The court declaring an impugned notification as illegal and without lawful authority, held that endorsing powers unto the Chief Minister to impose ban on all kind of transfers and postings is an act of arbitrary and nothing but sheer abuse of executive authority.
The court passed this order on number of petitions of a government employee Malik Imtiaz Ahmed of Irrigation Departmentm Saeed Ahmed of Police department and others. Malik Masroor Ahmed Awan Assistant advocate General and Suprintending Engineer Irrigation Hafiz Abdul Rehman and Hasnain Abbas from Police deptt assisted the court
The court allowed the petitions only to the extent of holding/declaring the notification without lawful authority and of no legal effect.
To avoid administrative disruption or disorder, the court said any and all transfer orders made or cancelled, purportedly under the dictates of the notification shall continue to hold the field, unless affirmed, endorsed, or cancelled by the authorities competent to make transfers/postings.
The court said the petitioners are at liberty to raise individual grievances with the authorities competent to consider grievances relating to transfer/ postings.
The court observed that if the legislature intends to extend powers to the Chief Minister to centralize and regulate postings and transfers of civil servants operating in the province, the same may legislate and make requisite amends in relevant laws. The court said the executive by no stretch of the imagination, could assume the role of the legislatures, and proceed to legislate in the garb of exercise executive authority.
Petitioners lawyers Syed Anis Mehdi, Syed Qanbar Naqvi, Haji Muhammad Tariq Aziz Khokhar challenged this notification describing it without any lawful authority and repugnant to basic human rights
The court said such an overreach by the executive authority is tantamount to an obvious encroachment and otherwise disturbs the administrative equilibrium of checks and balances.
The court observed that the executive, by no stretch of the imagination, could assume the role of the legislatures, and proceed to legislate in the garb of exercise of executive authority.
The notification in question appears to be a remnant of colonial legacy, the court held.
The court said no law/ judicial precedent was cited that supports or endorses the action of imposition of a complete ban on all kinds of transfers/postings, unto the Chief Minister.
The court said nothing was placed on record to demonstrate that legal opinion was solicited from the principal law officer of the province, before introducing the notification without the support of law has no authority or legal effect.
Text of the notification manifests centralization of powers/control and aggrandizement of authority, at the expense of subduing, effectively controlling, and conspicuously undermining the independence and working of the civil servants/bureaucracy including the police department while acting under the effect of notification, the court added.
There is no cavil that postings and transfers are governed and regulated in terms of section 9 of the Civil Servants Act 1974 and rules framed thereunder, and according to the policy of the Government, unless aligned with the permissible limits, prescribed by law the court concluded.
