Transfer and posting

Petitioner assailed notification of his transfer and posting on the analogy of earlier decision of High Court in similar matter on the basis of security of tenure

Respondent-department took the plea of difference of status of the posts as Chief Officer in the earlier case and as Sub-Engineer in the case of petitioner

Validity

Section 186 of the Punjab Local Government Act, 2022, (Act) refers to all Chief Officers and such other officers of the Local Governments that may be specified by the Secretary from time to time

Petitioner was transferred and posted as Sub-Engineer by the Secretary Local Government and Community Development Department, thus, he fell within the category of 'such other officers' specified by the Secretary

Petitioner had been transferred within a span of fourteen months and was transferred through the notification just after four months, which was against the ordinary tenure provided in S. 186 of the Act

Competent authority can transfer an officer on administrative grounds, but if the same is tainted with mala fide or any external influence or any other arbitrary reason or a reason contrary to the settled principles of transfer/posting, the same is void ab initio

Right of an employee/officer against displacement or transfer is accepted only when the same is passed on extraneous consideration and it cannot be claimed as a matter of right

Constitutional petition was allowed, in circumstances.

Grievance of the appellant was regarding his periodical transfer from one place to another within a short span of time without assigning any cogent reason

Validity

No doubt the appellant was a civil servant governed by the terms and conditions of Gilgit-Baltistan Civil Servants Act, 2011 ('the Act, 2011'), however, as per S. 9 of the Act, 2011 desired posting was not the perpetual right of civil servant and the concerned department could transfer any civil servant to serve at the place as given in the posting /transfer order

Appellant had failed to point out any term/condition which prohibited the respondent authority to transfer him from one place to another

Employment carries with it an obligation to serve, whichever place the competent authority posts / transfers the employee for administrative reasons

Appellant failed to establish that he was transferred/posted with mala fide intention by the competent authority

Employee cannot choose the place of posting and the authority knows where and how best the services of the employee are to be utilized

Transfer of an employee is an incidence of service and no employee can claim as a matter of right to remain posted at a place of his choice for an indefinite period

Record revealed that the appellant had been serving in the billing sub-division during his entire service from 2007, so in such situation how he could say that he was made a rolling stone during his entire service

Even as per impugned notification, the appellant had been posted from "Water and Power Division Gilgit" to "Water and Power Division Gilgit "with immediate effect

Competent authority can transfer an employee from one place to another on administrative ground and such kind of order does not violate any right of the employee and the competent authority is the best judge to choose the place of posting of an employee for smooth running of the official business and to get maximum benefit of his/her capabilities

There was no bar on the respondent / department to transfer the appellant from one place to another as per terms and conditions of S. 9 of the Act, 2011

Appeal filed by civil servant, being meritless, was dismissed, in circumstances.

Transfer of a government official from one place or post to another to meet the exigencies of service was within the exclusive domain and competence of the competent authorities of the executive organ of the State and, ordinarily, it is not amenable to interference except in extraordinary circumstances

Said principle is subject to the condition that the terms and conditions of service are not adversely affected

Moreover, an official has no vested right to claim to be posted/transferred to any particular place of his choice, nor is there a vested right to continue to hold a particular post at a particular place

Transfer and posting of a government servant is limited to the given tenure, if any, or at the pleasure of the competent authority

Question of whether the posting and transfer made by the competent authority was in the public interest is not open to judicial review by a tribunal or court and utmost caution and restraint ought to be exercised in interfering with or encroaching upon the exclusive domain of the executive authorities

Decisions in connection with posting and transfer of government servants must not be subjected to judicial scrutiny unless a law has been clearly violated or mala fide and malice is established without the need for making an inquiry

Interference of the Tribunal or courts in matters relating to postings and transfers is, therefore, an encroachment upon the executive domain and in breach of the seminal principle of separation of powers embedded in the Constitution.

Petitioner contended that government be directed not to make transfers/postings of civil servants as such act of the government had caused public exchequer a huge loss

Validity

Clause 1(a) of Art. 199 of the Constitution clearly postulates that High Court can make an order only on the application of any aggrieved party

Petitioner, being not an aggrieved party, could not competently make a resort to the High Court under its constitutional jurisdiction

Petitioner had no locus standi for availing such jurisdiction

Neither had the petitioner any nexus with the transfers/postings, nor had he any concern with it, rather it was the sole prerogative of the concerned department of the government to transfer/post any suitable person from one place to another

Constitution petition was dismissed in limini.

Petitioners (who were performing their duties in the Prosecution Department, GoB) were aggrieved from a letter addressed to the District Public Prosecutors of Quetta etc. wherein it was mentioned that the Prosecutor General had no authority to issue transfer/posting orders of officers of BPS-17 and above, which authority, according to the impugned letter, vested exclusively with the Secretary, Prosecution Department, GoB

Question was as to whether the powers for transfer and posting of the members of service under the Balochistan Prosecution Service (Constitution, Function and Powers) Act, 2003, vested in the Prosecutor General or the Provincial Government?

Held, that "Prosecutor General" has been defined in S.2(l) of the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003, which holds the Prosecutor General responsible for management of prosecution and control over the Prosecutors and in the same manner, according to S. 5(2) of the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003, the administration of the service has been vested in the Prosecutor General

Intent of the legislature is to create independent and uninfluenced Prosecution Department so that the trust of general public be restored

Independent and fair prosecution is indispensible for any civilized criminal justice system

Constitution of Pakistan is based upon trichotomy of powers

Article 175 (3) of the Constitution envisages separation of judiciary from the executive

On the same analogy separation of prosecution from the executive is also necessary for transparent and fair prosecution of cases

For the administration, control and supervision under Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003, the intent of legislature while enacting the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003 was to formulate independent, impartial and fair prosecution services free from external influences and ulterior considerations of any kind

For this very purpose, the Prosecutor General was authorized with management and administration of Prosecutors independently and the Secretary, Prosecution Department GoB had no role in said regard

High Court set-aside the impugned letter dated 08.09.2022

Constitutional petition was allowed, in circumstances.

Jurisdiction of the High Court was ousted in matters which fell within the jurisdictional domain of the Balochistan Service Tribunal

Article 199 of the Constitution was "subject to the constitution", while Art. 212, being a non-obstante Article, prevailed over Art. 199

Article 212 clearly stated that "no court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends", therefore, High Court had no jurisdiction to entertain a matter which stood barred under Art. 212 of the Constitution

In fact, Art. 199 of the Constitution could not be set in motion due to the jurisdictional bar; therefore, question of alternate remedy or mala fide consideration or the nature of grievance did not even begin to arise

Such distinction between the bar of jurisdiction and the exercise of judicial power must be clearly understood

Petitioner was directed to approach relevant forum

Constitutional petition, being not maintainable, was dismissed.

Petitioner assailed the notification of his transfer on the ground that it was in violation of Reglns. 4.10 & 4.12, National Highway Authority Administrative Regulations, 2002

Validity

Impugned notification did not demonstrate any special circumstances, due to which, the Reglns. 4.10 & 4.12(3) were deviated and bypassed

Section 24-A of the General Clauses Act, 1897, imposed a mandatory obligation upon every executive and public authority, that the order passed by such authority must not be brief and non-speaking

Though the Regln. 4.10 did not prescribe a minimum period during which an employee/officer of NHA must serve at his post, however, it did not mean that the Authority without assigning any reason could move an officer from the place he was posted just after eight months or subject the officer to successive transfers in a short period for this would amount to punishment

Such transfers also affected the public interest and resulted in the wastage of public resources and constituted bad governance

Impugned notification was declared to have been issued without lawful authority and of no legal effect

Constitutional petition was allowed.

Civil servant is liable to serve anywhere throughout the province or throughout Pakistan as the case may be, he cannot claim posting of his own choice at a particular post

Expertise of civil servants is spoiled when they are specialists in teaching and are posted against an administrative post

Such deputationists often opt for deputation to other departments once they complete their normal tenure.

Post of the petitioner admittedly did not exist at the moment, therefore, the transfer of the petitioner on a post, which did not exist, had put the petitioner to a disadvantageous position as to his appointment and promotion and holding of his present post

Respondents had been unable to justify that any such post had been created, therefore, the action taken by the respondents was held not to be in consonance with their rules and the availability of the post

Constitution petition was accordingly disposed of with a direction to the competent authority to ensure proper posting of the petitioner as per his appointment by way of promotion at the place of his posting.

Notification of posting/transfer transpired that the department had not committed any material irregularity, discrimination or illegality as the matter of transfer/posting of any government officer/official in routine was purely in the domain of the concerned competent authority which could not be challenged in the Court of law in writ jurisdiction

Petitioner had remained posted in the district since the year 2013 and was also unable to show that the concerned post did not exist where she was being transferred

Alleged mala fides in her posting/transfer were not proved from the record on the file

Department was fully empowered by law to transfer/post any subordinate government officer from one place to another and transfer of civil servant could be made by the competent authority in the exigency of services and in the public interest

Writ petition was dismissed.

Contention that the transfer order issued illegally during academic session had no substance as she had not produced any document to show that teaching staff of an institution could not be transferred during academic session

So far as contention that transfer order was a result of political influence, Supreme Court observed that a post of lecturer was lying vacant in transferee college which was advertised and after conducting test and interview, the concerned authorities filled the same by transferring the appellant

Respondents had not explained in their comments as to why the newly appointed candidate was not posted in the relevant college

Impugned notification to the extent of adjustments of the appellant and private respondent was cancelled

Concerned authorities were directed to reissue the order in a transparent manner

Appeal was accepted.

Transfer of a government official from one place or post to another to meet the exigencies of service was within the exclusive domain and competence of the competent authorities of the executive organ of the State and, ordinarily, it is not amenable to interference except in extraordinary circumstances

Said principle is subject to the condition that the terms and conditions of service are not adversely affected

Moreover, an official has no vested right to claim to be posted/transferred to any particular place of his choice, nor is there a vested right to continue to hold a particular post at a particular place

Transfer and posting of a government servant is limited to the given tenure, if any, or at the pleasure of the competent authority

Question of whether the posting and transfer made by the competent authority was in the public interest is not open to judicial review by a tribunal or court and utmost caution and restraint ought to be exercised in interfering with or encroaching upon the exclusive domain of the executive authorities

Decisions in connection with posting and transfer of government servants must not be subjected to judicial scrutiny unless a law has been clearly violated or mala fide and malice is established without the need for making an inquiry

Interference of the Tribunal or courts in matters relating to postings and transfers is, therefore, an encroachment upon the executive domain and in breach of the seminal principle of separation of powers embedded in the Constitution.

Petitioner through writ sought a direction to the respondents to adjust/transfer her within the local limits of specific union Council

Validity

Departmental Recruitment Committee had recommended the petitioner to be appointed against a post of EST (Elementary School Teacher) (BPS-14) in the Union Council 'J' but the respondents had adjusted the petitioner against a post of DM (BPS-16) in another School beyond the local limits of Union Council 'J'

Petitioner was entitled to be adjusted/ posted in Government Girls School situated within the limits of Union Council 'J' and if a post of Elementary School Teacher (BPS-14) was not lying vacant within the limits of Union Council 'J' then the petitioner was directed to be adjusted/posted in Government Girls School situated within the limits of Union Council 'D'

Writ petition was allowed, in circumstances.

Petitioner, who was regularized by the authorities on the basis of judgment passed by Division Bench of the High Court, was posted at district 'M' but he approached the authorities for his posting at district 'L'

Due to no response, petitioner approached the High Court and sought directions regarding his pending application

Petitioner again approached the authorities for compliance of directions issued in said petition and when no response was received, he filed another constitutional petition

Authorities submitted report and parawise comments and attached certain documents including the impugned order wherein it was concluded that certain important facts were not submitted before the Provincial Selection Board at the time of recommendations for regularization of the petitioner and his subsequent clearance for promotion on regular basis

Validity

Matter with regard to the regularization and subsequent promotion was put by authorities before the Provincial Selection Board where they could have pointed out all the facts and grounds and objections on the regularization and promotion or even could defer the matter till the decision of petition for leave to appeal pending before the Supreme Court but instead they proceeded to grant regularization and promotion to the petitioner after approval from the Chief Minister

Authorities had not mentioned the relevant law/rule under which decision of Provincial Selection Board could be challenged by the Administrative Department, hence, the impugned order was sketchy and non-speaking

Constitutional petition was allowed, impugned order was set aside and the authorities were directed to give posting to the petitioner.

High Court observed that common practice has developed that constitutional petitions are filed before the High Court seeking posting or questioning transfer

Such petty issues should not be brought before the High Court under Art. 199 of the Constitution and the Secretary or Head of the relevant department should be approached first in case posting is denied or delayed after appointment or the employee is aggrieved by his transfer

Secretary/Head of such department shall decide the matter strictly in accordance with law within fifteen days from the date of receipt of his application/representation

Office of the High Court was directed not to entertain any constitutional petition relating to posting and/or transfer unless the above remedy was exhausted by the person approaching the Court.

Grievance of petitioner was that despite successful completion of the process of appointment and issuance of posting order in pursuance thereof, he was not being allowed to join his duties

Petitioner had statedly filed a representation in that behalf before the Administrator concerned, but till date no action was taken thereon

High Court observed that if any application/representation/complaint was filed by the petitioner before the competent authority, the same shall be decided within fifteen days from receipt of the order strictly in accordance with law

Constitutional petition was disposed of accordingly.

Interlocutory orders passed by the Member National Industrial Relations Commission were amenable to the appellate jurisdiction of Full Bench of National Industrial Relations Commission

Full Bench of National Industrial Relations Commission was not available for want of quorum

No one should be rendered remediless when a remedy had been provided by the legislature

High Court had constitutional jurisdiction to rescue an aggrieved party for redressal of his grievance during such interregnum

Employees did not fall within the definition of "workman"

Impugned order was not sustainable, in circumstances

Operation of impugned order passed by the Member National Industrial Relations Commission was suspended till availability of Full Bench of National Industrial Relations Commission

Constitutional petition was disposed of accordingly.

Petitioner sought direction of the High Court to the effect that his transfer order was illegal and the same be set aside

Validity

Petitioner was a civil servant and his service was governed by Civil Servants Act, 1973 and impugned transfer order fell within ambit of terms and conditions of his service

Per S.3(2) of the Sindh Service Tribunals Act, 1973 Constitutional jurisdiction of High Court was barred in the matter

Constitutional petition was dismissed, in circumstances.

Power and procedure of review jurisdiction were governed by S.114 and O.XLVII of C.P.C.; and R.1 of O.XLVII, C.P.C. provide the scope of review jurisdiction

Review, was only permissible and maintainable, if conditions stipulated in R.1 of O.XLVII, C.P.C., were fulfilled, and not otherwise

Matter in the present case, related to "transfer and posting" on a particular post

Said transfer and posting was solicited on basis of mutual transfer

Matter of transfer and posting of civil servant being relatable to the terms and conditions of his service, same fell within the exclusive domain of the Service Tribunal; which was competent Authority to consider the validity of transfer order, if the same was issued without lawful authority, and was coram non judice

Constitutional jurisdiction of the High Court, was ousted by virtue of Art.212 of the Constitution

Transfer, posting and promotion of civil servants, were governed by Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009; and its Part II, R.7(1) related to appointments by promotion or transfer

Assignment of 'transfer and posting' was prerogative of the Government only; and civil servant could not be allowed to decide the place of his posting according to his whims and wishes

Constitutional petition was rightly dismissed by High Court, in circumstances

Review was declined.

Respondent sought rejection of the constitutional petition filed by the petitioner for her transfer and posting on the ground of 'wedlock policy'

Petitioner had challenged the order before proper forum through filing of departmental representation

Contentions of the respondent were that constitutional petition was not maintainable under law keeping in view the bar contained in Art.212(2) of the Constitution, as the question of posting and transfer of a civil servant related to terms and conditions of service, which fell within the jurisdiction of Service Tribunal; that constitutional petition was incompetent as the petitioner had filed the constitutional petition after taking charge of the post and filing of the departmental representation before the proper forum

Plea of the petitioner was that provisions of O.VII, R.11, C.P.C. were not applicable to the proceedings under Art.199 of the Constitution

Validity

Extra-ordinary jurisdiction for seeking relief was subject to non-availability of alternate remedy

Such bar was not absolute and resort could be made to it where the ordinary remedy was not efficacious or otherwise

Service Tribunal had been established under the Service Tribunals Act, 1973, which had exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants and for matters connected therewith or ancillary thereto

Applicability of O.VII, R.11, C.P.C. was immaterial, particularly when there was no dispute about the applicability of C.P.C. to constitutional petition

Mentioning of wrong provision would make no difference or cause no prejudice

Preambles of Civil Servants Act, 1973 and Service Tribunals Act, 1973 showed that both the Acts had not only provided a complete mechanism for the matters relating to the terms and conditions of service of a civil servant, but also dealt with the connected and ancillary matters exclusively

Petitioners had no substantial ground for requiring the cognizance of the High Court in its constitutional jurisdiction

Neither any violation of the Constitution nor of any other statutory provision of law had been violated by the respondents, which under circumstances of the case could appropriately be redressed by the High Court without going and or entering into the details of the disputed facts and/or of recording the evidence

Alternate remedy was evidently available to the petitioner, therefore, intervention of the High Court under constitutional jurisdiction was not warranted, as the petitioner had already challenged the order before proper forum

Application under O.VII, R.11, C.P.C. was allowed and constitutional petition was held to be not maintainable.

Contention of the petitioner was that impugned transfer order was passed during ban period and in violation of rules and instructions

Validity

Constitutional petition under Art.199 of the Constitution was not maintainable in relation to any matter connected with the terms and conditions of service and in respect whereof the Service Tribunal had exclusive jurisdiction

High Court before taking any decision regarding the admission of constitutional petition and or passing order granting interim relief would first decide the question of its jurisdiction

Matter relating to posting and transfer of civil servant related to terms and conditions of service and thus fell within the exclusive jurisdiction of Service Tribunal

Question of posting of government servant squarely fell within the jurisdictional domain of competent authority and even if the order was mala fide, ultra vires or coram non judice, the matter fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court was ipso facto ousted as result of bar of Art.212 of the Constitution

Constitutional petition was dismissed.

Respondents were officials of Sindh Criminal Prosecution Service who assailed their transfer and posting orders issued by the Prosecutor-General

High Court dismissed the petition filed by respondents and maintained the posting orders

Validity

Power of transfer and posting was purposely retained with Prosecutor-General, who was otherwise head of the service under the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009, as he was better placed to make informed decisions vis-a-vis transfer of members of the Service as opposed to Special Secretary, Law and Justice Department

Legislature keeping in view to achieve objects of independence of prosecution service, had, therefore, entrusted power of control, administration and supervision to Prosecutor-General by making him head of the service with sole object to effectuate his administration over the service

Entrustment of such powers essentially include power to "transfer" and "posting" of members of the service, as he was the best judge to post members according to their experience, expertise and professional knowledge

Inbuilt scheme existed whereby powers of transfer and posting were conferred upon the Prosecutor-General by using expression "administration" "control" and "Head of Service" under Ss.5(2), 5(3) & 6(1) of Sindh Criminal Prosecution Service (Constitution, Functions and - Powers) Act, 2009, respectively

Intention of Legislature was to make the Prosecutor-General responsible for administration and control of the service and words "control" would mean that he had the power to transfer and post his subordinates in terms of Ss. 5 and 6(1) of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009

Supreme Court declined to interfere in the judgment passed by High Court

Leave to appeal was refused.