Dr. Muhammad Younas v. Government of Balochistan, Health Department,
Bench: Syeda Tahira Safdar
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This case involved two doctors working in Balochistan's health department who challenged their transfer orders. They had been posted from Quetta to a District Headquarters Hospital in Zhob and argued that the transfer was improper for several reasons: it violated official rules and a 2003 Provincial Cabinet decision on transfer policy, it went against a 2010 ban imposed by the Chief Minister on postings and transfers, and they had not yet completed a required two-year minimum tenure at their previous posting.
The Balochistan High Court rejected their petition. The judge explained that under Section 10 of the Balochistan Civil Servants Act, 1974, every civil servant can be required to serve anywhere within or outside the province, unless they were specifically recruited for a particular area. Since the doctors did not fall into that exception, they had no automatic right to remain at their chosen posting. The court also found that while a two-year tenure was generally considered reasonable, it was not an absolute rule, and each case had to be judged on its own facts. The doctors failed to prove their transfer amounted to "frequent" transfer or that officials had acted with bad faith (mala fide).
The court dismissed the petition but directed the health department to promptly decide the doctors' pending administrative appeals. The case matters because it reaffirms that civil servants generally cannot use courts to block routine transfers unless they can show a legal right, established policy violation, or bad faith by the transferring authority.
یہ مقدمہ بلوچستان کے محکمہ صحت میں تعینات دو ڈاکٹروں سے متعلق ہے جنہوں نے اپنے تبادلے کے احکامات کو چیلنج کیا تھا۔ انہیں کوئٹہ سے ژوب کے ڈسٹرکٹ ہیڈکوارٹر ہسپتال تبادل کیا گیا تھا اور ان کا مؤقف تھا کہ یہ تبادلہ کئی وجوہات کی بنا پر غیر مناسب ہے: اس سے سرکاری قواعد اور تبادلوں کی پالیسی سے متعلق صوبائی کابینہ کے 2003 کے فیصلے کی خلاف ورزی ہوتی ہے، یہ وزیراعلیٰ کی جانب سے 2010 میں تعیناتیوں اور تبادلوں پر عائد کردہ پابندی کے منافی ہے، اور یہ کہ انہوں نے اپنی سابقہ تعیناتی پر لازمی دو سالہ کم از کم مدت بھی مکمل نہیں کی تھی۔
بلوچستان ہائی کورٹ نے ان کی درخواست مسترد کر دی۔ جج نے وضاحت کی کہ بلوچستان سول سرونٹس ایکٹ 1974 کی دفعہ 10 کے تحت ہر سرکاری ملازم کو صوبے کے اندر یا باہر کہیں بھی خدمات انجام دینے کا پابند کیا جا سکتا ہے، سوائے اس کے کہ اسے کسی خاص علاقے کے لیے مخصوص طور پر ب
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2011 P L C (C.S.) 863
[Quetta High Court]
Before Mrs. Syeda Tahira Safdar, J
Dr. MUHAMMAD YOUNAS and anot her
Versus
GOVERNMENT OF BALOCHISTAN, HEALTH DEPARTMENT and another
Constitutional Petition No.131 of 2011, decided on 25th February, 2011.
Balochistan Civil Servants Act (IX of 1974) ---
----S. 10 --Constitution of Pakistan, Art.199 ---Constitutional petition ---Transfer ---Petitioners being aggrieved of order, whereby they were transferred from one place of working to another contended that impugned orders had been made in violation of Rules and Regulations, as well as in violation of decis ion of the Provincial Cabinet ---Section 10 of Balochistan Civil Servants Act, 1974 provided that every civil servant was liable to serve anywhere within or outside the Province concerned, with exception that civil servant was recruited specifically to serv e in a particular area or region ---Petitioners being civil servants, during subsistence of their service, were liable to serve anywhere within or outside the Province ---Petitioners were unable to establish that their case was covered by term `frequent transfer and posting', they had also failed to show any mala fide on the part of concerned authorities while making orders in their case ---Petitioners having failed to make out any case in their favour, their petition was dismissed in circumstances.
Muham mad Usman Yousafzai for Petitioners.
Nemo for Respondents.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioners being aggrieved of order dated 22 -1- 2011, whereby they have been transferred from District Quetta, while posted at District Head quarter Hospital, Zhob, preferred instant petition with contention, that the order has been made in violation of Rules and Regulations, as well as in violation of decision dated 17 - 2-2003 of the Provincial Cabinet, Government of Balochistan. It is their co ntention, that ban has already been imposed on posting and transfer of officials as per directives of Chief Minister Balochistan contained in dated 28 -9-2010, as such impugned order is also violative of the same. Furthermore, they (petitioners) have not co mpleted the required two years period of posting, at a station, while petitioner No.2 has already completed six years as periphery at District Headquarter Hospital, Kohlu. It is further contended, that the order is made without any legal justification, inc ompetently made, and unjustified, thus liable to be withdrawn.
Learned counsel for the petitioners while arguing the matter, mostly relied on the points raised in the petition. The perusal of documents attached with the petition reveals, that through n otification dated 22 -1-2011, the petitioners are transferred from Quetta to District Headquarter Hospital, Zhob, the order questioned before this court. The petitioners have also annexed decision taken by the Cabinet, thereby streamlining Transfer and Post ing Policy in respect of Government servants, also annexed order dated: 28 -9-2010, whereby ban has been imposed on posting and transfer of all grades in all Departments in the Province. The petitioners further annexed copies of the appeals submitted by the m before Secretary, Government of Balochistan, Health Department, Quetta against order of their transfer.
The petitioners are aggrieved of order, whereby they have been transferred and, posted from Quetta to Zhob. As per section 10 of Civil Servant Act , 1974, every civil servant is liable to serve anywhere within or outside the Province of Balochistan with exception that civil servant is recruited specifically to serve in a particular area or region. In view of mentioned provision of law, the petitioner s, being civil servants, and during subsistence of their service, are liable to serve anywhere within, or outside the Province of Balochistan. No legal right exists in view of the same, except provided thereunder. The petitioners, though relied on Cabinet decision, whereby several measures were directed to be adopted by the concerned authorities, while making orders for postings and transfers of their men in service. Though it has been directed, as contained in dated 12 -3-2003, that frequent postings and tr ansfers should be avoided, while reasonable tenure of posting at a station be fixed i.e. at least two years. The petitioners based their claim on this clause. The petitioners in their petition asserted that petitioner No.1 has been transferred to his prese nt post on 24 -12-2009, while respondent No.2 has been posted on 10 -9-2009, as such they have not completed the period of two years. The petitioners have not placed on record the mentioned orders. Both of them have served on present post for a period of mor e than one year. Though, as per cabinet decision as mentioned hereinabove two years period is considered as reasonable tenure, but no hard and fast rule can be made in same respect. Each case is to be seen in its own merits and circumstances. The petitione rs are unable to establish that their case is covered by term frequent transfer and posting. They have also failed to show any mala fide on the part of concerned Authorities/respondents while making orders in their case. In the circumstances the petitioner s have failed to make out any case in their favour.
The petition, being merit less, thus liable to be dismissed, but as the appeals have already been filed by the petitioners, which are still pending before the concerned Authorities, it will be appropr iate to direct the concerned Authorities to decide the same, in accordance with law in shortest possible time. This will meet the ends of justice.
H.B.T./12/Q Petit ion dismissed.