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 while 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 judgment 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 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
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
transfers 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 against 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 restrained 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 to
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, Chief 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 to 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 Abdul 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, respectively, 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
question 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-confidence 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 without 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 contrary, 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 servant 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 Government, 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 Constitution 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 can
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 the 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 Quetta 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 weak, 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 raise 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 defeated. 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 were 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
expeditious 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 and
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 Services and General
unified group e.g., DMG, Administration Department in
Police Group etc. consultation with the Department
concerned.
2. Other officers holding Ditto.
senior scale posts
normally held by officers
of the Civil Service of
Pakistan
3. Heads of Attached Ditto.
Department
4. All other Officers not Head of the Administrative
covered by S.No.1 to 3 Department in respect of BPS-I6
above. and above and by the Head of the
Attached Department/
Commissioners in respect of BPS-1
to BPS-15 or as may be specified by
the Government from time to time.
5. Officer of Police Service Home and Tribal affairs
of Pakistan and Department in consultation with
Balochistan Police. Inspector General of Police.
 IN THE SECRETARIAT
6 Secretaries Services and General Administration
Department.
7. Other Officers of and -do-
above the rank of
Section Officer
(a) Within the same Secretary
Department
(b) Within the (a) In case of BPS-20 and above by the
Secretariat from one Chief Minister; (b) In case of BPS-18
Department to another. 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 Superintendent:-
(a) Within the same Secretary
Department
(c) Within the Secretary S&GAD
Secretariat from one
Department to another
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,
transparent 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
compelling 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 illegal 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 Business, 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 closely 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 Business, 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 informed 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 Secretary 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 observe 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 Member 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 parties. 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. Similarly, 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 statement 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 Chief 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
power 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 getting 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
that 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 state 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 because 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 consideration, 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 competent 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 implications 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 the 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 Ahmed 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 filled, grade and cadre