P L D 2020 Balochistan 58
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
MUNIR AHMED KHAN KAKAR and another ---Petitioners
Versus PROVINCE OF BALOCHISTAN through Chief Secretary and 7 others---Respondents
Constitution Petition No. 138 of 2018, decided on 4th June, 2018.
(a) Constitution of Pakistan ---
----Arts. 189 & 190---Judgment of the Supreme Court ---Scope ---Law declared by Supreme
Court becomes law of land under Arts. 189 & 190 of the Constitution and is binding not only
on all courts in Pakistan but also on all organs of the State ---No escape from acceptance
obedience or compliance of an order passed by Supreme Court which is final and highest
court in the country---No one can be allowed to violate such orders whil e taking shelter
behind technicalities ---Effect of judgment of Supreme Court cannot be eroded or nullified
through any executive or administrative instrumentality--- Even legislature cannot destroy,
annul, set aside, vacate, reverse or modify a final judgme nt of court of competent
jurisdiction.
Mir Alam Gul v. Ismail PLD 1990 SC 926; Ashiq Hussain v. The State PLD 1994 SC
879; Province of the Puniab v. Haji Yaqoob Khan 2007 SCMR 554; Syed Sajjad Hussain v. Secretary, Establisbment Division Cabinet Secretariat Islamabad 1996 SCMR 284; Abdul Waheed v. Mst. Ramzanu 2006 SCMR 489 and Sh. Muhammad Rafique Goreja v. Islamic Republic of Pakistan PLD 2006 SC 66 rel.
(b) Constitution of Pakistan ---
----Arts. 199(1)(c) & 4---Constitutional jurisdiction of High Court ---Mandamus, writ of---
Scope ---High Court under Art.199(1)(c) of the Constitution has ample jurisdiction to give
directions to public functionaries to act strictly in accordance with law and in view of Art. 4 of the Constitution---When a statutory functiona ry acts mala fide or in a partial, unjust and
oppressive manner, High Court in exercise of its Constitutional jurisdiction has ample power
to grant relief to aggrieved party.
Pakistan Petroleum Ltd. v. Director General Mines and Minerals PLD 2011 Quetta 1;
Brig. Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 and Pakcom Limited v.
Federation of Pakistan PLD 2011 SC 44 rel.
(c) Balochistan Rules of Business, 2012 ---
----Rr. 3, 6(1), 8(1)(2), 9(4) & 22(2)--- Constitution of Pakistan, Arts. 187(2) & 204(2)(a)---
Transfers of public servants ---Minister, functions of---Delegatus Non Potest Delegare,
principle of---Applicability ---Implementation of judgment of Supreme Court ---Petitioner was
member of Balochistan Bar Council who assailed postings and trans fers of officials made on
orders of provincial minister on basis of notification dated 17- 07-2012---Plea raised by
petitioner was that transfers and postings were being made in violation of judgments passed
by Supreme Court ---Validity ---Secretary concerned was official head of the department who
was responsible for its efficient administration and discipline and for proper conduct of business assigned to department under R.3 of Rules of Business, 2012---Minister had nothing to do with transfers/postings of civil servants and notification dated 17- 07-2012 whereby
powers of transfer/posting were assigned to minister was illegal and void ab initio---Notification dated 17- 07-2012 was not only against principle of Delegatus Non Potest
Delegare but was also agains t provisions of Rules of Business, 2012---High Court directed
that no transfers/postings of civil servants would be made in violation of guidelines issued by Supreme Court in its judgments and same should be implemented in letter and spirit ---High
Court re strained transfer and posting orders on verbal directions of competent authority and
directed to follow provisions of R. 9(4) of Balochistan Rules of Business, 2012---High Court further directed that Administrative Secretary while submitting summary/note t o competent
authority for transfer and posting of any officer, provision of R. 22(2) of Balochistan Rules of Business, 2012 would be strictly followed---In case of any failure on part of State functionary to comply with direction issued by Supreme Court, C hief Secretary as well as
Administrative Secretaries would expose themselves to contempt proceedings under Art. 204(2)(a) of Constitution---Constitutional petition was allowed accordingly.
Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Mahmood Akhtar
Naqvi v. Federation of Pakistan PLD 2013 SC 195 and Khan Muhammad v. The Chief
Secretary Government of Balochistan (Civil Petition No.2812 of 2017) rel.
Khushi Muhammad v. Inspector General of Police Punjab 1999 SCMR 2868;
Amanullah Khan Yousafzai v. Federation of Pakistan PLD 2011 Kar. 451; Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 and Zahid Akhter v. Government of Punjab PLD 1995 SC 530 ref.
(d) Discretion ---
----Principles ---Discretion cannot be exercised in an arbitrary or fanciful manner but
judiciously and in accordance with settled norms of justice, equity and fair play.
Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 rel.
(e) Civil service ---
----Good governance ---Civil servant ---Status ---In order t o improve governance it is
necessary that independent, impartial and professional status of civil service as an institution
is restored---Civil servants are backbone of system and have to be protected against
injustices particularly political victimization enabling them to deliver to best of their abilities
without any fear or favour---Civil servants have to be reassured that they are not subservient
to political executives and are under obligation to remain compliant with the Constitution
and law.
Raja A bdul Rehman, Amanullah Kanrani, Naseebullah Tareen, Aamir Rana, Nadir
Ali Chalgari, Attaullah Langov for Petitioner along with Petitioner Munir Ahmed Kakar.
Abdullah Khan Kakar, Deputy Attorney General and Muhammad Rauf Atta,
Advocate General, assisted by Shai Haq Baloch, Additional Advocate General for
Respondents. Kamran Murtaza and Mazhar Ilyas Nagi asAmici Curiae.
Date of hearing: 29th May, 2018.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .---This petition under Article 187(2)
read with Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the
Constitution") has been filed by Mr. Munir Ahmed Kakar, Member, Balochistan Bar Council and Judicial Commission of Pakistan, seeking implementation of the judgments, passed by the Hon'ble Supreme Court of Pakistan in the cases of "Mustafa Impex v. Government of Pakistan" (PLD 2016 Supreme Court 808) and "Mahmood Akhtar Naqvi v. Federation of Pakistan" (PLD 2013 Supreme Court 195), particularly in relation to the transfers and postings of civil servants and policy decisions taken by the Chief Executive of the Province
without approval of the Cabinet.
2. Messrs Mazhar Ilyas Nagi and Munir Ahmed Kakar, contended that though the
aforementioned judgments were passed in the year 2012/2016, respective ly, and under
Articles 129, 130 and 189 of the Constitution, the same are binding upon all the executive authorities and subordinate Courts, yet transfers/postings and policy decision are being made by the respondents in violation of the judgments in quest ion as well as Schedule IV, Rule
22(2) of the Rules of Business Government of Balochistan, 2012. According to them, the Civil Servants are not only facing the menace of terrorism and target killing, but are also confronted with serious issues of governance due to continuous violation of the principles
enunciated in the said judgments. To substantiate their point of view, they made a reference
to the recent transfers/postings made by the respondents after moving the notice/resolution
for a vote of no- confide nce against the previous regime. The Deputy Commissioners, District
Police Officers and Executive Engineers of those constituencies, members whereof had
moved the said resolution for vote of no- confidence, were transferred by the then Chief
Minister withou t consultation with the Chief Secretary, the Services and General
Administration Department (S&GAD) and heads of the concerned departments. They further
submitted that it is not end of the story, rather after change of the government, the same practice is still going on, which has ruined and lowered the efficiency of the provincial
bureaucracy and in this regard, they once again made reference to the immature transfers of
Mr. Qamar Masood, Additional Chief Secretary (Development), Mr. Rohail Baloch,
Secretary Finance, Mr. Fateh Bangar, Secretary Education, Mr. Pasand Khan Buledi,
Secretary Labour and Mr. Javed Shahwani, Secretary Health being made in violation of
Schedule IV, Rule 22(2) of the Rules of Business merely on political considerations and pressure of vested groups. While concluding their arguments, they further submitted that the
summaries in respect of the aforesaid officers, prepared by the Secretary S&GAD would show that their transfers have been made on political considerations.
3. On the cont rary, Mr. Rauf Atta, learned Advocate General, while not feeling himself
in a position to refute the said contentions, feebly challenged the maintainability of the
instant petition in view of the bar, contained in Article 212 of the Constitution, as the
matter pertains to the terms and conditions of service. He also contended that the powers
under Article 187 can only be exercised by the Hon'ble Supreme Court of Pakistan and this
Court has no jurisdiction to entertain a petition under the said provision of the Constitution.
While concluding his arguments, he further submitted that under Section 10 of the Balochistan Civil Servants Act, 1974, every Civil Servant is required to serve anywhere
within or outside the Province of Balochistan, in any post under the Federal Government, or
any Provincial Government or Local Authority, or a Corporation or Body setup or
established by any such Government.
4. So far as the contention of learned Advocate General regarding maintainability of the
instant petition is concerned, we are not persuaded to agree with such contention for the
following reasons:
i. firstly, the petitioner, who does not fall within the definition of civil servant, as
defined in Section 2(b) of the Balochistan Civil Servants Act, 1974, shall have no
remedy before the Services Tribunal, functioning under Article 212 of the
Constitution and he would be free to avail appropriate remedy. There is no cavil to the
proposition that under Section 4 of the Balochistan Civil Servants Act, 1974, every civil serva nt shall hold office during the pleasure of the Government and, similarly,
Section 10 thereof explicitly provides that every civil servant shall be liable to serve anywhere within or outside the Province of Balochistan in any post under the Federal
Governm ent, or any Provincial Government or Local Authority, or Corporation or
Body setup or established by any Government, however, in the instant case, neither
the aforesaid officials have refused to perform their duties, nor have they approached this Court for reversal of their transfer orders, rather the petitioner, who is
representative of the legal fraternity, has approached this Court in the larger interest of general public;
ii. secondly, there is no cavil to the proposition that the ambit and scope of the power of
High Court under Article 199 of the Constitution is not as wide, as of the Supreme Court under Article 187 of the Constitution to pass any order or issue any direction or decrees for doing "complete justice" and it is also true that the Constitut ion makers
conferred powers to issue such directions, orders, or decrees may be necessary for doing complete justice only to the Hon'ble Supreme Court and not to the High Court, however, in the instant case, the petitioner is not asking to determine/decide rights of
civil servants itself, but has sought the implementation of the aforementioned judgments and issuance of directions to the respondents to act in accordance with law. According to our humble opinion, in addition to jurisdiction under Article 199( 1)(c)
of the Constitution to issue directions to any person including Government, this Court
may also under Article 187(2) of the Constitution 1973 direct implementation of orders passed by the Hon'ble Supreme Court of Pakistan. In this regard, reference c an
be made to the cases of "Khushi Muhammad v. Inspector General of Police Punjab" (1999 SCMR 2868) and "Amanullah Khan Yousafzai v. Federation of Pakistan" (PLD 2011 Karachi 451);
iii. thirdly, under Articles 189 and 190 of the Constitution, law declared by the Supreme Court becomes law of the land and is binding not only on all Courts in Pakistan, but also on all organs of the State and there is no escape from acceptance, obedience, or compliance of an order passed by the Supreme Court, which is the final and the highest Court in the country and no one can be allowed to violate the same, while taking shelter behind technicalities. It would also be pertinent to mention here that
effect of the Supreme Court judgment cannot be eroded or nullified through any
executive or administrative instrumentality and it is by now settled that even
legislature cannot destroy, annul, set aside, vacate, reverse or modify a final judgment of a Court of competent jurisdiction. In this regard reference can be made to t he cases
of "Mir Alam Gul v. Ismail", (PLD 1990 SC 926), "Ashiq Hussain v. the State" (PLD 1994 SC 879), "Province of the Puniab v. Haji Yaqoob Khan", (2007 SCMR 554), "Syed Sajjad Hussain v. Secretary, Establisbment Division Cabinet Secretariat Islamabad" , (1996 SCMR 284), "Abdul Waheed v. Mst. Ramzanu", (2006 SCMR
489) and "Sh. Muhammad Rafique Goreja v. Islamic Republic of Pakistan" PLD 2006 SC 66 and
iv. fourthly, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and denial of vested right having accrued in favour
of any party would justify issuance of directions by High Court under constitutional jurisdiction to set right the wrong. This Court under Article 199(1)(c) of the Constitution has ample jurisdiction to give directions to public functionaries to act
strictly in accordance with law in view of Article 4 of the constitution. It is by now settled that when a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, High Court, in exercise of its constitutional jurisdiction, has ample power to grant relief to the aggrieved party. In this regard, references can be made to the cases of "Pakistan Petroleum Ltd. v. Director General Mines and Minerals" (PLD 2011 Quett a 1), "Brig. Muhammad Bashir v. Abdul Karim (PLD
2004 Supreme Court 271)" and "Pakcom Limited v. Federation of Pakistan" (PLD 2011 Supreme Court 44).
5. Reverting to merits of the case, it may be stated that public servants are always
considered to be the backbone of a country and a capable and motivated bureaucracy has always played an instrumental role in the economic growth and overall prosperity in many countries. After independence, we inherited a strong bureaucracy having the capacity and capability to take decisions in the larger public interest and resist extraneous pressures and influences, while on the contrary, the political institutions were wea k, as such, a tug of war
started between the bureaucracy and the politicians and in order to tame the bureaucracy, political interference was started. Public servants as the name suggests are servant of the public and not the ruling government. Almost all the laws referring to civil servants resort to
definition given in section 21 of the Pakistan Penal Code 1860 (P.P.C.), however, after
emergence of the Pakistan, the situation changed overnight due to political interference in public service. This phenomenon was also noticed by the father of the nation, who, while addressing a batch of civil servants at Peshawar in April 1948, advised the civil servants in the following words:
"The reason why I am meeting you is that I wanted to say a few words to you who are occupying very important positions in the administration of this province. The first thing that I want to tell you is that you should never be influenced by any political pressure, by any political party or any individual politician. If you want to rai se the
prestige and greatness of Pakistan you must not fall victim to any pressure but do your duty as servants of the people and the state, fearlessly and honestly. The services are the backbone of the State. Governments are formed. Governments are defeat ed.
Prime Ministers come and go, ministers come and go, but you stay on. Therefore, there is a very great responsibility placed on your shoulders. You should have no hand in supporting this political party or that political party, this political leader or that political leader. This is not your business."
The situation further deteriorated in early seventies, when serious attack was made on
bureaucracy's neutrality and more than 1300 senior bureaucrats were compulsorily retired and administrative reforms w ere introduced, while removing their constitutional protection.
Such reforms not only undermined the bureaucracy, but put it on fast track towards complete
impotency and compromises.
7. In order to cope up with the situation, tending to facilitate expediti ous disposal of
Government business and to meet the convenience and requirement of the public, in exercise
of the powers conferred by Article 139 read with Article 129 of the Constitution, "the
Balochistan Government Rules of Business, 2012." were framed a nd Rule 22(1) thereof reads
as under:
"22.(I) Transfers of officers shown in column 2 of Schedule III shall be made by the authorities shown in column 3 thereof or specified by the Government from time to time;
(2) The Services and General Administration Department shall be consulted if it is
proposed to:
(a) transfer the holder of a tenure post before the completion of his tenure or extend his period of tenure:
(b) require an officer of BPS -17 and above to hold charge of more than one post for a
period exceeding three months.
Note - Tenure of posts shown in column I of Schedule IV shall be as shown in column
2 thereof.
Similarly Schedule III of the Rules of Business, 2012 reads as follows:
SCHEDULE III
OUTSIDE THE SECRETARIAT
1 2 3
1. Office of the all Pakistan
unified group e.g., DMG,
Police Group etc. Services and General Administration
Department in consultation with the
Department concerned.
2. Other officers holding senior
scale posts normally held by
officers of the Civil Service of
Pakistan Ditto.
3. Heads of Attached Department Ditto.
4. All other Officers not covered
by S.No.1 to 3 above. Head of the Administrative Department in
respect of BPS -I6 and above and by the Head
of the Attached Department/ Commissioners in respect of BP S-1 to BPS -15 or as may be
specified by the Government from time to
time.
5. Officer of Police Service of
Pakistan and Balochistan
Police. Home and Tribal affairs Department in
consultation with Inspector General of Police.
IN THE SECRETARIAT
6 Secretaries Services and General Administration Department.
7. Other Officers of and above
the rank of Section Officer -do-
(a) Within the same
Department Secretary
(b) Within the Secretariat
from one Department to another. (a) In case of BPS -20 and above by the Chief
Minister; (b) In case of BPS -18 and BPS -19 by
the Chief Secretary; and (c) In case of BPS -17 by
the Secretary S&GAD. or as may be specified by
the Government from time to time
8. Officials upto the rank of
Superintend ent:-
(a) Within the same
Department Secretary
(c) Within the Secretariat
from one Department to
another Secretary S&GAD
8. Keeping in view the continuous violation of the Rules of Business and frequent
transfers/postings on political and extraneous considerations, the Hon'ble Supreme Court of Pakistan in the case of "Mahmood Akhtar Naqvi v. Federation of Pakistan" (PLD 2013 SC 195), commonly known as Ms. Anita Turab's case, held as under:
"(i) Appointments, Removals and Promotions: Appointments, removals and promotions must be competent made in accordance with the law and the rules made thereunder; where no such law or rule exists and the matter has been left to discretion, such
discretion must be exercised in a structured, tr ansparent and reasonable manner and in
the public interest.
(ii) Tenure, posting and transfer: When the ordinary tenure for a posting has been
specified in the law or rules made thereunder, such tenure must be respected and cannot be varied, except for com pelling reasons, which should be recorded in writing
and are judicially reviewable.
(iii) Illegal orders: Civil servants owe their first and foremost allegiance to the law and the Constitution. They are not bound to obey orders from superiors which are ill egal or
are not in accordance with accepted practices and rules based norms; instead in such situations, they must record their opinion and, if necessary, dissent.
(iv) OSD: Officers should not be posted as OSD except for compelling reasons, which must be recorded in writing and are judicially reviewable. If at all an officer is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest."
9. It is also worth mentioning that in pursuance of the aforesaid guidelines, the then
Chief Secretary Balochistan issued Notification No.SO(Judl:) 790/ S&GAD/2012/1218- 1368
dated 13th December, 2012; operative part whereof reads as under:
"All concerned are directed to strictly follow the relevant law, rules, regulations and
policies issued by the Government time to time dealing with the above referred matters of civil servants. Moreover, above guidelines/instructions set forth by the Hon'ble Supreme Court of Pakistan must be implemented in letter and spirit. The
failure of a state functionary to apply a legal principle which is clearly and
unambiguously attracted to a case may expose him to contempt proceedings under
Article 204(2)(a) of the Constitution of Islamic Republic of Pakistan."
10. Mr. Mazhar Ilyas Nagi contended that though the judgment in question was passed in
the year 2012 and under Articles 129, 130 and 189 of the Constitution, the same is binding upon all the executive authorities of the Province as well as subordinate Courts, yet transfers
and postings are being made by the respondents in violation of the judgment in question,
notification issued by the then Chief Secretary as well as Schedule IV, Rule 22(2) of the Rules of Busine ss, 2012. During the course of hearing, we were informed that the
respondents in derogation of the Rules of Business are running the affairs of the government
and making transfers postings according to the provisions of Notification No.S.O.(R -1)-
3(9)/2012 S&GAD/2016 -2215 dated July 17, 2012, whereby Ministers incharge have been
declared as authority for postings/transfers of employees in BPS -I 7 and below and the Chief
Minister in case BPS- 1 8 and above. The said notification goes to contrary to the Rules of
Business, 2012 and it is not a statutory instrument and having no force of law. Such notification cannot be issued in derogation of Rules of Business, framed in exercise of power
under Article 139. In exercise of these powers, Ministers have been frequently transferring
employees almost on monthly and sometimes on weekly basis. The said notification has been issued in supersession of notification No.S.O.(R -1)-3(9)S&GAD/2011/2846- 2946 dated 2nd
November, 2011 and it has no value being contrary to the Rules of Business of 2012. Such
notification cannot hold the field for a moment being contrary to the law and no
transfers/postings could be made in violation of the Rules of Business. While holding such view, we are fortified from the well celebrated judgment of the Hon'ble Supreme Court of Pakistan in the case of "Mustafa Impex Karachi v. Government of Pakistan" (PLD 2016 SC 808), wherein the Hon'ble Supreme Court held as under:
"Following the Rules of Business, 1973 was mandatory and binding on the Government and a failure to follow them would lead to an order lacking any legal validity. Framer of rules was as much bound by the content thereof as anyone else was subject thereto. Constitutionally mandated rules (such as the Rules of Business, 1973) were closel y intertwined with the concept of good governance for and in the
public interest. Allowing a departure therefrom would be detrimental to open and transparent forms of governance. To allow the Executive to depart from the language of the Rules of Business, 1973 in its discretion would be to permit, and legitimize, unconstitutional executive actions."
11. The moot questions, which require to be answered are as to whether the Minister has
power to post or transfer any officer or whether such powers can be granted to him being not
permitted by the rules? Before answering the said questions and dilating upon the rival
contentions of the parties, it would be appropriate and advantageous to reproduce herein below Rule 6(1) and Rule 8(1) and (2) of the Rules of Busi ness, 2012, which lay down, the
functions of the Provincial Minister and the Secretary:
"6. Functions of the Minister and Advisors.
(1) Minister. A Minister shall:
(a) be responsible of policy matters and for the conduct of business of his Department;
Provided that in important political, economic or administrative matters, the Minister
shall consult the Chief Minister.
(b) submit cases to the Chief Minister through Chief Secretary as required by the
provisions of these rules;
(c) keep the Chief Minister informed of any important case disposed of by him without
reference to the Chief Minister; and
(d) conduct the Business relating to his Department in Assembly;
"8. (1). "A Secretary shall:
(a) assist the Minister in formulation of policy and bring to the notice of the Minster
cases which are required to be submitted to the Chief Minister under the rules;
(b)) duly execute the sanctioned policy;
(c) be the official head of the Department and be responsible for its efficient
administration and discipline , and for the proper conduct of business assigned to the
department under rule 3;
(d) submit all proposals for legislation to the Cabinet with a approval of the Minister;
(e) be responsible to the Minister for the proper conduct of the business of the department
and keep him informed about the working of the department and of any important
cases disposed of without reference to the Minister;
(f) keep the Chief Secretary informe d of important cases disposed of in the Department;
(g) where the Minister's orders appear to involve a departure from rules, regulations or
Government policy, resubmit case to the Minister inviting his attention to the relevant rules, regulations or Government policy and if the Minister still disagrees with a Secretary, the Minister shall refer the case to the Chief Minister through Chief Secretary for orders;
(h) subject to any general or special orders of the Government, issue orders specifying the cases or class of cases which may be disposed of by an officer subordinate to the
Secretary; and
(i) be responsible for the careful observance of these rules in his Department;
2. While submitting a case for the orders of the Minister, it shall be duty of the S ecretary
to suggest a definite line of action."
12. A bare perusal of the aforementioned rules would show that the functions of Minister
and Secretary are altogether different. The Minister only attends to policy matters and conducts the business relating to his department in the provincial assembly; whereas, the administration of the department vests in the departmental hierarchy acting through the Secretary. His position is at the apex of the department, any attempt, therefore, to sideline or marginalize Secretary or to circumvent him or to otherwise curtail his powers directly or
indirectly would be contrary to law and of no legal effect. Besides, assisting the Minister in formulation of policy, the Secretary being official head of the department, is responsible for its efficient administration and discipline, and for the proper conduct of business assigned to
the Department under rule 3. In such view of the matter, we are of the considered view that the Minister has nothing to do with the transfers/postings of civil servants and the Notification dated July 17, 2012, whereby the powers of transfers/ postings were assigned to the Minister, is absolutely illegal, void ab initio. The said Notification is not only against the principle of Delegatus non potest delegare but is also runs against the Rules of Business, 2012. While holding this view we are fortified from the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case of "Khan Muhammad v. The Chief Secretary Government of Balochistan" (Civil Petition No.2812 of 2017), wherein the Hon'ble Mr.
Justice Qazi Faez Isa, speaking for the Court, observed as under:
"We therefore have no hesitation to hold that the notification of February 3, 2014 to
the extent of item 12 (reproduced in paragraph 5 above) which grants the Minister the
power to post/transfer a civil servant is ultra sires the Rules and the scheme of
governance envisaged in the Constitution and therefore is of no legal effect. Needless to state that if there are similar notifications or powers granted to ministers with
regard to the posting/transfer of civil servants at any other department which negate
the Rules and the scheme of governance envisaged in the Constitution those would
also be of no legal effect."
13. It is pertinent to obs erve that in view of the Government Servants Conduct
Rules, 1979; a public servant stands restrained from approaching a legislator. Similarly, a
government servant cannot take part in political activities nor supposed to use political
influence because it amounts to misconduct, as defined in Rule 2(1)(f) of the Balochistan (Efficiency and Discipline) Rules, 1992. For the sake of ready reference, the said rule is reproduced hereunder:
2(1)."No Government servant shall, directly or indirectly, approach any M ember of
the National Assembly or a Provincial Assembly or any other non- official person to
intervene on his behalf in any matter."
Unfortunately, contrary to said rule, through the Notification dated 17th July, 2012
the power of transfer/posting has been entrusted to Minister, which compelled the
government servants to have relations and affiliation with the political parties, with the
result, some of the employees have been nominated/elected as members of central
committees etc. of various political part ies. This unhealthy practice and unfortunate situation
has adversely affected the smooth running of official business and also paved a way for them to have lucrative and excellent position, irrespective of their capability, competency and entitlement. Simi larly, the frequent transfer/posting of revenue staff/officers i.e. Sub-
Registrars, Assistant Collectors, Settlement Officers, MBRs and Sr.MBR, who discharged
Judicial functions under the revenue laws, by or at the instance of Revenue Minister
seriously affects the judicial functions sought to be discharged by them, besides leaving far reaching adverse implication and impacts on revenue decisions, lowering the confidence of the people on judicial system.
14. Our attention was also invited towards the statem ent of the then Chief Secretary, viz:
Saifullah Chatta recorded before the Quetta Commission, comprising of his lordship Mr. Justice Qazi Faez lsa, Judge of the Hon'ble Supreme Court of Pakistan, relevant part whereof
reads as under:
"Previously the Chief Secretary used to make all posting orders except those of
Secretaries and Commissioners which was done by the CM in consultation with the Chief Secretary. The system has now been compromised by giving the authority to the CM. The reasons I say that the Ch ief Secretary would better make such postings is
because the Chief Secretary would always adhere to the stipulated duration of the tenure which is to be between 2 to 3 years in a particular post, however, as now the discretion vests in the CM he does not observe the minimum tenure. In addition to this the Minister of a department has the power to post any one in his department from grade 1 to grade 17 which has completely undermined the authority of the Secretary of the Department. The Ministers also do not observe this minimum tenure
requirement. At times Ministers and CM are directly approached by the bureaucrats for a particular posting which is completely against the rules. This too did not happen previously. The Ministers and Chief Minster are required to be responsible for policy, however, the implementation of such policies and to run the administrative units should be the responsibility of the Secretary and Chief Secretary.
As regards the Divisions, which are headed by Commissioners, this system has also been completely destroyed. In this regard previously the Commissioner used to post the Assistant Commissioner who in turn used to post the Naib Tehsildar, Kanoongoh. Patwari and all other postings upto grade 14, and the Deputy Commissioner would
make postings within his District from grade I to grade 16. Now all this is done by the
Ministers which is completely unsatisfactory. This new concentrated all the
administrative powers in the hands of Ministers which is a very bad development. The Minister's p ower should be restricted to policy matters whereas the administrative
powers in the tier mechanism of Commissioners, Secretaries and Chief Secretary. The prevalent system also has another dimension; the bureaucrats are made accountable when things go wrong, including being summoned to court and the Ministers are not so exposed despite the fact that it was the Minister who had made the posting but the blame has to be taken by the Chief Secretary, Secretary, Commissioner and other officers."
15. After going through a number of Summaries produced by the Secretary S&GAD
during the course of hearing, we have painfully observed that it has become a routine practice on the part of civil servants to approach the concerned Minister, MPAs, MNAs and
Senators for getti ng postings against lucrative posts and even such facts have been mentioned
in some of the Summaries. It is shocking to observe that no resistance was shown by the
Offices of concerned Secretaries, Secretary S&GAD and Chief Secretary. Needless to observe t hat such conduct on the part of civil servants tantamount to misconduct, which can
entail severe departmental action against them.
16. We are mindful of the fact that the postings and transfers are within the competence
of the authorities and neither a particular posting can be sought nor asked for by a Government servant and similarly, under section 10 of the Act of 1974, every civil servant is liable to serve anywhere within or outside the province of Balochistan but the said provision of law does not sta te that a civil servant can be posted or transferred by disregarding his
seniority and tenure of post that too without assigning any reason. It also must not escape notice that such discretion cannot be exercised in an arbitrary or fanciful manner, but judiciously and in accordance with the settled norms of justice, equity and fair play. It is the bounden duty of the authority 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 ACRs must be considered, because the previous service should be free from blemish. Reference can be made to the case of "Shah Nawaz Marri v. Government of Balochistan" (2000 PLC (C.S.) 533), the Hon'ble Supreme Court observed as under:
"While agreeing with the reasoning and conclusion as arrived at by his Lordship, the Honourable 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 falls within the prerogative domain of Government, but it must not
escape unnoticed that such discretion cannot be exercised in an arbitrary and 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 beca use the previous service should be free from blemish
"
17. It may be stated that under Rule 22(2) Schedule IV of the Rules of Business 2012, the
posts of Additional Chief Secretary, Chairman CMIT, Members Board of Revenue (MBR), Secretaries, Additional Secretaries, Deputy Secretaries, Under Secretaries, Section Officers,
Head of attached departments are declared to be Tenure Posts and a period for transfer of the
same is fixed for three years, however, due to political pressure and considerati on, frequently
transfers and postings are being made. According to learned amicus curiae, even non- fixing
of tenure does not clothe the government with a power to transfer civil servants frequently at
its whims and wishes without adhering to law. In this regard, reference can be made to the case of "Zahid Akhter v. Government of Puniab" (PLD 1995 SC 530), wherein it was held:
"The normal period of posting of government servant at a station according to the above -referred policy decision of the Government, is three years which has to be
followed in the ordinary circumstances unless for the reasons of exigencies of
services mentioned in the aforesaid policy of Government, a transfer before expiry of
three years period becomes necessary in the opinion of the c ompetent Authority".
18. This Court is cognizant of the fact that each case pertaining to the terms and condition
of the service of the civil servants have its own facts/merits and cannot be treated in the same manner with a single yardstick and strict adherence to the tenure of posting in every case is not possible, however, 'normal period of three years has to be followed in the ordinary circumstances'. The competent authority can make premature transfer of a civil servant, if
satisfied that the transfer involves appointment to higher service or post carrying high emoluments, being made to a post for which the officer has special aptitude, qualification or experience, the officer has proved unsuitable in the post from which he is being transferred, holding a lien, he become available or transfer is on compassionate grounds.
19. We are in agreement with learned amicus curie that all sorts of transfer/posting orders
are sought to be justified in the name of "public interest" without comprehending the implicat ions thereof. We are afraid that as per SI.No.2(3) of the Esta Code (Chapter- Ill),
every Civil Servant is required to be served with three -month notice prior to his proposed
transfer from one station to another to enable him to plan his affairs, however, he can be transferred without prior notice only in the case of exigencies both natural and human induced disaster and public interest. In order to avoid such notice and to justify illegal, immature and frequent transfers on political consideration, it has become a routine practice to use the phraseology of "public interest" and every summary purported such wording.
20. The record of postings/transfers made by the government of Balochistan through the
S&GAD, during the last two years reveals that in most of t he cases tenure was not observed.
Many junior officers have been posted against higher positions rendering senior surplus.
Senior officers, who are not ready to obey illegal orders of their political bosses have been
pin ponged by continuous postings. They are neither given duties nor postings at any of the
places and in this regard the learned amicus curiae made a reference to the notification
No.SA/111- 1-1(25)/ 2018- S&GAD dated 9th April 2018, whereby in order to frustrate the
directions of the Hon'ble Supreme Court of Pakistan in Anita Turab's case, the Provincial
Government has accorded sanction to the creation of 15 temporary posts of Members (B -
21/13- 20) in Chief Minister Inspection Team (CMIT) for adjustment of the following
officers, awaiting posting in the S&GAD for a long time:
"i) Mr. Muhammad Hashan Tareen (PAS/BS -2I
ii) Mr. Mather. Niaz Rana (PAS/BS -2I)
iii) Mr. Akhter Muhammad Kakar (BCS/BS -21)
iv) Mr. Umar Khan Babar (BCS/BS -20)
v) Mr. Noor Muhammad Jogezai (BCS/BS -20)
vi) Mr. Bashir Ahm ed Bangulzai (BCS -BS-20)
vii) Mr. Shahid Saleem Qureshi (BCS/BS -20/0ffg:)
viii) Mr. Eazaz Aslam Dar (PAS/BS- 20)
ix) Mr. Taseer Jamal Alizai (PAS/BS -20)
x) Mr. Naseer Khan Kashani (PAS/BS- 20)
xi) Mr. Sher Yar Taj (PAS/BS- 20)
xii) Mr. Ali Gul Kurd (BSS /BS-20)
xiii) Mr. Riaz Ahmed (BSS/BS -20)
xiv) Mr. Zahid Saleen (BSS/BS -20)"
21. In order to improve governance, it is necessary that independent, impartial and
professional status of the civil service as an institution is restored. The civil servants, being backbone of the system, have to be protected against injustices particularly political victimization enabling them to deliver to the best of their abilities without any fear or favour. They have to be reassured that they are not subservient to the political executives and are under obligation to remain compliant with the Constitution and law. We have painfully observed that most of the transfers have been made on the verbal directions of the high ups and summaries thereof have subsequently been submitted for obtaining the approval/confirmation are just a formality and were completely devoid of any meaningful
discussion about merits/demerits of the decision taken in haste. It appears that notification of postings/transfers without due process of deliberations is the root cause of poor governance. Had the concerned Department been given the chance to process the proposals properly
before formal notification, many bad decisions could have been averted. It is therefore, imperative that the prevailing practice of notification of postings/transfers on verbal orders of the high ups is stopped immediately and instead the system of submission of self -contained
summaries is made mandatory for an informed/appropriate decision by the competent authority. The summaries so moved must include the information i.e. title and grade of the post to be fill ed, grade and cadre of the officers eligible for posting there against [Relevant
Service Rules], Particulars of officers proposed to be transferred/posted, [grade/cadre should match with the prescribed eligibility criteria], tenure of the officer to be shuffled, profile card of officers in the panel, performance evaluation reports of officers in the panel and status of
inquiries and NAB/corruption cases, if any, against the officers in the panel. Similarly, in
case of administrative secretaries and equivalent, commissioners, deputy commissioners and assistant commissioners a panel of 3 officers shall be suggested for selection of the most suitable one for the position intended to be filled. Same principle shall be applied for posting of heads of attached Departments, to be made by the S&GAD as provided in the Balochistan Government Rules of Business, 2012. In exceptional cases where posting of a junior officer against a senior post or premature transfer is inevitable, prior endorsement from a committee led by the Chief Secretary with ACS (Dev), SMBR, Secretary S&GAD, Law and Home
Departments as members shall be mandatory. The committee members shall be personally responsible about the soundness of the proposal. Proper record of the deliberations shall be maint ained and produced as and when required.
22. It is also worth mentioning that premature and frequent transfer/posting is also a
burden on the government exchequer and heavy amount is incurred under the head of
TA/DA. Similarly, due to political reasons, the posting of junior officers against the higher
grades creates uncertainty and heartburning among the senior officers. Though in this regard
a decision was taken by the Provincial Cabinet and Regulation- 1 dated 12th March 2003 was
also issued by the Servic es and General Administration Department, but the same has never
been acted upon, the regulation reads as under:
"The Cabinet decided that in order to streamline the posting and transfer policy the
following measures be adopted: -
i) Pre-mature posting/tra nsfers is a burden on the Government exchequer and heavy
amount is incurred under the head of T.A/D.A, therefore, it should be avoided.
ii) Posting/transfer in Home district should be discouraged/not allowed.
iii) Junior officer should not be posted agains t higher grade posts as it creates uncertainty
amongst the senior officers.
iv) Frequent posting/ transfer should be avoided
v) A reasonable tenure of posting at a station may be fixed i.e. at least two years.
vi) All postings/transfers should be processed as per laid down Rules/procedures."
23. For the discussion made hereinabove, the petition is allowed and the same is disposed
of in the following terms:
i. that no transfers/postings of civil servants shall be made in violation of the guidelines issued by the Hon'ble Supreme Court in the case of Anita Turab and the judgment
should be implemented in letter and spirit;
ii. no transfer and posting order on verbal direction of the competent authority shall be issued, in such a situation Rule 9(4) of the Baloch istan Rules of Business, 2012 shall
be followed;
iii. the administrative Secretary while submitting summary/note to the competent authority for transfer and posting of any officer, provision of Rule 22(2) of the
Balochistan Government Rules of Business, 2012 should be strictly followed;
iv. the Notification dated July 17, 2012 to the extent of empowering the Ministers to post
and transfer a civil servant is ultra vires the Rules and scheme of governance envisaged in the Constitution and therefore is of no legal effect;
v. in view of the dictum laid down by the Hon'ble Supreme Court in case of Khan Muhammad, if there are similar notifications or powers granted to Minister with regard to posting/transfer of civil servants in any other department which negate the rules, would also be of no legal effect;
vi. the summaries so moved must include the information i.e. title and grade of the posts to be filled, grade and cadre of the officers eligible for posting there against [Relevant Service Rules], particular of officers proposed to be transferred/posted, [grade/cadre
should match with the prescribed eligibility criteria], tenure of the officer to be shuffled, profile card of officers in the panel, performance evaluation reports of officers in the panel and status of inquiries and NAB corruption cases, if any, against the officers in the panel.
vii. in case of Administrative Secretaries and a equivalent, Commissioners, Deputy Commissioners and Assistant Commissioners a panel of three officers shall be suggested for selection of the most suitable one for the position intended to be filled. Same principle shall be applied for the posting of heads of attached departments, to be made by the S&GAD as provided in the Balochistan Government Rules of Business, 2012.
viii. in exceptional cases where posting of a junior officer against a senior post or
premature transfer is inevitable, prior endorsement from a committee led by the Chief Secretary with ACS (Dev), SMBR, Secretary S&GAD and Law Department as Members shall be man datory. The committee members shall be personally responsible
about the soundness of the proposal. Proper record of the deliberations shall be maintained and produced as and when required.
ix. in case of any failure on the part of state functionary to comply with the said directions issued by the Hon'ble Supreme Court, the Chief Secretary as well as Administrative Secretaries will expose themselves to contempt proceedings under Article 204(2)(a) of the Constitution.
We also record appreciation for the assi stance provided by Mr. Muhammad Rauf
Atta, learned Advocate General and Mr. Mazhar Ilyas Nagi, amicus curiae during the
proceedings.
A copy of this judgment be sent to the Chief Secretary as well as Secretary S&GAD,
Govt. of Balochistan, with direction to streamline the affairs regarding transfer/posting in
line with the principles annunciated in Anita Turab's case. They are further directed to
circulate the copies of this judgment amongst all the Secretaries, Head of attached
departments, Commissioners and Deputy Commissioners and they are further required to
comply with this judgment in letter and spirit and report compliance within one month.
MH/184/Bal. Petition alloweThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.