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Petitioner: MUHAMMAD ILYAS ABBASI VS Respondent: AZAD JAMMU AND KASHMIR GOVERNMENT
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Mohammad Azam Khan Title: MUHAMMAD ILYAS ABBASI vs AZAD JAMMU AND KASHMIR GOVERNMENT Case No.:Civil Appeal No.142 of 2015 Suo Motu Case No.24 of 2010 Suo Motu Case
JUDGMENT
Reported As: PLJ 2016 Sc (AJ&K) 184, 2016 PLC (C.S.) 221 Result: Appeal allowed Judgment JUDGMENT ' MOHAMMAD AZAM KHAN, C.J.--- The appellant was posted as Secretary Communication and Works, Azad Government of the State of Jammu and 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 tendency of appeal another order was passed on 2nd January, 2015, through which one, Mr. Muhammad Zahid Khan was appointed by transfer as Secretary Communication and 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 and 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 and 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. Sabia Aziz v. Director Technical Education and 5 others [2011 SCR 545] and Mst. Nazia Tabassum v. Mst. Robina Lauf, Senior Teacher, Government Girls High
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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 term "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 act and if there is any letter, it has been manoeuvered because no fact regarding such letter is mentioned in the transfer order. Even otherwise, under the Azad Jammu and 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 employee is made OSD, such 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 and 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 and General Administration Department. The officers, Dr. Mehmood-ul-Hassan, Abid Gillani and Dr. 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 to Prime Minister, process for transfer and the order of the Prime Minister were examined and attested copies were procured from the Section Officer, who produced the record.
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5. We have heard the learned counsel for the parties and perused the record. 6. The Civil service of the Azad Jammu and Kashmir is governed under The Azad Jammu and 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 and 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 and transfer of a civil servant. All the above referred matters fall in the terms and conditions of service of a civil servant. The postings and transfers of civil servants are governed under section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976. Section 9 provides that every civil servant is liable to serve under the Government anywhere within or outside the Azad Jammu and 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 favorable than 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 v. Mst. Gul Shireen and 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 and 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. 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 favorable than those he was entitled to before the order of transfer or posting. ' In the case titled Dr. Muhammad Rafique V. 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 favorable than those he was entitled to before his/her transfer if he/she is required to serve 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 v. 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 v. Sardar Muhammad Tariq Khan and 3 others [2009 SCR 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 v. Director Technical Education and 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
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Encyclopedic Dictionary definition of this word is "having exercising, or characterized by sound judgment; discreet." ' In the Qaumi English-Urdu Dictionary published by the (. .) following Urdu meanings are assigned to the word "Judicious", ad. Judiciously, adv. Judiciousness, n. {{URDU TEXT}} ' 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.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 herein above that although 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 and Kashmir, whereas under the provisions of subsection (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 should not be A 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. ' The Supreme Court of Pakistan in the case titled Zahid Akhtar V. 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, maladroitly, motivated by political considerations and conquerable exercise of the authority. The transfer order which is politically motivated, in conquerable exercise of the authority, passed without wisdom and
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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 v. 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 v. 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 and 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 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 Secretaries 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 an not member of the Secretaries Service, is three years and tenure of Heats 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 clothe the Government with a power to transfer a Secretary to the Secretary to the Government frequently at their whims without adhering to law. The Supreme Court of Pakistan in the case reported as Syed Mahmood Akhtar Naqvi and others v. 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 in charge 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 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, guidelines 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
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Naqvi and others v. Federation of Pakistan and others [PLD 2013 SC 195], in paragraphs Nos.17 and 18 of the judgment observed as under:- "17 In Syed Nazar Abbasi Jafri v. 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 v. 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 v. Government of Pakistan (2003 SCMR 1140) where it was stated: "... Exercise 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 v. 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 2010 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 v. 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 v. 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 in charge 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 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 9f 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 and 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 "P1. Proceed as discussed. Necessary formalities may be completed". The summary and order passed by the Prime Minister are reproduced as under:-
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"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 PI. Proceed as discussed. Necessary formalities may be completed." {{URDU TEXT}} ' 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." ' 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 Minister. 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 and Kashmir Ehtesab…
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