(W.P. No.14268/2024) - (2024 LHC 4669)

(W.P. No.14268/2024) – (2024 LHC 4669)
Executive authority so vested in the Government or Chief Minister is circumscribed by the law, to the extent legislated by the legislature. Chief Minister can exercise powers and perform functions within the limitations defined and contours prescribed through legislative fiat. 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. 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. 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, same may legislate and make requisite amends in relevant laws. No law / judicial precedent is cited that supports or endorses action of imposition of complete ban on all kinds of transfers / postings, which act of arbitrarily encompassing all power unto the Chief Minister is nothing but sheer abuse of executive authority. Text of the Notification manifest 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 Police department – in connected constitutional petition Sub-Inspector was transferred while acting under the effect of Notification. Such an overreach by the executive authority tantamount to an obvious encroachment and otherwise disturbs administrative equilibrium of checks and balances. Notification, appears to be a remnant of colonial legacy. Nothing is placed on record to demonstrate that legal opinion was solicited from the principal law officer of the province, before introducing the Notification of 01.03.2024. Notification without the support of law has no authority or legal effect. In view of the above, these constitutional petitions are allowed only to the extent of holding / declaring the Notification dated 01.03.2024 without lawful authority and of no legal effect. To avoid administrative disruption or disorder, any and all transfer orders made or cancelled, purportedly under the dictates of the Notification shall continue to hold field, unless affirmed, endorsed or cancelled by the authorities competent to make transfer /postings. And petitioners are at liberty to raise individual grievances with the authorities competent to consider grievances relating to transfer/postings.