BEFORE THE SINDH SERVICE TRIBUNAL AT KARACHI PRESENT: JUSTICE (R) QAISER IQBAL, CHAIRPERSON MR. SHOUKAT ALI MEMON, MEMBER-I MR. IQBAL AHMAD SOOMRO, MEMBER-II APPEAL NO. 428 OF 2017 AMANULLAH MEMON Executive Engineer (BS-18), Provincial Buildings Division-II, Karachi, S/o Muhammad Makhan, Muslim, Adult, R/O, Flat No.15, Block 40, 3" floor Defence Garden DHA-1, Karachi.... VERSUS 1, THE PROVINCE OF SINDH, Through Chief Secretary, Government of Sindh, Karachi. 2. THE SECRETARY Works and Services Department, Government of Sindh, Karachi. 3. SECTION OFFICER (E-I) Works and Services Department Government of Sindh, Karachi 4. ARSHAD HUSSAIN BHUTTO Executive Engineer, Highway Division, Matiari Presently Posted at Executive Engineer, Provincial Buildings, Division II Karachi............... Date of Hearing: 01.11.2017 Date of Judgment: 20.11.2017 Mr. Abdul Salam Memon, advocate for the appellant. Mr. Asif Hussain Mangi, Addl: AG Sindh for respondentsJUDGMENT MR. IQBAL AHMAD SOOMRO, MEMBER-II._ The appellant has preferred this Appeal under section-4 of the Sindh Service Tribunals Act, 1973, as he has been aggrieved by the notification dated 27.04.2017 (hereinafter referred to as impugned notification), whereby he has been transferred from the post of Executive Engineer, Provincial Buildings Division-Il, Karachi and directed to report to Works & Services Department (Secretariat) Karachi. 2. The appellant has, in the memo of appeal, stated that he had been appointed, on regular basis, as Assistant Engineer (Civil) BPS- 17 vide notification dated 13.02.1993 and subsequently promoted as Executive Engineer (BPS-18). The appellant has further stated that during the course of his service since 10‘ December, 2015, he had been transferred and postéd'fiany times apparently by assigning the reason Public Interest and the exigency of service, with the details of transfer and posting as given below:- 8.NO: DATE FROM TO PERIOD 1 10-12-2015 Electric Highway 21 days To Energy-Il Division 30-12-2015 Karachi Thatto 30-12-2015 | Highway Provincial 14 days To Division Highway 12-01-2016 Thatto Divisions Badin 20-1-2016 | Awaiting for | Highway 07 days To Posting Division 26-01-2016 Khairpur 29-1-2016 | Awaiting for | Highway 04 days To Posting Division 1-02-2016 Matiari 29-2-2016 _| Awaiting for | Highways 09 To Posting Division Months 07-12-2016 Sujawal 7 days 22-12-2016 Awaiting for | Provincial 04 To Posting Building Months . 27-04-2017 Division-II, 7 days Karachi3. The appellant has preferred this Appeal on the grounds that there was no personal allegation against the appellant about his performance; rather the entire service tenure of the appellant has been unblemished and stainless throughout. He has further contended that the respondents had issued the notification in violation of the directions of the Hon’ble Supreme Court of Pakistan in the case of Ms. Anita Turab in Constitutional Petition No.23/2012 reported as PLD 2013 SC 195 and has highlighted paragraphs No.04, 13 and 22, whereby the Hon’ble Supreme Court of Pakistan had been pleased to observe as under:- “4. On 12,3.2012, we had directed the Secretary Establishment Division, Government of Pakistan, the Chief Secretaries of the four Provinces and the Chief Commissioner, Islamabad Capital Territory to submit their comments. It was noted in said order that civil servants who act according to law, at times, have to face hardship in the form of immediate transfer or posting as Officers on Special Duty (OSD) even before the completion of their tenure. It was also noticed that frequent transfers, postings and disciplinary proceedings are taken in violation of the law, rules and regulations.” “13. Tenure, appointment, promotion —_ and posting/transfer are of utmost importance in the civil service. If these are made on merit in accordance with definite rules, instructions etc., the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient. It is necessary once again, to hark back to the considerations set out in the speech of Quaid-i-Azam and the eternalwisdom reflected in the Epistle of Hazrat Ali, may Allah be pleased with him, cited at the start of this opinion. It is also relevant to note that the principles of good governance are already envisioned in the Constitution and are also encoded in statutes such as the Civil Servants Act, 1973, the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 and other rules made under the aforesaid Act and in regulations and instructions given in the Civil Establishment Code (Estacode). It is, however, apparent from precedent and civil service matters coming up before Service Tribunals and this Court that problems/difficulties arise for civil servants when the rules of good governance so encoded are breached and the reason for such breach appears to be abuse of discretion. We are aware that matters relating to tenure etc. cannot be put in a strait-jacket and that there is to be an element of flexibility. A balance between'the competing pulls of discretion and rulebased. decision making is a fine one where :perception ‘of faimess and even handed treatment is of utmost importance. It is for this reason that-transparency in decisions relating to tenure'etc. are required to be entrenched and cemented to assure the quality, effectiveness and morale of the civil service. Since executive decisions generally are subject to judicial review, the assurance of transparency is itself, likely to eliminate decision making based on considerations other than merit ... “ “22. The principles of law enunciated hereinabove can be summarized as under:- 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.” 4. Mr. Abdul Salam Memon, learned counsel for the appellant, has vehemently argued that transfer and posting of officers can be made under section-10 of the Sindh Civil Servants Act, 1973 andprocedure for the transfer and posting was also given in ESTACODE Volume-I Civil Establishment Code (Edition 2011) at Page-649 which reads as under:- a. The normal tenure of an officer on the same post should be three years. Posting of an officer on the same post beyond the normal tenure will require concurrence of the competent authority, in each case. 4. Shifting of the officer may be phased in a manner that no dislocation in the official works takes place due to large scale transfers. ©. Ordinarily, three months notice should be given to the officer who is to be transferred. Exception may, however, be made in case the officer is required to be shifted immediately in the public interest with the approval of the competent authority. d. Orders for premature transfers in the Ministries/ Divisions/Departments of the Federal Government should be referred to the Establishment Division; and in the Autonomous/Semi Autonomous Organizations to the administrative Ministry concerned. e. These instructions will not strictly apply to technical and professional officers/experts recruited for particular posts. However, posting/transfer of such officers may also be rotated in their parent departments/cadres as far as Possible in accordance with the rules of the post. [emphasis added] 5. The learned counsel has further argued that the impugned notification, whereby the appellant has been directed to report to the department without any posting, whereas in judgment of Honorable Lahore High Court, reported in 1997 PLC (C.S) 754, it has been enunciated that the transfer orders without posting cannot be made; hence, he has contended that it was violation of such judgment as well. He has further urged that the impugned order could not be termed as order passed within terms & conditions of the service of6 the appellant and that it was also in violation of Sindh Government Rules of Business as well as the principles of good governance. Learned counsel for the appellant has prayed to set aside the impugned notification dated 27.04.2017 being illegal and not sustainable under the law/rules. 6. Mr. Asif Hussain Mangi, learned Additional Advocate General, Sindh while referring to the written statement submitted by the respondent No.2 has contended that the transfer and posting of the appellant had been made on administrative grounds. The written statement of respondent No.2 (Secretary, Works & Services Department, Government of Sindh) at para-3 states that the transfer and postings are made when required on administrative grounds. 7. The written statement submitted\dnbehalf of the respondent No.1 states that the respondent. No.l has adopted the written statement filed by respondent No.2 (Secretary, Works & Services Department;-Government of Sindh). 8. Arguments advanced at the Bar have been heard and relevant record/notifications annexed with the Appeal have been perused. 9. A simple reading of the short history of transfer and posting of the appellant during the period from December 2015 to April 2017, reflected at para 2 hereinabove, along with the notifications annexed with the Appeal, shows that the appellant has been transferred 6/7 times during the short span of December 2015 to April 2017; and in this regard, while making transfers and postings of the appellant, as many as SEVENTEEN notifications, one after another, have been issued by the Works. & Services Department, Government of Sindh, during this brief period, as such it appears to be a case of frequent transfers / postings. 10. While submitting the written statement, the respondent no. 2 (Secretary, Works & Services Department, Government of Sindh) hasmerely stated that ‘the transfer and postings are made on administrative grounds’, without elaborating and recording compelling reasons, if any, in the written statement submitted. 11. Honorable Supreme Court of Pakistan, in Constitutional Petition No. 23/2012 (Petition by Ms. Anita Turab for protection of Civil Servants) has, at para 22(ii), held that: “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.” [emphasis added] 12. In the same case, as pointed out by the learned:counsel for the appellant, Honorable Supreme Court of\Pakistan has, at para 13, further observed that: “Tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these\“are ‘made on merit in accordance with definite rules, instructions etc., the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient ... It is also relevant to note that the principles of good governance are already envisioned in the Constitution and are also encoded in statutes such as the Civil Servants Act, 1973, the Civil Servants (Appointment, Promotion 8 Transfer) Rules, 1973 and other rules made under the aforesaid Act and in regulations and instructions given in the Civil Establishment Code (ESTACODE). It is, however, apparent from precedent and civil service matters coming up before Service Tribunals and this Court that problems/ difficulties arise for civil servants when the rules8 of good governance so encoded are breached and the reason for such breach appears to be abuse of discretion.” [emphasis added]. 13. It has also been held by this Tribunal in the case of Zafar Ali Khokhar v. Chief Secretary to Government of Sindh that: “The respondents could not be allowed to exercise discretion at their whims in an arbitrary manner, they are bound to act fairly, justly in exercise of powers conferred under the law. No compelling circumstances spelled out from the written statement filed by the official respondents, curtailing the ordinary tenure of post specified under the law.” 14., Moreover, we may note that the appellant is a BPS-18) officer (Executive Engineer) and the procedure provided under Rule-9 of the Sindh Civil Servants (Appointment, Prométion-& Transfer) Rules, 1974 is that in case of officer Holding ‘post in BPS-18, the competent authority to make transfer is the Minister concerned and in case of transfer ‘ofan officer before completion of one year of his existing posting, it shall be made with the approval of the Chief Minister through the Chief Secretary. Perusal of the impugned notification assailed in the appeal reveals that there is no mention of the competent authority in the impugned notification dated 27.04.2017 and same is the position in the other notifications annexed with the appeal, issued from December 2015 to April 2017. 15. Thus, the impugned notification dated 27.04.2017, when tested from the above parameters, seems to have been issued without Proper procedure, without jurisdiction, without mentioning compelling reasons (in the written statement, at least) and without exercising discretionary powers in just and fair manner. 16. In view of what has been discussed above, the impugned notification dated 27.04.2017 issued by the respondent no. 2 does nat appear to be in conformity with the laid down procedure and is in9 violation of relevant judgments/case laws cited above. Therefore, it is hereby set aside. However, the department is at liberty to take necessary action against the appellant or any other officer/official in the department, in accordance with the law/rules and also keeping in view the relevant case laws that have shaped the contours of the question of tenure, transfer and posting; as and when reasonable cause arises. 17. Appeal is allowed accordingly, with no order as to costs. 18. Compliance report be furnished to the Registrar of the Tribunal for our perusal in chambers. Sd/- (JUSTICE (R) QAISER IQBAL) CHAIRPERSON, Sd/- (SHOUKAT-ALI MEMON) MEMBER-I Sd/- (IQBAL AHMAD SOOMRO) MEMBER-II