Transfer of employee

2020 PLC(CS) 759 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S.10Transfer of employeeBar of jurisdiction contained in Art.212(2) of the ConstitutionScopeContention of employee was that he had been transferred prematurelyValidityMatter with regard to transfer and posting of an employee was related to terms and conditions of serviceConstitutional jurisdiction of High Court in the matters of terms and conditions of service was barredService Tribunal was not functioning and employee had no other adequate remedy in the present case

Question of bar of jurisdiction of High Court under Art. 212(2) of Constitution would not come into play till the establishment and actual functioning of Service Tribunal

Petitioner was serving as Secondary School Teacher (BPS-17) and aspiring for high post while post of Controller, Board of Intermediate and Secondary Education, had been upgraded from BS-18 to BS-19

Employee being officer of BPS-17 was not eligible for holding the higher post of BPS-19

Posting of junior officer against the higher grade discouraged the senior officer

Rules of posting and transfer were to be followed

Petitioner had no right to claim posting against a particular post

Transfer and posting were the policy decision of the government

Government was the best judge in the policy decision

Court was not to sit in policy matter unless it appeared to be arbitrary or abuse of process of law

Posting and transfer of an employee was the domain of competent authority

Every civil servant was liable to serve within the Province

Constitutional petition was dismissed, in circumstances.

2019 PLC(CS) 488 PESHAWAR-HIGH-COURT Judicial Precedent

Transfer of employeeMatter with regard to terms and conditions of serviceBar of jurisdiction contained in Art. 212 of the ConstitutionAlternate remedyEffectService Regulations were applicable to the petitionersMatters with regard to terms and conditions of service would come within the domain of Service TribunalConstitutional jurisdiction of High Court in such matters had been ousted under Art. 212 of the Constitution

If transfer order was passed on the basis of mala fide or was coram non judice or was in violation of any rules even then same could only be challenged before Service Tribunal

Matter regarding transfer of a civil servant was one of the incident of terms and conditions of service which could not be agitated before the High Court

Petitioners-employees had alternate adequate and efficacious remedy before Service Tribunal for redressal of their grievance

Constitutional petition being not maintainable was dismissed in circumstances.

2019 PLC(CS) 175 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Transfer of employeeDelegated powers, exercise ofContention of petitioner-employee was that impugned order was based on mala fide and was without jurisdictionValidityEmployee had been transferred in the same Institute and against the same postTransfer of petitioner was not disadvantageous to the employeePlea of mala fide was not supported by any tangible material

Transfer in ordinary course should not be made till completion of tenure of three years but department could make transfer in the exigency of work before that period

Employee was liable to be transferred in the administrative exigencies from one place to another

Competent authority had prerogative to transfer any employee

Court was not to interfere in posting and transfer matters when there was no element of mala fide or such plea was taken without any substance

No right of the petitioner, in the present case, had been infringed, transfer and posting was part of service and it was for the authority to determine where services of any staff member were required

Department had exercised delegated powers while passing the impugned order which could not be termed as without jurisdiction or without lawful authority

Impugned order had been passed in the interest of department

Plea of mala fide of department while passing the impugned order was devoid of any merits

Constitutional petition was dismissed, in circumstances.

2019 PLC(CS) 1533 KARACHI-HIGH-COURT-SINDH Judicial Precedent

R.3(2)Sindh Service Tribunal Act (XV of 1973), S.4(b)Transfer of employeeExpression 'terms and conditions' of serviceScopeContention of employee was that impugned transfer order was based on mala fide intentionValidityTransfer order of a Civil Servant would fall within the ambit of "terms and conditions" of serviceExpression 'terms and conditions' of service would include transfer of posting of employee

Service Tribunal had exclusive jurisdiction in the matter with regard to terms and conditions of service of civil servants

Employee had no vested right to be posted against a particular post

No question of infringement of right of employee would arise in the present case

Provisions of Art. 212 of the Constitution ousted the jurisdiction of all other Courts except Service Tribunal in the matters of "terms and conditions" of service

Order of departmental authority even though without jurisdiction or mala fide could be challenged only before Service Tribunal

Constitutional petition was dismissed in circumstances.

2018 PLC(CS) 394 PESHAWAR-HIGH-COURT Judicial Precedent

Arts. 199 & 212Constitutional petitionMaintainabilityCivil serviceTransfer of employeeBar of jurisdiction contained in Art.212 of the ConstitutionScopeContention of employee was that he had been transferred in violation of tenure policyValidity

Transfer order of employee could not be challenged before High Court as the same fell within the purview of terms and conditions of service

High Court was barred to entertain matter with regard to terms and conditions of service

Constitutional petition was not maintainable in circumstances

Notices issued to the respondents were recalled

Employee if so advised could seek his appropriate remedy as provided under the law

Constitutional petition was dismissed.

2018 PLC(CS) 664 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Electric Power CompanyNon-statutory rulesEffectTransfer of employeeScope

Employee had no vested right to remain posted at a place of his own choice nor could he insist that he must be posted at one place or the other

Petitioner-employee was liable to be transferred in the administrative exigencies from one place to another

Transfer of an employee was not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in absence of any specific indication to the contrary

Impugned order was passed in pursuance of duly adopted transfer/posting policy

Employer company had no statutory service rules

Constitutional petition against impugned order was not maintainable

Competent authority had prerogative to transfer any employee and Courts should refrain from interfering in posting and transfer when there was no element of mala fide

Employee had failed to establish element of mala fide on the part of employer company while passing the impugned order

Constitutional petition was dismissed in circumstances.

2018 PLC(CS)N 111 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Rr. 3.1 & 3.2Transfer of employeeTraveling allowance, payment ofTransfer for public convenienceScopeTraveling allowance was not paid to the employee on the ground that he was transferred on his own requestValidity

When a civil servant was transferred otherwise than for public convenience then copy of said transfer order was to be sent to the Audit Officer with endorsement stating the reasons for such transfer

If no such endorsement was made in the order, it would be construed as an order of transfer for public convenience alone

Mere existence of request of a civil servant for transfer would not mean that transfer had been made on such request unless a specific endorsement in that regard figured in the transfer order itself

Neither any such endorsement with regard to transfer of employee had been made in the transfer order of the employee nor even certificate from the Head of the Office was available on the file

Transfer order of the employee was necessarily to be construed as an order of transfer for public convenience

Civil servant could not be denied transfer grant/allowance on his transfer

Authorities were directed to release the transfer allowance immediately

Constitutional petition was allowed in circumstances.

2018 PLC(CS)N 83 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Transfer of employeeScope

Employee filed constitutional petition wherein she sought direction for her posting near her residence which was dismissed

Validity

Employee had herself selected the school where she was posted

Employee at such belated stage could not be allowed to re-choice the posting of her choice

No illegality or perversity had been pointed out in the impugned order passed by Single Judge

Intra-Court appeal was dismissed in limine.

2016 PLC(CS) 920 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Transfer of employeeScope

Plea of petitioners was that transfer could be made only in public interest and on administrative grounds or where exigencies of a situation so demanded

Validity

Petitioners had not been victimized

Question of downgrading of any of the petitioners did not arise in the present case

Services of petitioners were liable to be transferred to any part of Pakistan

Petitioners were going back on their commitments by challenging their transfer orders

Transfer orders did not suffer from any infirmities nor had been passed in flagrant violation of any principle and same could not be struck down

Constitutional petition was dismissed in circumstances.

2016 PLC(CS) 526 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Transfer of employeeMala fideEffectTwo orders of transfer of employee were made within a span of a fortnightValidity

Employee (petitioner) was not a government servant but was an employee of Local Government Board which was an autonomous body

Where a person complained of the violation of statutory rules or had challenged an order which was tainted with mala fides then constitutional petition was maintainable

Employee was ordered to be repatriated to an authority which had ceased to exist and had become defunct

Validity

Employee was not treated fairly, justly and equitably

Transfer of employee was not in the public interest or was not necessitated by an exigency or his services were not required for a particular post or for a particular station

Employee had been made an officer-on-special duty and had been left in the lurch

If courts of law countenanced and approved such exercise of authority then it would make a mockery of law and travesty of justice

Such acts of department would not give a message of hope to the honest and scrupulous persons and might tend to undermine their confidence

Employees of government or autonomous bodies were not to be made rolling stones

Impugned order passed by the department was declared to have been passed without lawful authority and of no legal effect and authority

Employee would continue to discharge his duties at the place where he was performing the same prior to his transfer

Impugned order was set aside

Constitutional petition was accepted in circumstances.

2015 PLC(CS) 1513 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

R. 22Balochistan Service Tribunal Act (V of 1974), S.3Constitution of Pakistan, Arts.199 & 212Constitutional petitionMaintainabilityCivil serviceDeputationistTransfer of employeeTerms and conditions of serviceScope

Remedy for the civil servants/petitioners would lie with the Authority and also before the Service Tribunal if any terms of their service had been violated

High Court had no jurisdiction in the matter

Civil servants/petitioners had not availed the remedy under the law and rules

Constitutional petition, therefore, was not maintainable

Policy governing terms and conditions of deputation of civil servants had not been followed by the authorities rather they remained silent having knowledge of illegality

Borrowing authority was empowered to take disciplinary action against the civil servant on deputation

Lending authority being parent department could initiate proceedings against the accused civil servant under the rules governing the deputationist in its parent department

Both the borrowing and lending authorities despite having knowledge that initial appointment of deputationist was illegal and bogus kept silent for a considerable period which was objectionable

High Court passed direction that there should be no extension in the period of deputation and deputationist should be repatriated to their parent department without any loss of time

Parent department of the deputationist was directed to take disciplinary action not only against them but also against the persons responsible of their appointment and also for their transfer and posting on deputation

Constitutional petition was disposed of in circumstances.

2014 PLC(CS) 912 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 44Writ petitionAlternate remedyScopeCivil serviceTransfer of employee

Contention of petitioner was that department was bent upon cancelling her transfer order on account of political pressure whereas department contended that petitioner got her transfer order issued by using political pressure

Validity

Transfers and promotions of Government employees would fall within the ambit of "terms and conditions" of service and if any Government employee was affected and any policy or rules and regulations were violated then proper forum for redressal was the Service Tribunal

Matters with regard to terms and conditions of service could not be agitated through a writ petition

If any Government employee was transferred violating the policy then such employee had an alternate remedy to approach the Service Tribunal instead of filing a writ petition by the High Court

Writ petition was dismissed in limine.

2013 PLC(CS) 117 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 9Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44Writ petitionTransfer of employee

Petitioner was appointed as Computer Instructor, B-17 on contract basis in the College at place 'S' on recommendation of respective Selection Committee; later on she was posted in college at place 'K'

Through impugned order employee was sent back to her original post in college at place 'S'

Validity

Appointment of petitioner was non-transferable according to one of the conditions of her appointment order; she, in circumstances, was posted in the college at place 'K' by violation of her appointment order as according to Contract Policy, contract appointment was non-transferable

Petitioner having obtained her posting from college at place 'S' to college at place 'K' in violation of said Contract Appointment Policy, and accepted conditions of her appointment order, unlawful order could not be protected through writ jurisdiction

Writ petition was dismissed in circumstances.

2009 PLC(CS) 320 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

R. 3Constitution of Pakistan (1973), Art.199Constitutional petitionTransfer of employeePetitioners had assailed order passed by virtue of which they were transferred from one place of working to another

Petitioners had been transferred from one Local Council to another in the same District by Coordination Officer, which powers had been conferred upon him by the Government vide its letter

Validity

Transfer of government functionary from one place of posting to another was neither punishment nor violation of terms and conditions of service

Nothing was in the appointment letter of the petitioners that they would remain posted at a particular station of their choice and sub-rule (2) of R.3 of Punjab Local Councils Servants (Service) Rules, 1997, did not give any such mandate

Authority had the prerogative to utilize services of the petitioners at a place and against a position of its discretion keeping in view the administrative consideration confronting the Authority

Sub-rules (1) & (2) of R.3 of Punjab Local Councils Servants (Service) Rules, 1997, were 'independent sub-rules and those did not control each other

Sub-Rule (2) of R.3 of Punjab Local Councils Servants (Service) Rules, 1997 did not debar appointing Authority to transfer an employee only on his request and consent

No restriction existed under the law to transfer an employee from one Local Council to another without his consent

Petitioners having rightly been transferred, constitutional petition was dismissed.