his three thousand a month. Over burdened with three hundred by way of O.S.D. allowance. This three hundred is the straw that break's the camel's back, because in three months he becomes a veritable camel, groaning and grabbling. Sir, I went to visit an O.S.D. on a Friday afternoon on January and found him sleeping in a cold bedroom. He had forgotten the use of the sun, in whose glorious warmth the happier people does away their Friday afternoons. My heart went out to him. Tears came into my eyes. I did not wake him, but I did best thing: I prayed for him, Sir Prayer is the sincerest desire of the soul, and soon thereafter, he got a Stenographer. This is a great achievement, that an O.S.D. should be able to get a Stenographer after two and a half months, even though he has become a camel in the meantime, and I am convinced that the West Pakistan Government; could not have accomplished it without my prayer. In the case of two other officers, whose I forgot to pray, they were compelled by their circumstances to take leave." In this very judgment learned Judge made certain observations with regard to allowing a person to remain as O.S.D. Said paras. having persuasive value are reproduced herein below:‑‑ "There is a common practice prevalent both in Federal and Provincial Governments to keep the civil servants without posting as a measure of punishment for considerably long periods by making them O.S.D. etc. without getting normal work which is a fraud on the statute and abuse of executive power. The same cannot be countenanced and is required to be discontinued by the Government forthwith; In my view, a civil servant who is transferred has a legal right to be posted to a position commensurate to his rank, statute with responsibilities without unnecessary delay and in any case not late than thirty days of his transfer. This right of the civil servant which is guaranteed by the constitution and the law cannot be denied to him. There might be exceptional cases such as where a civil servant is under suspension facing a disciplinary action or undergoing a training where he may not be possibly given a particular posting. Otherwise, every civil servant will have to be placed with proper posting and assignment of a duties where he can work and render valuable service to the State. In this view of the matter, this writ petition is disposed of with the direction that the Board of Revenue, Punjab shall, if it considers necessary, pass a fresh order of posting? and transfer of the petitioner, within a period of thirty days from today. Let a copy of this order be sent to the Chief Secretary Government of the Punjab, Lahore who shall act and issue necessary instructions within three weeks to all concerned, in the light thereof. We see no reason to disapprove above opinion of the Lahore High Court and as a consequence we are inclined to hold:‑‑ (1) It would be appropriate and in the interest of general public if in future Government will make efforts not to place an officer as O.S.D., beyond reasonable period of more than 30 days; (2) If his services are not utilised in the department in which originally he was appointed then he should be given other suitable post which may be commensurate with his qualification and status; (3) If the Government Officer is found to be inefficient or corrupt or is started to be indulging in misconduct then instead of allowing him to continue as O.S.D. as punishment, he should be dealt with departmentally under the Efficiency, and Disciplinary Rules; otherwise in absence of any such allegation the Government should not refuse to utilize his services for any? other extraneous considerations. Undoubtedly relief to petitioner cannot be awarded to the extent of declaring notification, dated 6‑5‑1996 illegal in pursuance whereof the post of Deputy Director Mineral Development Department was upgraded to the post of Joint Director against which respondent No.3 was posted because no objection in this behalf was filed at appropriate stage. However, so far his posting as Director Environment is concerned that does not seems to be commensurate with his qualification as B.E. (Mining) as well as the status which he has been allowed to enjoy in B‑20, therefore, we would appreciate that if the Government will reconsider the case of petitioner and give him suitable posting within two weeks of the passing of this order. Thus, in view of the above discussion petition stands disposed off. Copy of the judgment be sent to Chief Secretary Government of Balochistan for information and compliance. No order as to costs. JAVED 1QBAL, J:‑‑‑While agreeing with the reasoning and conclusion as arrived at by his Lordship, the Hon'ble Chief Justice, I would also like to give my humble view. I am conscious of the fact that neither a particular posting can be sought nor asked for by a Government servant, but it does not mean that the concept of O.S.D. having its own peculiar characteristics should be exploited. A Government Servant who is posted as O.S.D. had every legitimate right to ask for the reasons about such posting specially when his juniors are having lucrative and excellent posting. I am also conscious of the fact that posting of a particular Government Servant against a Particular post is discretionary and fall within the prerogative domain of Government, but it must not escape unnoticed that such discretion cannot be exercised in an arbitrary or fanciful manner but judiciously and in accordance with settled norms of justice, equity and fair play. It is bounden duty of the Government that while exercising such discretion the requirement of job, nature of duties, requisite capabilities and know‑how for its performance, qualification of the incumbent, seniority position, general reputation and A.C.Rs. must be considered because the previous service should be free from blemish. It must be kept in view that there should be no extraneous consideration and under political pressure which can be checked effectively subject to availability of will and there should be no hesitation or fear in doing so as the relevant provision of Rules of Business having the sanctity of Constitution and Law, are capable enough to meet such sort of eventualities. The service structure, no‑ doubt is at the brink of collapse and it is high time to take strong and solid measures for its survival and revival. The Courts cannot remain oblivious of the prevalent situation because in order to create a just society, justice has to be done at all levels and this objective can be achieved by providing equal protection of law. I am conscious of the fact that there should be no undue influence in realm of appointments, transfers, and posting, but it is to be kept in view that wide powers in this regard has been conferred upon Government which may affect the career of a Government Servant and, thus, it would be the duty of High Court to see that such powers must be exercised in accordance with Service Laws and simultaneously in conformity with mandate of law givers as it would be in the interest of good and healthy governance. I am of the, considered view that where a particular posting is vitiated by bias, political or extraneous consideration or made in violative of the Service Rules, natural justice and equity can be interfered with and may be set aside. In such view of the matter the case of petitioner be considered on the touch stone of criteria as laid down hereinabove and needful be done as directed by Hon'ble Chief Justice. Q.M.H./M.A.K./780/Q??????????????????????????????????????????????????????????????????????? Order accordingly.