1999 S C M R 2482

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Munir A. Sheikh, JJ
EHSAN ELAHI CHEEMA---Petitioner
versus
SECRETARY HEALTH and 2 others---Respondents
Civil Petition for Leave to Appeal No. 1697; L of 1998, decided on
22nd January, 1999.
(On appeal from the order, dated 17-9-1998 of the Punjab Service
Tribunal, Lahore passed in Appeal No.3521 of 1997).
Constitution of Pakistan (1973)---
----Art. 212(3)---Transfer of civil servant---Civil servant who
remained posted for more than eight years much above normal
tenure of posting of three years at station of his working, was
transferred to another place of working for administrative reasons---
Civil servant whose appeal against said transfer order was dismissed
by Service Tribunal, had failed to prove any mala fides of Authority
in transferring him to another place of working---Validity---Posting
and transfer being prerogative of employer, no vested right was
created in favour of civil servant to claim that he should be posted at
one station unless any rule had created any right in him to remain
posted at one station or had debarred administration from
transferring him on same suffered from mala fides---Order of
transfer of civil servant made for administrative reasons, could not
be said to have suffered from mala fides particularly when he had
already remained posted for more than eight years much above the
normal tenure of posting of three years at a station under the rules---
Petition for leave to appeal merited dismissal as no question of law
of public importance was involved in case of petitioner, whereas it
was a case of individual grievance.
Hafiz Tariq Nasim, Advocate Supreme Court and Muhammad
Aslam Chadhry, Advocate-on-Record for Petitioners.
Ashtar Ausaf Ali Khan, Advocate-General, Punjab, for Respondents.
Date of hearing: 22nd January, 1999.
JUDGMENT
MUNIR A. SHEIKH, J.---This petition for leave to appeal is
directed against the order dated 17-9-1998 of the Punjab Service
Tribunal, Lahore through which the appeal filed by the petitioner
against his transfer order dated 19-9-1997 has been dismissed.
2. The petitioner who was working as Pharmacist was transferred by
the Secretary, Health, Government of the Punjab, to District
Headquarter Hospital, Jhelum for administrative reasons. He
challenged the said order through appeal before the Punjab Service
Tribunal which has been dismissed through the impugned order,
dated 17-9-1998, against which leave to appeal has been sought.
3. Learned counsel for the petitioner submitted that the order of
transfer dated 19-9-1997 suffered from mala fides inasmuch as the
petitioner was victimized on account of his efforts through different
applications to unearth the irregularities in the department.
Comments were called for from the Secretary Health by the Service
Tribunal which were submitted and these allegations were denied.
Learned Advocate-General who has appeared today in response to
call by the Court as to whether the petitioner being an invalid person
could be accommodated against any one of the two posts available
in the same Hospital, submitted that the petitioner has already over-
stayed in the present Hospital for about eight years whereas the
normal tenure of posting at one station according to the rules is three
years. As to his allegations about irregularities, inquiries and
investigations were thoroughly made and they were found to be
false. He says that he has instructions from the department that it is
in the interest of the petitioner himself and also the administration
that he should not be allowed to continue at the present place of
posting.
4. Learned counsel for the petitioner maintained that in order to
demonstrate that the order of transfer of the petitioner suffered from
mala fides, he had appended with the appeal before the Service
Tribunal a number of documents which had not been considered as
is evident from the absence of any reference to them in the
impugned order. He placed reliance on the judgment reported as
Saeed Ibne Ali Tirmizi v. Pakistan Water and Power Development
Authority and another (1996 SCMR 297) in which an order of the
Service Tribunal passed in appeal filed by a civil servant challenging
the order of his dismissal from service by the departmental authority
on the ground of mala fides was set aside on the ground that the
Service Tribunal did not take into consideration the material place
on the record of the appeal in order to prove and establish mala
fides.
5. We are afraid if the principle laid down in the said judgment is
applicable in this case. Firstly, it is a case of mere transfer of a civil
servant. Posting and transfer is the prerogative of the employer,
therefore, no vested right is created in favour of a civil servant to
claim that he should be posted at one station unless any rule creates
any right in him to remain posted at one station or debars the
administration from transferring him or the same suffers from mala
fides. In this case, the allegations made by the petitioner in respect of
the alleged irregularities were found to be false, therefore, it could
not be urged f'` that the order of transfer made for administrative
reasons could be said to have suffered from mala fides particularly
when the petitioner had already remained posted for more than eight
years much above the normal tenure of posting of three years at a
station under the rules. Besides, no question of law of public
importance is involved in this case whereas it is a case of individuals
grievance.
6. For the foregoing reasons, this petition has no merits which is
accordingly dismissed and leave to appeal refused.
H.B.T./E-11/S Petition
dismissed.