Full Judgment Text & Judicial Ruling

1998 P L C (C

1998 P L C (C. S.) 919

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui and Muhammad Bashir Jehangiri, JJ

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Interior and 4 others

versus

GUL MUHAMMAD KAKAR, INSPECTOR, F.I.A., C.B.C., QUETTA

Civil Petition for Leave to Appeal No. 425 of 1995, decided on 6th December, 1995.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 28th May, 1995, passed in Appeal No. 396-Q/1994).

Civil Servants Act (LXXI of 1973)---

----S. 10---Fundamental Rules, R. 110---Constitution of Pakistan (1973), Art. 212(3)---Civil servant, while serving petitioner (agency), was transferred on deputation to another agency for period of three years ---Civil servant on receipt of transfer order, instead of reporting for duty in his new assignment, assailed his transfer order before Service Tribunal by way of appeal---Service Tribunal, while conceding that under S. 10, Civil Servants Act, 1973, civil servant was liable to transfer anywhere, found that case of civil servant was distinguishable from ordinary cases of transfer as his transfer from parent Department to another Department tantamount to foreign service---Transfer order of civil servant was set aside by Service Tribunal with direction to petitioner to take civil servant on duty immediately with all consequential benefits---Leave to appeal was granted to consider, inter alia, whether civil servant's transfer on deputation from his parent department to another department was tantamount to foreign service and as such same was violative of Fundamental Rule 110.

Raja Muhammad Bashir, Deputy Attorney-General with Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 6th December, 1995

ORDER

MUHAMMAD BASHIR JEHANGIRI J.---This petition for special leave to appeal is directed against the judgment of the Federal Service Tribunal, Islamabad, dated 28-5-1995 whereby the respondent's appeal to challenge his transfer on deputation from F.I.A. Quetta to Anti-Narcotics Task Force Unit, Quetta (A.N.T.F.) was accepted, the impugned transfer order was set aside and the petitioner-Agency was directed "to take the respondent on duty immediately with all consequential benefits".

2. The background of the case is that the respondent while serving the petitioner-Agency as Inspector was transferred on deputation to A.N.T.F. for a period of three years vide order dated 4-5-1994. He was accordingly relieved from the office of petitioner No.6 on 8-5-1994. Instead of reporting for duty in A.N.T.F. at Quetta he assailed his transfer order before the Tribunal by way of an appeal. The main grievance of the respondent was that impugned order of his transfer on deputation had been issued without his consent inasmuch as obtaining of option, before the issuance of order of deputation, was a sine qua non. As the Agency had stopped his salary after he was relieved he had also sought a direction to the petitioners to pay his arrears of salary during the entire period. The respondent also claimed his due promotion in the Agency

3. The petitioners in their comments before the Tribunal maintained that on their request the respondent and few other officers of the agency were transferred with the approval of the Secretary, Interior Division, Islamabad, to A.N T. F. on deputation for a period of three years.

4. The Tribunal; while conceding that under section 10 of the Civil Servants Act, 1973, a Civil servant is liable to transfer any where, held that the case of the respondent was distinguishable from the ordinary cases of transfer. In reaching this conclusion it was observed: (i) that A.N.T.F, having been 'created distinctly' had nothing to do with the F.I.R., wherefore the respondent was specifically recruited; (ii) that respondent's juniors had been promoted by the Agency, nonetheless, he was deputed to A.N.T.F, without promoting him and; (iii) that before deputing to A.N.T.F. the respondent's option ought to have been obtained as required under F.R. 110.

5. Raja Muhammad Bashir, learned Deputy Attorney-General appearing on behalf of the petitioners contended that the Tribunal had erred to hold that F.R. 110 provides that no civil servant can be transferred to foreign service without his consent. In this context, it was submitted that the respondent was not transferred to foreign service, therefore, invocation of F.R.110 in the case by the Tribunal was legally unsound. The learned Deputy Attorney-General urged that under section 10 of the Civil Servants Act, 1973, every civil servant under the Federal Government is liable to serve anywhere within or outside Pakistan, on any post under the Federal Government, or any Provincial Government or local authority or a corporation or body set up by any such Government. ?

6. Leave is granted to consider, inter alia, whether the respondent's transfer on deputation from F.I.A. to A.N.T.F. was tantamount to foreign service and as such it was violative of F.R.110?

A.A./I-17/S ???????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.

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