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