2024 P L C (C.S.) 65
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ
JAVED IQBAL
Versus
FEDERATION OF PAKISTAN through Secretary Communication, Civil Secretariat,
Islamabad and 2 others
C.P. No.807 of 2022, decided on 29th August, 2022.
Constitution of Pakistan ---
----Art. 199--- National Highway Authority Administrative Regulations, 2002, Reglns. 4.10 &
4.12--- General Clauses Act (X of 1897), S.24- A---Constitutional petition---Transfer and
posting--- Reasons for decision ---Scope ---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.
Khan Muhammad v. Chief Secretary, Government of Balochistan, Quetta and others
2018 SCMR 1411 rel.
Syed Muhammad Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 ref.
Sultan Khalid for Petitioner.
Najeebullah Kakar for Respondents Nos.2 and 3.
Date of hearing: 17th August, 2022.
JUDGMENT
GUL HASSAN TAREEN J. ----Through this Constitution Petition, the petitioner
seeks the following prayer:
"a. To declare that the office order/notification No. 22 (1) - Admn. (P -1)/NHA/458 dated
17th May, 2022 to the extent of petitioner (at serial No. 2) is illegal, void and issued
in excess of authority and contrary to law and rules and is to be declared of no legal effect;
b. To set aside the office Order/Notification No. 22 (1) - Admn.
(P-1) / NHA/458 dated 17th May, 2022 to the extent of petitioner and he be allowed as per
regulations to work as Deputy Director ((Maint) Ormara, N -10, Balochistan till his
retirement.
c. To declare that the impugned Notification No.22 (1) - Admn.
(P-1) / NHA/458 dated 17th May, 2022 is passed in complete contravention and violation
of this Hon'ble Court and Apex Court's judgments, as such, of no legal effect.
d. Any other relief which this Hon'ble Court deem fit may also be awarded to the petitioner."
2. The learned Mr. Sultan Khalid, Advocate appearing on behalf of the petitioner states
that on 7th September, 2021, the petitioner was transferred to the post of Deputy Director
(Maint) Ormara No. 10, however, again on 17th May, 2022, he was transferred to the post of
DD (Const) M -9 NHA, Karachi (OPS), just within a period of eight (08) months. He states
that this frequent transfer and posting is violation of the dictum, laid down by Hon'ble Supreme Court in the case of Syed Muhammad Akhtar Naqvi v. Federation of Pakistan,
(PLD 2013 SC 195). He states that the impugned transfer order is also violation of regulation 4.10 NHA Administrative Regulations, 2002 ("Regulations, 2002"). Concluding his submissions, the learned counsel states that the petitioner is of fifty seven years old as such, the impugned transfer order is also violation of regulation 4.12 (3) of the Regulations, 2002.
3. The learned Mr. Najeebullah Kakar, representing the respondents Nos. 2 and 3, has
vehemently opposed this petition on the ground that the petitioner had to relinquish the charge immediately under clause 4.14(i) of the regulations, 2002 which he failed, hence committed misconduct. He stressed that transfer and posting is purely an administrative matter and while passing of the impugned transfer order, the respondents Nos. 2 and 3, had not committed any illegality. He also placed reliance on his written reply and annexures.
4. We have heard the learned counsel for the parties and gone through the referred
regulations and the case law citied at bar. Section 32, Chapter VII, the National High Way Authority Act, 1991, (amended in 2001) conferred powers upon the Authority to make regulations, not in consistent with the rules, on all matters for which regulations are expedient. The Authority made regulations called NHA Administrative Regulations, 2002. The regulations referred to by the petitioner's counsel are reproduced hereunder:
"4.10: The normal tenure of posting of officers and staff in NHA shall be three years on same post, which can be extended for further two years on the recommendations of
Member concerned.
4.12(3): As far as possible, an employee of 57 years or more age shall be posted to the
nearest station of native town and shall not be transferred from one station to the other."
5. The impugned transfer order and the written reply of the respondents Nos. 2 and 3 do
not demonstrate any special circumstances, due to which, the Regulations Nos. 4.10 and 4.12 (3) were deviated and bypassed. The section 24 -A, the General Clauses Act, 1897 imposes a
mandatory obligation upon every executive and public authority, that the order passed by such authority must not be brief and non- speaking. The respondents Nos. 2 and 3 have not
placed on record any document which may transpire that prior to passing of the impugned
order, the transferring authority had deliberated upon the transfer and posting of the
petitioner. Though the Regulation 4.10, does not prescribe a minimum period during which an employee/officer of NHA must serve at his post, however, it does not mean that the Authority without assigning any reason can move an officer from the place he was posted just after eight (08) months or subject the officer to successive transfers in a short period for, this would amount to punishment. Such transfers also affect the public interest and result in the wastage of public resources and constitute bad governance. We place reliance on the case
of Khan Muhammad v. Chief Secretary, Government of Balochistan, Quetta and others,
published in 2018 SCMR 1411. The Hon'ble Supreme Court of Pakistan in the case of Syed Muhammad Akhtar Naqvi v. Federation of Pakistan, published in PLD 2013 SC 195, held as under:
"22 (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 compelling reasons which should be recorded in writing and are judicially reviewable."
6. The petitioner is of 57 years and is at the verge of the retirement. The regulation
4.12(3), casts an obligation upon the respondents that the employees of 57 years or more age shall be posted to the nearest station of native town and not to be transferred frequently. Hence the impugned transfer order is violation of the NHA regulations and the dictum laid down by the Hon'ble Supreme Court of Pakistan and we have no option save, to declare it illegal.
Resultantly, the respondents Nos. 2 and 3 have issued the impugned office
Order/Notification No. 22 (1) -Admn. (P -1)/NHA/458 dated 17th May, 2022, without lawful
authority, as such, is of no legal effect, hence is set aside. The petition is accordingly allowed.
SA/152/Bal. Petition allowed.This 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.