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Appeal No.102(R) of 1987, decided on 31st May, 1987.

‑‑‑S.4‑‑Premature appeal becoming mature when came up for hearing‑ Effect‑‑Appeal filed prematurely by civil servant for suspension of his transfer order which otherwise could have been executed had he waited for ninety days statutory period, after filing of departmental appeal‑‑Appeal filed prematurely for obtaining temporary suspension of transfer order, when came up for hearing had become mature, held, could be disposed of on merits.

‑‑‑S.4‑‑Appeal, competency of‑‑Transfer order of civil servant passed by competent authority‑‑Representation against such order filed before same authority, held, would be no representation in the eye of law‑ Proper forum for entertainment of representation would be the next higher authority‑‑Representation filed by civil servant to authority which has passed the transfer order was no departmental representation competently made‑‑Appeal filed without competent departmental representation would be incompetent and liable to dismissal.

S.Ali Raza Shah Naqvi v. Government of Sind P L D 1979 S C 856 rel.

‑‑‑S.10‑‑Liability of civil servant to serve anywhere within or outside the country‑‑No consent of civil servant required for his transfer‑ Rules providing for consent of civil servant in respect of his transfer invalid‑‑Every civil servant, held, would be liable to serve anywhere within or outside the country in any post under Federal Government or Provincial Government, Local authority or a Corporation or a body set up or established by Federal Government‑‑Any Rules providing otherwise being contrary to S.10 of Civil Servants Act, 1973 would be deemed to have been repealed‑‑Transfer of Civil Servant from one department to another, would be valid.

Sardar Muhammad Ghazi for Appellant.

Muhammad Amir Akbar Khan for the State.

Date of hearing: 31st May, 1987.

‑‑The appellant, who was an overseer, Grade I in the MES and was serving in DW & CE (Army), was transferred to FWO by order dated 28‑12‑1986, which was, allegedly, received by him on 27‑1‑1987. The appellant challenged the order by filing a departmental appeal on 13‑2‑1987, but before it could be disposed of, he filed the present appeal before us on 8‑3‑1987, challenging the order of transfer and also sought a temporary injunction for suspending the same. The order was suspended and the appeal was fixed on priority basis.

2. The learned counsel for the State has contended that the departmental appeal having been filed on 13‑2‑1987, the present appeal filed on 8‑3‑1987 before the expiry of 90 days waiting period, was premature and is liable to be dismissed on this ground alone. No doubt, the appeal when filed was premature, but it was so filed because the appellant was challenging the order of transfer which could have been executed before the expiry of 90 days. Had he waited for 90 days, the very purpose of appeal would have failed. The appeal was filed prematurely for obtaining temporary suspension of the impugned order and when it came up for hearing the period of 90 days had expired and the appeal has become mature and cant be disposed of on merit.

3. The second preliminary objection taken by the learned counsel for the State is that the departmental appeal was incompetent as it was addressed to E‑in‑C himself who passed the order of transfer and not to the next higher authority, and as such it was not competent. In this respect, reliance has been placed on the case of S.Ali Raza Shah Naqvi v. Government of Sind P L D 1979 S C 856. In this case, the impugned order was passed by the Secretary Education. Departmental appeal could be entertained by the Chief Secretary. The aggrieved civil servant, however, made the representation to the Education Secretary himself who passed the impugned order. The Supreme Court opined that such an appeal was no appeal in the eye of law, and that the proper course was to file the appeal to the next higher authority, namely the Chief Secretary. In the present case also, as already observed, the appellant had filed representation to the E‑in‑C against his own order, whereas the proper forum for entertainment of the representation was the Secretary Defence. There was thus no departmental representation competently made and the present appeal is thus incompetent by virtue of subsection (a) to section 4(1) of the Service Tribunals Act, 1973.

4. Though the appeal could be disposed of on the preliminary point only, yet we propose to decide it on merit also.

5. The learned counsel for the appellant has challenged the order of transfer on two grounds. The first is that the consent of the appellant had not been taken and the second is that he having already served in FWO could not be posted again unless a second transfer was necessitated by exhausting the rotation,

6. As regards the first ground, reliance has only been placed on an opinion of the Establishment Division in some other case which advised that MES Officers could not be transferred from MES to FWO, without their consent, We have not been able to find any such rule or law placing clog on the jurisdiction of the competent authority in making the transfer without the consent of the affected person. On the other hand, section 10 of the Civil Servants Act, 1973 lays down in unambiguous terms that every civil servant shall be liable to serve anywhere within or outside Pakistan in any post under the Federal Government or Provincial Government or a. local authority or a corporation or a body set up or established by the Federal Government Even if there was any rule on which the Establishment Division had based their advice, that rule being inconsistent with section 10 ibid shall be deemed to have been repealed. We are, therefore, firmly of the view that the appellant could be transferred to FWO without his consent.

7. As regards the second objection, the learned counsel for the appellant has relied on some instructions wherein it is provided that employees of the MES could not be transferred to hard area once he has served there unless it becomes inevitable due to rotation. In the first instance, there is nothing to show that the appellant has been transferred to hard area as defined in the body of the instructions. Even if he is transferred, the instructions would have no effect because of section 10 of the Act which we have already discussed and which leaves no room for placing any clog on the transfer of a civil servant from one place to another or from one department to another department.

8. For the reasons stated above, we find no substance in this appeal and dismiss the same, with no order as to costs. The interim order passed by us on 26‑5‑1987 is also vacated. Parties to be informed accordingly.

A.A./379/Sr.F.

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