SUPREME COURT OF AZAD JAMMU AND KASHMIR
[Appellate Jurisdiction]
PRESENT:
Mohammad Azam Khan, C.J.
Ch. Muhammad Ibrahim Zia, J.
Civil Appeal No.142/2015
(PLA filed on 22.04.2015)
Muhammad Ilyas Abbasi, Secretary Communication and
Works Azad Govt. of the State of Jammu & Kashmir,
Muzaffarabad.
…...APPELLANT
VERSUS
1. Azad Jammu & Kashmir Government through
Chief Secretary, New Civil Secretariat,
Muzaffarabad.
2. Secretary Services and General Administration,
AJK Government, Muzaffarabad.
3. Fayyaz Ali Abbasi, Secretary to Prime Minister
Azad Jammu & Kashmir, Muzaffarabad.
4. Mr. Zahid Khan, Secretary Kashmir Liberation
Cell, Azad Jammu & Kashmir, Muzaffarabad.
5. Dr. Mehmood-ul-Hassan, an Officer of B-20,
attached with Services and General Administration
Department, AJK Government, Muzaffarabad.
…RESPONDENTS
2
[On appeal from the judgment of the Service Tribunal
dated 16.04.2015 in Service Appeals No.1167/2014 & 25/2015]
FOR THE APPELLANT: Raja Muhammad Hanif
Khan, Advocate.
FOR RESPONDENT No.4: Mr. Sajid Hussain Abbasi,
Advocate.
Date of hearing: 02.07.2015.
JUDGMENT:
Mohammad Azam Khan, C.J.– The
appellant was posted as Secretary Communication &
Works, Azad Government of the State of Jammu &
Kashmir. Through order dated 26th December, 2014, he
was transferred and attached with the Services and
General Administration Department and charge of the
post was assigned to Mr. Fayyaz Ali Abbasi, Secretary
to the worthy Prime Minister till further orders. The
appellant challenged the said order by way of appeal in
the Service Tribunal. During pendency of appeal another
order was passed on 2nd January, 2015, through which
one, Mr. Muhammad Zahid Khan was appointed by
3
transfer as Secretary Communication & Works. The
appellant also filed an appeal in the Service Tribunal
against the said order. The Service Tribunal after
necessary proceedings through the consolidated
judgment dated 16th April, 2015, dismissed both the
appeals, filed by the appellant.
2. Raja Muhammad Hanif Khan, Advocate,
counsel for the appellant, submitted that the judgment of
the Service Tribunal is against law and the record. He
argued that under section 9 of the Azad Jammu &
Kashmir Civil Servants Act, 1976, every civil servant is
obliged to serve under the Government wherever he/she
is transferred inside or outside Azad Jammu & Kashmir,
provided, his/her terms and conditions of service as to
pay are not adversely affected. A civil servant can only
be transferred against a post. If any transfer order is
made wherein a civil servant is left without a post, such
order is against law and not maintainable. All the
transfer orders have to be passed in a judicious manner.
The learned counsel heavily relied upon the judgments
of this Court delivered in the cases reported as Mst.
4
Sabia Aziz vs. Director Technical Education & 5 others
[2011 SCR 545] and Mst. Nazia Tabassum vs. Mst.
Robina Latif, Senior Teacher, Government Girls High
School Sanghot, District Mirpur, Azad Kashmir and 8
others [2013 SCR 356] and submitted that this Court has
time and again laid down the rule of law that while
passing a transfer order, the Government shall record the
reasons and order shall be passed in a judicious manner.
The judicious means that “while passing an order or
taking an action all the relevant facts, laws and rules
applicable, shall be kept in mind.” He submitted that by
transfer order, the appellant is left without a post,
therefore, the order is not maintainable. The Service
Tribunal has failed to consider this aspect of the case.
The learned counsel forcefully argued that the
respondents averred in the written statement/objections
that the Ehtesab Bureau is conducting an inquiry against
the appellant and he has been transferred on the basis of
a letter addressed by the Ehtesab Bureau to the
Government. He submitted that no such letter has been
produced before the Court. In fact, it is an after thought
5
act and if there is any letter, it has been maneuvered
because no fact regarding such letter is mentioned in the
transfer order. Even otherwise, under the Azad Jammu &
Kashmir Ehtesab Bureau Act, 2001, the Ehtesab Bureau
neither can initiate an inquiry against a civil servant
without a reference by the Government, nor it has power
to direct the Government for filing of reference against a
civil servant. No reference has been filed by the
Government against the appellant, herein, in the Ehtesab
Bureau, therefore, the Ehtesab Bureau has no jurisdiction
to initiate an inquiry against the appellant. He lastly
argued that the appellant is left without a post. He was
not even made OSD. His salary is not being paid because
his transfer is not made against any post. The learned
counsel submitted that the Supreme Court of Pakistan in
the case reported as Corruption in Hajj Arrangements in
2010 in the matter of Suo Motu Case No.24 of 2010 and
Human Rights Cases, decided on 29th July, 2011, [PLD
2011 (SC) 963], has held that ordinarily, no Government
employee shall be made OSD, except under the
compelling circumstances and if a Government
6
employee is made OSD, the period shall not be more
then one month, but the appellant has been left without a
post for the last more than 6 months. He requested for
acceptance of the appeal.
3. While controverting the arguments, Mr. Sajid
Hussain Abbasi, Advocate, counsel for respondent No.4,
submitted that the appellant was removed from the post
of Secretary Communication & Works in the light of the
letter of the Ehtesab Bureau, wherein, the Ehtesab
Bureau apprised the Government that there are
complaints of corruption, corrupt practices and illegal
assets against the appellant, therefore, he be removed
from the post. On the basis of the letter of Ehtesab
Bureau addressed to the Government, the appellant was
removed from the post. The learned counsel submitted
that the appellant is not left without a post. He referred to
the certification dated 2nd March, 2015, finding place at
page No.92 of the paper book to the effect that five posts
of grade (B-20) are available in the budget of the
Services & General Administration Department. The
officers, Dr. Mehmood-ul-Hassan, Abid Gillani and Dr.
7
Liaquat are receiving the salaries against such posts
while there are still two posts available against which the
salary can be paid. The appellant has not submitted his
pay bills. The learned counsel defended the judgment of
the Service Tribunal on all counts and requested for
dismissal of the appeal.
4. On query by the Court, the counsel for the
respondent, submitted that no copy of letter of the
Ehtesab Bureau or any other document has been placed
on the record for proving the fact that the process of
transfer was initiated on the initiative of the Ehtesab
Bureau. After hearing the counsel for the parties, we
thought it appropriate to summon the record from the
Ehtesab Bureau and the process initiated for transfer of
the appellant. The Additional Advocate-General was
ordered to immediately produce the record. The record
was produced by the officers of the Prime Minister
Secretariat and Ehtesab Bureau. The copies of the
dispatch register of the Ehtesab Bureau, Prime Minister
Secretariat, the letter addressed by the Director Admin;
Ehtesab Bureau to the Secretary Prime Minister, process
8
for transfer and the order of the Prime Minister were
examined and attested copies were procured from the
Section Officer, who produced the record.
5. We have heard the learned counsel for the
parties and perused the record.
6. The civil service of the Azad Jammu &
Kashmir is governed under the Azad Jammu & Kashmir
Civil Servants Act, 1976. The preamble of the Act,
provides the appointment to, and the terms and
conditions of the persons in the service of Azad Jammu
& Kashmir employed in connection with the affairs of
the Government, and the matters connected therewith or
ancillary thereto be regulated by this law. Sections 4, 6,
7, 8 and 9 deal with the appointments, confirmation,
seniority, promotion and posting & transfer of a civil
servant. All the above referred matters fall in the terms
and conditions of a civil servant. The postings and
transfers of civil servants are governed under section 9
of the Azad Jammu & Kashmir Civil Servants Act, 1976.
Section 9 provides that every civil servant is liable to
9
serve under the Government anywhere within or outside
the Azad Jammu & Kashmir in any post under the
Government or the Council or the Federal Government
of Pakistan or any Provincial Government of Pakistan, 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 then
those to which he would have been entitled if he had not
been so required to serve. The matter of transfer of a
civil servant came under consideration of this Court in a
number of cases, whereby it was held that the transfer
orders be passed in a judicious manner.
In the case reported as Mst. Shaista Idrees vs. Mst.
Gul Shireen & 7 others [2006 SCR 294], this Court laid
down the rule of law that under section 9 of the Civil
Servants Act, 1976, every civil servant is liable to serve
anywhere in or outside Azad Kashmir in a post under the
Government of Azad Jammu & Kashmir, the Council or
Federal Government of Pakistan or any Provincial
Government of Pakistan or a local authority, corporation
or body, set up or established by any such Government.
10
The only condition imposed on this power of the
Government is that where a civil servant is required to
serve in a post outside the service or cadre, his/her terms
and conditions of service as to pay shall not be less
favourable then those he was entitled to before the order
of transfer or posting.
In the case titled Dr. Muhammad Rafique vs. Azad
Government and 3 others [2007 SCR 429], it was
observed by this Court that in fact there are only two
exceptions to be exercised under section 9 of the Civil
Servants Act, 1976; a protection has been extended to a
civil servant that his terms and conditions of service to
the extent of pay shall not be less favourable then those
he was entitled before his/her transfer if he/she is
required to service in the post outside his service or
cadre and the other exception is that powers must be
exercised fairly and impartially and colourable exercise
of authority motivated by political consideration is not
allowed.
In the case titled Deputy Inspector General of
Police and another vs. Muhammad Yaseen and another
[2008 SCR 611], it was observed by this Court that
transfer of a civil servant can be made under section 9 of
the Civil Servants Act, 1976, against a vacant post.
In the case reported as Muhammad Maroof vs.
Sardar Muhammad Tariq Khan and 3 others [2009 SCR
11
63], this Court observed that no appointment or transfer
can be made unless there is a post.
The matter of transfer and scope of word
“judicious” has elaborately been dealt with by this Court
in the case reported as Mst. Sabia Aziz vs. Director
Technical Education & 5 others [2011 SCR 545]. A
notification was issued by the Government, whereby, all
the transfer policies were cancelled and it was directed
that all transfer orders be passed in a judicious manner.
While interpreting the word “judicious” it was observed
in para 15 of the judgment as under:-
“15. The word “Judicious” ordinarily
connotes the meaning of doing an act with
wisdom and good sense. In the Black’s
Law Dictionary, it has been defined as
“well considered, discreet and wisely
circumspect”. The Chambers 20th Century
Dictionary has assigned it the meanings of
“according to sound judgment: possessing
sound judgment; discreet”, whereas in the
Webster’s New Explorer Encyclopedic
Dictionary definition of this word is
“having, exercising, or characterized by
sound judgment; discreet.”
In the Qaumi English-Urdu Dictionary
published by the )مقتدرہ قومی زبان پاکستان(
following Urdu meanings are assigned to
the word “Judicious”, adj.
12
سمجھدار، دوربین، نکتہ رس، معاملہ فہم، سوچ سمجھ'
ا، کر کام کرنے واال، مدبر، عاقل، عقلمند، دانشمند، دان
'دانشور، صاحب شعور، صاحب تمیز، مبنی بر انصاف
Judiciously, adv.
، مدبرانہ، سوچ سمجھ کر، عاقالنہ، فہیمانہ، عقل سے'
'تمیز سے، دانائی سے عقلمندی سے
Judiciousness, n.
ی، سمجھ بوجھ، فہم، ادراک، تدبر، دوربینی، نکتہ رس'
، معاملہ فہمی، تعقل، دوراندیشی، شعور، عقلمندی
دانشمندی، دانائی'
Thus the consensus of meanings assigned
to the word “judicious” by all the
dictionaries conveys and connotes passing
of an order taking an action after due
application of mind in consideration of all
the relevant facts, laws and rules wisely in
good sense in exclusion of arbitrariness,
favoritism, nepotism or any type of
influence or pressure. Broadly speaking
the exercise of powers in judicious
manner is synonymous to like a judicial
judgment, which means to do justice
between the concerned interested/affected
and the contestant parties keeping the
scale of justice balance and even without
tilting it into favour of any one of parties.”
Again in para No.23 of the judgment, it was
observed as under:-
“23. Another aspect of the matter as
argued, is whether in absence of any
prescribed policy the competent
authorities are at liberty and have got
unguided and uncontrolled powers of
posting and transfer. As we have already
discussed hereinabove that although
13
presently no prescribed transfer policy is
holding the field, however, in the
notification issued for cancellation of the
transfer policies as well as the directive of
the Prime Minister, some guideline has
been provided. Even otherwise according
to our considered opinion in absence of
any prescribed policy all the authorities
are under constitutional obligation to
exercise their powers in judicious manner
by upholding the principle of equality
before law. According to Section 3, of the
Interim Constitution Act, 1974, Islam is
the state religion of the Azad Jammu &
Kashmir, whereas under the provisions of
sub-section 5 of section 31, of the Interim
Constitution Act, there can be no law
repugnant to the teaching and the
requirement of Islam as set out in the
Holy Quran and Sunnah. Thus, in absence
of prescribed policy all the authorities are
under obligation to exercise their powers
according to the teachings of Islam. The
powers vested in the authorities are the
trust bestowed upon them by Allah
Almighty......”
It is held that the postings and transfers exclusively
fall under the discretion and domain of competent
Authority which must not be exercised in an arbitrary or
fanciful manner, but the same should be exercised
judiciously and in accordance with the settled norms of
justice, equity and fairplay.
14
The Supreme Court of Pakistan in the case titled
Zahid Akhtar vs. Government of Punjab through
Secretary, Local Government and Rural Development,
Lahore and 2 others [PLD 1995 SC 530], held that:
“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 ordinary circumstances
unless for the reasons or exigencies of
services. A transfer before expiry of said
period becomes necessary in the opinion
of the competent authority”.
It was further observed that the transfer of a civil
servant by political figures which are capricious and are
based on the considerations, not in the public interest,
are not legally sustainable.
7. In all the above referred cases this Court and
the Supreme Court of Pakistan pronounced that the
competent authority has power to pass a transfer order of
a civil servant but such transfer order be passed fairly,
justly, impartially, judiciously and shall not be passed
arbitrarily, mala-fidely, motivated by political
considerations and colourable exercise of the authority.
15
The transfer order which is politically motivated, in
colourable exercise of the authority, passed without
wisdom and good sense, is not a judicious order, such an
order is arbitrary and fanciful, which is not maintainable.
The Supreme Court of Pakistan in the case reported as
Syed Mahmood Akhtar Naqvi and others vs. Federation
of Pakistan and others [PLD 2013 SC 195], in para 16 of
the judgment observed as under:-
“……Furthermore, with regard to
transfers of civil servants, this Court has
stated that transfers by political figures
which are capricious and are based on
considerations not in the public interest
are not legally sustainable. Farrukh
Gulzar vs. Secretary Local Government
and Rural Development Department,
Lahore and 2 others (1998 SCMR 2222).
These are principles of law enunciated by
this Court and are to be followed in terms
of Article 189 of the Constitution.”
8. Rule 22 of the Azad Jammu & Kashmir Rules
of Business, 1985, (Rules of Business, 1985) deals with
the transfer of a civil servant. The rule refers to transfer
of civil servants shown in clause (1) of Schedule VIII
and sub-rules (2) and (3) of Rule 22, refer to Schedule X
for transfer against tenure posts. In Schedule VIII of the
16
Rules of Business, 1985, the competent authority for
transfer of the Secretaries is the Services and General
Administration Department with the approval of the
Prime Minister. The competent authority for transfer of
the Additional Secretaries and Deputy Secretariats is
also the Services and General Administration
Department in consultation with the Department
concerned with the approval of the Prime Minister.
Schedule X of the Rules of Business, 1985, deals with
tenure posts. The tenure for the posts of Additional
Secretaries, Deputy Secretaries and Sections officers
who are not member of the Secretariat Service, is three
years and the tenure of Heads of attached departments is
also fixed as three years.
9. The post of Secretary to the Government is
not a tenure post. No period for transfer of the
Secretaries to the Government is fixed in Rule 22 or
Schedule VIII or X of the Rules of Business, 1985. Non
fixing of period of transfer for the posts of Secretary to
the Government does not cloth the Government with a
power to transfer a Secretary to the Government
17
frequently at their whims without adhering to law. The
Supreme Court of Pakistan in the case reported as Syed
Mahmood Akhtar Naqvi and others vs. Federation of
Pakistan and others [PLD 2013 SC 195], observed as
under:-
“It is not in contention that civil servants
are public servants and are, therefore,
meant to take decisions only in
accordance with law in the public interest.
In their capacity as advisors in decision
making or as administrators and enforcers
of law, they are not subservient to the
political executive. It is their obligation to
remain compliant with the Constitution
and law. Hence they are not obliged to be
servile or unthinkingly submissive to the
political executive. One of their prime
duties is to give advice in the best public
interest and to administer the law
impartially being incharge of the
machinery of the State.”
10. Rule 8 of the Rules of Business, 1985,
postulates that the Secretary shall assist the Minister in
formulation of policy and bring the cases in notice of the
Minster which have to be submitted to the Prime
Minister, execute the sanctioned policy, be the official
head of the Department and responsible for its efficient
administration and discipline for proper conduct of
18
business, submit proposal for legislation to the cabinet,
be responsible to the Minister for the proper conduct of
business, keep the Chief Secretary informed of important
cases disposed of in the department. It is also the duty of
the Secretary that when any order of the Minister
appears to be departure from rules, regulations or the
Government policy, he shall re-submit the case to the
Minister inviting his attention to the rules, regulations or
the Government policy. It is also the duty of the
Secretary while submitting a case for the orders of the
Minister, to suggest a definite line of action. In the light
of Rules of Business, 1985, it is duty of the Secretary to
follow the policy, guide-lines and directions of the
political executive adhering to the Constitution, Law and
Rules of Business. It is his duty to act independently and
discharge his functions and not be influenced by
dictatorial misuse of powers by the executive. The
Supreme Court of Pakistan in the case reported as Syed
Mahmood Akhtar Naqvi and others vs. Federation of
Pakistan and others [PLD 2013 SC 195], in paragraphs
No.17 and 18 of the judgment observed as under:-
19
“17. In Syed Nazar Abbasi Jafri vs.
Secretary to the Government of the
Punjab and another (2006 SCMR 606),
this Court held that the duty of the public
officers is to independently discharge their
functions and not be influenced by
“dictatorial misuse of powers” at the
hands of political figures. The Court has
also emphasized that the appointment and
removal of civil servants is not to be
politically motivated. Province of Punjab
vs. Azhar Abbas (2002 SCMR 1). These
decisions highlight the concept of a civil
service which enjoys certain legal
protections and is thus capable of
performing its envisioned role as a law-
enforcing institution.”
“18. The compliance of illegal orders of
superiors is not justified on the basis of
having been issued from higher authority
as it is the law and Constitution which
must be obeyed. Here it would be relevant
to cite the judgment of this Court in
Samiullah Khan Marwat vs. Government
of Pakistan (2003 SCMR 1140) where it
was stated: “… the executive of powers by
the public functionaries in derogation to
the direction of law would amount to
disobey[ing] the command of law and
Constitution…” Furthermore, in the case
of Iqbal Hussain vs. Province of Sindh
(2008 SCMR 105) the Court held that “the
compliance of illegal and arbitrary order
is neither binding on the subordinate
forums nor valid in the eyes of law.” In
case the subordinates are directed to
implement an illegal order “they should
put on record their dissenting note”
Human Rights Cases Nos. 4668 of 2006,
1111 of 2007 and 15283-G of 2010 (PLD
20
210 SC 759). Similarly, illegal orders
cannot be defended on the plea that these
could expose the concerned government
servant to the risk of disciplinary action.
Zahid Akhtar vs. Government of Punjab
(PLD 1995 SC 530).”
11. If a Secretary to the Government refuses to
comply with the illegal orders of the executive authority,
he cannot be transferred as a punishment. How a civil
servant shall act in performance of its duties; the
proposition was considered by the Supreme Court of
Pakistan in the case reported as Zahid Akhtar vs.
Government of Punjab through Secretary, Local
Government and Rural Development Lahore and 2
others (PLD 1995 SC 530) as under:-
“…We need not stress here that a tamed
and subservient bureaucracy can neither
be helpful to Government nor it is
expected to inspire public confidence in
the administration. Good governance is
largely dependent on an upright, honest
and strong bureaucracy. Therefore, mere
submission to the will of superior is not a
commendable trait in a bureaucrat.
Elected representatives placed as incharge
of administrative departments of
Government are not expected to carry
with them a deep insight in the
complexities of administration. The duty
of a bureaucrat, therefore, is to apprise
these elected representatives the nicety of
21
administration and provide them correct
guidance in discharge of their functions in
accordance with the law. Succumbing to
each and every order or direction of such
elected functionaries without bringing to
their notice, the legal infirmities in such
orders/directions may sometimes amount
to an act of indiscretion on the part of
bureaucrats which may not be justifiable
on the plane of hierarchical discipline. It
hardly needs to be mentioned that a
Government servant is expected to
comply only those orders/directions of his
superior which are legal and within his
competence. Compliance of an illegal or
an incompetent direction/order can neither
be justified on the plea that it came from a
superior authority nor it could be
defended on the ground that its non-
compliance would have exposed the
concerned Government servant to the risk
of disciplinary action.”
12. The appellant was posted as Secretary
Communication & Works. The Secretary to the Prime
Minister prepared a summary for disciplinary action
against the appellant and submitted the same to the
Prime Minister on 26th December, 2014. The Prime
Minister ordered that “Pl. proceed as discussed.
Necessary formalities may be completed”. The summary
and order passed by the Prime Minister are reproduced
as under:-
22
“Disciplinary Action Against Mr. Ilyas Abbasi,
Secretary Works
AJK Ehtesab Bureau has initiated case
against incumbent Secretary Works. (Placed on
the file is letter received from them). They have
further requested to disengage the officer from
his present posting.
For perusal and necessary orders pl.
Worthy P.M. 26.012.2014
Pl. proceed as discussed. Necessary
formalities may be completed.”
-------------------------------------
ہے: "مفاد سرکار کے پیش نظر بذیل منظوری صادر کی جاتی
عباسی، سیکرٹری ورکس/مواصالت مسٹر الیاس ۔1
یا کے محکمہ سروسز کے ساتھ منسلک ککوتبدیل کر
ہے۔ جاتا
سیکرٹری ورکس/مواصالت کا چارج تا حکم ثانی ۔ 2
راعظم عباسی، سیکرٹری برائے وزیمسٹر فیاض علی
تفویض کیا جاتا ہے۔ کو
احکام جاری ہوں۔ابقا مط
"وزیراعظم
On the same date, i.e. 26th December, 2014, the
Secretary Services and General Administration
Department put a note below the order of the Prime
Minister to the following effect:-
“Discussed with the Chief Secretary on
phone who is away to Lahore on official
tour. He has agreed that the above order
be issued immediately please.”
23
We have also perused the letter addressed to the
Secretary to Prime Minister by the Director Admin;
Ehtesab Bureau on the basis of which the summary for
disciplinary proceedings was prepared and presented to
the Prime Minster. In the said letter, the Ehtesab Bureau
apprised the Government that there are complaints of
corruption, corrupt practices and illegal assets against the
appellant. He be removed from the post.
13. The Ehtesab Bureau is the creation of the
Azad Jammu & Kashmir Ehtesab Bureau Act, 2001.
Under section 21 of the Ehtesab Bureau Act, 2001, the
Court shall not take cognizance of any offence under
this Act except on a reference made by the Chairman or
an officer of the Ehtesab Bureau duly authorized by him.
Under sub-section (2) of section 21, a reference shall be
initiated by the Ehtesab Bureau on a reference received
from the Government; or receipt of a complaint against a
person. The letter addressed by the Director Admin.,
Ehtesab Bureau speaks that the complaints are being
made against the Secretary Works, Muhammad Ilyas
Abbasi. The Ehtesab Bureau has not intimated the
24
Government that any inquiry in the Ehtesab Bureau on
the basis of complaints is under process and during the
inquiry the record has been summoned from the
Secretary or any other person from the Communication
& Works Department and due to the posting of
Muhammad Ilays Abbasi as Secretary Works, the
relevant record has not been produced by the
Department, therefore, it is necessary to remove the
Secretary from the post, rather the Ehtesab Bureau has
directed the Secretary to Prime Minister that a reference
be sent to the Ehtesab Bureau for inquiry against the
appellant. No such application or complaint has been
brought on the record which was received by the Ehtesab
Bureau and Ehtesab Bureau has initiated inquiry against
the Secretary Works. There is only a direction by the
Director Admin., Ehtesb Bureau to the Secretary to
Prime Minister that a reference be filed against the
Secretary Works. The Ehtesab Bureau has no such
power or jurisdiction to direct the Secretary to the Prime
Minister that Government shall sent a reference to the
Ehtesab Bureau for inquiry against a civil servant. The
25
Ehtesab Bureau can inquire into the matter if a reference
is sent by the Government or an application is received.
A perusal of the proceedings initiated on 26th December,
2014, reveals that the proceedings are not transparent.
The letter from the Director Admin., Ehtesab Bureau
addressed to the Secretary to the Prime Minister on 26th
December, 2014, was sent to the Secretary Prime
Minster through fax from Muzaffarabad to Islamabad.
The Secretary to the Prime Minster initiated the
summary for disciplinary action on the same date. It is
worth mentioning to note that the Prime Minister
ordered that “Pl. proceed as discussed, necessary
formalities may be completed” which indicates that
before initiation of the process, the matter had already
been discussed with the Prime Minister by the Secretary
to the Prime Minister. The proceedings have been
initiated by the Secretary to Prime Minister instead of
Services and General Administration Department.
Schedule VIII of the Rules of Business, 1985, provides
that the competent authority for transfer of the Secretary,
is the Services and General Administration Department
26
with the approval of the Prime Minister. The summary
was initiated by the Secretary to Prime Minister and not
the Services and General Administration Department,
which is a clear violation of the mandatory provisions of
the Rules of Business, 1985. In the case titled Zareena
Kousar vs. Divisional Director Schools and others
[2014 SCR 878] this Court observed as under:-
“…..The transfer/posting of an employee
is sole prerogative of the Government,
however the power enjoyed by the
Government are required to be exercised
within the parameters of law…”
The Prime Minister passed the order on 26th
December, 2014 and file was ordered to be sent to the
Chief Secretary and thereafter, the Secretary Services
and General Administration on the same date i.e. 26th
December, 2014, put a note that the matter has been
discussed with the Chief Secretary on phone who is
away to Lahore and thereafter the notification was issued
on the same date. It is also worth mentioning to note that
after removal of the appellant from the post, the charge
of the post was assigned to Mr. Fayyaz Ali Abbasi,
27
Secretary to the Prime Minister, who initiated the
process for disciplinary action and removal of the
appellant from the post.
14. As discussed hereinabove that under section 9
of the Civil Servants Act, 1976, a civil servant can be
transferred anywhere inside or outside Azad Jammu &
Kashmir against a post. In a number of cases, this Court
has already laid down the rule of law that a civil servant
cannot be left without a post. The contention of the
counsel for the respondent that there are five posts of
officer on special duty (OSD). Three posts are occupied
by different officers on OSDs and two posts are still
available. The appellant may receive the salary against
one of the said posts. Firstly; the appellant was not made
OSD. He was only attached with the Services and
General Administration Department as is clear from the
objection raised by the Accountant General on the bill of
the salary submitted by the appellant that “salary cannot
be paid because the appellant is not posted against any
post.” It is crystal clear that the appellant is left without a
post. The other contention of the counsel for the
28
respondent that the appellant may receive salary against
the posts reserved for OSDs. An amendment was
introduced in section 9 of the Azad Jammu & Kashmir
Civil Servants Act, 1976, that a civil servant may be
posted as officer on special duty (OSD) whenever
required as such. Ordinarily, no Government servant
shall be posted as OSD except under the compelling
circumstances. The Supreme Court of Pakistan in the
case titled Corruption in Hajj Arrangements in 2010 in
the matter of Suo Motu Case No.24 of 2010 and Human
Rights Cases, decided on 29th July, 2011, [PLD 2011
(SC) 963], has observed as under:-
“19. This Court is of the view that if a
civil servant like Mr. Sohail Ahmed, who
had stood for supremacy of the
Constitution and Rules of Law has obeyed
the judicial order, he could not have been
penalized by making him O.S.D. It is well
settled that placing an officer as OSD is
tantamount to penalizing him because the
expression ‘OSD’ is not known to either
the Civil Servants Act, 1973 or the Civil
Servants (Appointments, Promotion and
Transfer) Rules, 1973.”
Similarly, the Supreme Court of Pakistan in
another case reported as Sajjad Ahmed Javed Bhatti vs.
29
The Federation of Pakistan through Secretary
Establishment Division, Islamabad and others [2009
PLC (C.S.) 953] in para 7 of the judgment observed as
under:-
“7. However, at times, civil servants are
also made O.S.D. or kept without any
posting, in case they have becomes
persona non grata. Therefore, the posting
of such officers as O.S.D. for considerably
long period is deprecated by the Courts.
See the case of Lt. Col. (R) Abdul Wajid
Malik (supra). It may be unfair and unjust
to keep a government servant on
tenterhooks without getting any work
from him. The right to work is a valuable
right of a person as visualized by Article 3
of the Constitution of Islamic Republic of
Pakistan, a provision meant to ensure
social and economic justice to the people
of Pakistan.”
15. A civil servant may remain posted as OSD
for a period of not more than 30 days. The appellant was
removed from the post on 26th December, 2014. He was
not made OSD and if for the sake of argument, it is
assumed that he was made as OSD, then too a period of
more than six months, has elapsed. He has not been
posted against a post. Keeping a civil servant out of the
30
post for such a long period, is arbitrary and colourable
exercise of powers by the authority.
In the matter of OSD, the Quetta High Court in the
case reported as Mir Shah Nawaz Marri, Ex-Director,
Mineral Development presently O.S.D. S&GAD, Quetta
vs. Government of Balochistan through Chief Secretary,
Balochistan Civil Secretariat Quetta and 4 others [2010
PLC (C.S.) 533] opined as under:-
“(1) it would be appropriate and in the
interest of general public if in future
Government will make efforts not to
place an officer as O.S.D., beyond
reasonable period of more than 30
days;
(2) If his services are not utilized in the
department in which originally he
was appointed then he should be
given other suitable post which may
be commensurate with his
qualification and status;
(3) If the Government Officer is found
to be inefficient or corrupt or is
started to be indulging in
misconduct then instead of allowing
him to continue as O.S.D. as
punishment, he should be dealt with
departmentally under the Efficiency
and Disciplinary Rules; otherwise in
absence of any such allegation the
Government should not refuse to
31
utilize his services for any other
extraneous considerations.”
It is a well reasoned opinion, we endorse the same.
The appellant has been left without a post for more than
six months. Thus, the order dated 26th December, 2014 is
against law and not sustainable.
16. We have also considered the argument of the
counsel for the respondent that through order dated 5th
January, 2015, a new Secretary Communication &
Works has been appointed and due to his appointment as
Secretary Communication & Works, certain other
officers have also been posted against different posts,
who have not been arrayed as party in the line of the
respondents, therefore, no order can be passed against
them in their absence. The contention of the counsel for
the respondent carries no weight because we have come
to the conclusion that the order dated 26th December,
2014 is bad in law and not sustainable and set aside the
same. The subsequent order in relation to the posting of
Secretary Communication & Works and appointment of
the persons against other posts are not relevant. The
32
administration is at liberty to pass suitable orders against
the said posts.
The result of the above discussion is that we
accept the appeal. The judgment of the Service Tribunal
to the extent of appeal against the order dated 26th
December, 2014 is set aside. Appeal No.1167 of 2014, in
the Service Tribunal is accepted and the order dated 26th
December, 2014 is set aside. Resultantly, appeal No.25
of 2015, against the order dated 05.01.2015, has become
infructuous. There will be no order as to costs.
CHIEF JUSTICE JUDGE
Muzaffarabad.
.08.2015