LAHORE: The Lahore High Court has ruled that the law does not allow the chief minister to pla­ce a complete ban on the transfer/posting of government officials.

“Chief Minister can exercise powers and perform functions within the limitations defined and contours prescribed through legislative fiat,” Justice Asim Hafeez holds in a judgement, setting aside a March 1, 2024 notification approved by Punjab Chief Minister Maryam Nawaz.

Malik Imtiaz Ahmad and some other officials of different departments had filed petitions challenging the notification, under which the chief minister had imposed a complete ban on all kinds of transfers/postings with immediate effect.

Opposing the petitions, a provincial law officer argued that in terms of the constitutional mandate the executive authority of the province vests in the chief minister, who is otherwise empowered to extend approval to appointments, postings, promotions and transfers in terms of Rule 23 of the Punjab Government Rules of Business, 2011. He also sought protection of section 9 of the Civil Servants Act, 1974.

Court sets aside March 1 notification, approved by Punjab chief minister

However, Justice Hafeez, in his order, observed that Rule 23 is not attracted in the matter at hand and even though the rule does not authorise the chief minister to place a complete ban on postings/transfers.

The judge also rejected the reference to section 9 of the Civil Servants Act, 1974, made by the government’s lawyer as being misplaced, saying the same does not permit issuance of such notification, placing the ban comprehensively.

The judge observed that the notification apparently further creates an exception and permits transfers/postings, subject to special circumstances, and approval of the chief minister.

The judge noted that the executive authority vested in the government or chief minister is circumscribed by the law, to the extent legislated by the legislature.

“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 judge added.

He said that the executive, by no stretch of imagination, could assume the role of the legisla­tu­re(s), and proceed to legislate in garb of exercise of executive authority.

He said if the legislature inten­­ds to extend powers to the chief minister to centralise and regulate postings and transfers of civil servants operating in the province, same may legislate and make requisite amends in relevant laws.

Commenting on the impugned notification, Justice Hafeez termed it an overreach by the executive tantamount to an obvious encroachment and otherwise disturbs administrative equilibrium of checks and balances.

“Notification appears to be a remnant of colonial legacy,” he said, mentioning that nothing was placed on record to demonstrate that legal opinion was solicited from the principal law officer of the province before issuing the impugned notification.

Justice Hafeez also rejected another argument of the government’s lawyer on the jurisdiction of the court to hear the matter after the 26th amendment, which envisages placing of such cases before the constitutional benches.

The judge noted that the mechanism for activating newly ins­e­rted changes in the Consti­tution, which deals with the constitutional benches in the high courts, has not been adopted so far.

The mechanism requires a resolution passed by a majority of the total membership of the respective provincial assembly to give effect to the provision of article 202A.

“Even otherwise instant petition is entertained and decided in exercise of powers under sub-clause (ii) of clause (a) of Article 199 of Constitution of Pakistan, 1973, to declare an act, undertaken without the authority of law,” the judge observed in the judgement.

The judge set aside the impugned notification for being without lawful authority.

However, the judge ordered that to avoid administrative disruption, the transfer orders made or cancelled, purportedly under the dictates of the impugned notification shall continue to hold field, unless affirmed, endorsed or cancelled by the competent authorities.

The judge said the petitioners are at liberty to raise individual grievances with the authorities competent to consider grievances relating to transfers/postings.

Published in Dawn, November 2nd, 2024