PROVINCIAL GOVERNMENT through Chief Secretary N.A. Gilgit Versus KEHKASHAN BEGUM

SYED JAFFAR SHAH, J.--- The present petition has been directed against judgment dated 17-10-2008 passed by Single Judge of Northern Areas Chief Court Gilgit in C.S.A. No. 5/2007 whereby the learned Judge of Northern Areas Chief Court while setting aside the concurrent findings of two courts below has granted injunction application of the respondent and she has been allowed to perform her duties at Gilgit till the disposal of suit.

1. The brief facts leading to the present petition are that the petitioner is a lady teacher in the Northern Areas Education Department having been appointed against vacant post of Government Girls Middle School Demote Sai Tehsil Gilgit. However she managed to have a permission to perform her duties at Gilgit City but later on the education department directed her to report at Girls Middle School Demote and perform her duties over there, feeling aggrieved with the orders of department she filed a suit in the court of Civil Judge 1st Class Gilgit during pendency of her suit she also field an application under Order XXXIX, rules 1 and 2, C.P.C. for grant of injunction restraining the department from transferring her duties from Gilgit to Sai Demote, the said application and suit was resisted by the petitioners/appellants through their written statement and replication.

2. The trial Court while deciding the fate of application under Order XXXIX, rules 1 and 2, C.P.C. also dismissed the suit vide order dated 23-10-2007. Appeal filed by the respondents/plaintiffs met with the same fate. However in second, she was allowed to perform her duties at Gilgit.

3. We have heard the learned counsel for the parties and perused the record, the Advocate-General while representing the petitioners/ defendants vehemently argued that posting and transfer is the prerogative of the authorities of concerned department and no one can claim it as a right, the government servant is bound to serve any where he is posted. He further clarified that the plaintiff/respondent was appointed against the vacant post of lady teacher of Middle School Damote from where she is drawing her salary. She has been directed to perform her duties at her original place of duty on the persistent demand of concerned public and as per policy of department and it cannot be termed as a transfer order moreover no injustice has been done with her as her husband is resident of same village. The counsel appearing on behalf of the respondent mainly contended that according to instruction of Establishment Division the respondent is supposed to be transferred to a place. of residence of her spouse, as such she is entitled to perform her duties as a matter of right.

4. The point raised by the counsel for respondent has no force as the spouse of the respondent is resident of village Damote. The respondent has been appointed as female teacher on the basis of her husband's residence more over if suppose the husband of the respondent is carrying on a business in Gilgit city he can easily come and go to his native village daily where distance is hardly one hours drive. Moreover the respondent being a civil servant is bound to follow terms and conditions of service of civil servant, reference is placed to section 10 of Civil Servants Act which reads as under:---

Section 10. Posting and transfer .---Every civil servant shall be liable to serve anywhere or outside of Pakistan in any equivalent or higher post under the Federal Government or any Provincial Government or local authority or a corporation or body set up or established by any such government:

Provided that nothing contained in this section shall apply to a civil servant especially recruited to serve in a particular area or region;

5. We have also gone through the judgment of learned single Judge of Northern Areas Chief Court which is not well reasoned and supported by any law. The concession has been extended to respondent merely on humanitarian grounds without support of any law. We observe that the interest of one individual cannot be preferred to the interest of general public especially the female students for whose interest the respondent has been appointed. The Civil Courts never interfere in posting/transfer case as a routine. However the High Courts can interfere in such matters. That too in writ jurisdiction when the acts of authorities found to be based on mala fides, but in the present case neither the mala fide is alleged nor proved.

In the light of foregoing reasons, we convert this petition into appeal and allow the same. The judgment dated 17-10-2008 passed by single Judge of Chief Court is set aside while the orders of trial Court dated 23-10-2007 as well as orders of 1st Appellate Court dated 3-11-2007 are maintained.

M.H./16/Glt. Appeal allowed.