IRFAN HUSSAIN Versus PROVINCIAL GOVERNMENT
MUMTAZ AHMED, CHAIRMAN.--- Irfan Hussain, Assistant Engineer (E&M/BS-16), has preferred this service appeal under Section 5 of the Gilgit Baltistan Service Tribunal (Amendment) Act, 2022, challenging the legality and validity of Notification No. SWP-Admn-1(3)/2024, dated 10th July 2024, issued by respondent No. 2 with the following prayer:-
"In the light of the above facts and grounds, it is humbly prayed that by accepting this appeal, this Hon'ble Tribunal may kindly set-aside the impugned notification No. SWP-Admn-1(3)2024, dated 10 July, 2024, to the extent of the present appellant and the appellant may kindly be allowed to continue his service as SDO E&M-III Operation/Billing Halqa-II Nagral to Minawar area, Water and Power Division Gilgit"
2. Brief facts of the case are that the appellant is serving as Assistant Engineer (E&M/BS-16) posted as SDO (E&M-III) Operation/Billing Halqa-II Nagaral to Minawar area in Water and Power Division Gilgit, and being victim and has been subjected to repeated transfers made by respondent/department within a short period of time without assigning any rational reason in the impugned notification and in absence of requisite prior approved recommendation from Respondent No.4.
3. The respondents contested the appeal and filed their respective parawise comments/replies, while raising certain preliminary objections and as well as denied the contention raised by the appellant.
4. Learned counsel for the appellant argued that no reason or justification has been given in the impugned transfer/posting order, neither any recommendation obtained from the Chief Engineer Water and Power, Gilgit Region, which was prerequisite prior to transfer of the appellant; submits that no exigency has been mentioned in the transfer/posting order, therefore, the said order is based on mala fide, based on ulterior motive and just to favor the person of their loved ones; argued that no proper posting assigned to the appellant with mala fide intention and the appellant has been politically victimized; contended that the impugned notification is entirely in contravention of previous posting order dated 31.1.2023; argued that in a very short span of time the appellant service has been made rolling stone and posted from one place to another while violating the principle of posting, hence, the impugned posting order may kindly be set aside in the interest of justice.
5. On the other hand, learned law officer as well as Mr. Jibran Rasheed Khan, learned counsel for respondent No. 5, vehemently opposed the contention raised by the learned counsel for the appellant and argued that the appellant is a habitual litigator who always rushes and constantly challenge each and every posting order, while creating hindrance in the normal functioning of the executive authority; contended that previously when the appellant was transferred/posted on 10th October 2022, vide Notification No. SWP-Admn-1(3)/2022/734, the appellant rushed to the Civil Court and succeeded to get status-quo order to disturb the normal course of posting/transfer; argued that the transfer of service of the appellant is part and parcel of terms and conditions of service and envisaged under Section 9 of the Gilgit Baltistan Civil Servants Act, 2011; argued that the instant appeal has been filed without exhausting the departmental appeal, therefore, the same is not maintainable as per Section 5 of the Gilgit-Baltistan Service Tribunal (Amendment) Act, 2022; contented that the posting/transfer of a civil servant is a prerogative of the competent authority and the posting/transfer cannot be made at the wishes and whims of a government servant; argued that the appeal may kindly be dismissed in the interest of justice.
6. We have heard the learned counsel for the parties at length and gone through the record with their able assistance.
7. From the perusal of record and documents annexed with the appeal and the grounds taken therein, it reveals that the main grievances of the appellant is regarding his periodical transfer from one place to the another place within a short span of time and without assigning any cogent and lawful reason, turned the appellant into a rolling stone and is not allowing him to settled down to perform his duties to the best of his ability and up to the satisfaction of his high ups. For the reason such conduct of the respondents is against law, equity and against the principle laid down for the purpose of posting.
8. No doubt the appellant is a civil servant and governed by the terms and conditions of Gilgit-Baltistan Civil Servants Act, 2011 and Section 9 of the ibid Act being the main ingredient, that relates to the posting and transfer of the civil servant is hereby reproduced for the reference: -
"Section 9. Posting and transfer.---Every civil servant be liable to serve anywhere within or outside the Province in any post under the Government of the Gilgit-Baltistan or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government:
Provided that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
As per the above Section 9 of Gilgit Baltistan Civil Servants Act, 2011, desired posting is not the perpetual right of a civil servant, and the department concerned can transfer any civil servant to serve at the given place as given in the posting/transfer order. Moreover, the civil servant cannot refuse compliance on the ground of mala fide, arbitrary and fanciful posting order in general/omnibus nature without substantiating any solid reason and documents. The appellant has failed to point out any term/condition which prohibits the respondent authority to transfer him from one place to another place. It is also pertinent to mention here that the employment carries with it an obligation to serve, whichever place the competent authority posted/transferred the employee on administrative requirement. The appellant failed to establish that he was transferred/posted with mala fide intention by the competent authority. It is worth mentioning here that the employee cannot choose their place of posting and the authority knows where and how best the services of the employee are to be utilized. The impugned posting/transfer order does not any adverse impact on the designation or salary of the appellant. It is also important to note that 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. As per departmental appeal of the appellant (Page 6) that he has serving in the billing sub-division during his entire service from 2007, so in such situation how he can say that he was made a rolling stone during his entire service. Even on perusal of impugned notification dated 10th July 2024, the appellant has been posted from "Water and Power Division Gilgit to Water and Power Division Gilgit with immediate effect."
9. The competent authority can transfer an employee from one place to another on administrative ground and such kind of order docs not violate any right of the employee and the competent authority is best judge to choose the place of posting of an employee for smooth running of the official business and to get maximum benefit of the capabilities.
10. Reliance in this regard as set down by the Hon'ble Supreme Court of Pakistan in case titled. "Tahir Mehmood Abbasi v. District Coordination Officer, Rawalpindi and others (2009 PLC (C.S.) 327), wherein the Hon'ble Supreme Court of Pakistan held as under: -
"It is prerogative of the respondent authority to utilize service of the petitioner at a place and against a position of its discretion keeping in view the administrative ground confronting the authority"
11. Furthermore, there is no bar on the respondent/department to transfer the appellant from one place to another place as per terms and conditions of Section 9 of Gilgit-Baltistan Civil Servant Act, 2011.
For what has been discussed above, we are of the considered opinion that the appeal in hand is misconceived and without any legal force, resultantly we dismissed the same being devoid of force.
Service appeal is disposed off in the above terms. File be consigned to record.
MQ/2/GBST Appeal dismissed.