Mst. SHABANA NIZAKAT Versus GOVERNMENT OF THE PUNJAB

MUHAMMAD FARRUKH IRFAN KHAN, J.---- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the legality and validity of notification of the Government of the Punjab bearing No.WW.EDU 14(395)/17/285 dated 03.07.20917 which reads as under:-

"In pursuance of the decision of Punjab Workers Welfare Board taken in its 106th meeting held on 08.05.2017, no Husband and Wife will be posted at same school and wherever husband and wife are working in the same school, either of the two will be transferred and posted at nearby school.

2. The above decision/ policy will be applicable for all employees of Workers Welfare Schools irrespective of any cadre or category."

2. Learned counsel for the petitioner contends that the impugned notification is ex-facie discriminatory, being violative of Articles 4, 9 and 25 of the Constitution as it made applicable only to the employees working in the Welfare Board Schools, while the said notification is not applicable to the employees of Directorate of Education Wing, who have/had the same service rules; that the impugned notification is also discriminatory as it was made applicable only on the spouses while the other relative such as father and son, brother and sister are immune from this notification; that the impugned notification is in conflict of Wedlock Policy of the Government of the Punjab according to which utmost effort is to be made to accommodate the spouses at the same station; that the impugned notification is devoid of any logic/wisdom as if the spouses of Directorate of Education can remain posted in the same office, then why the spouses in schools cannot be allowed to remain together in a similar school; that pursuant to the impugned notification the petitioners have been transferred to various station which orders are also liable to be struck down.

3. On the converse, learned counsel for the respondent submits that it was noted that at certain places where both husband and wife are working in the same school some problems i.e. undue favour and opportunity to spend more time together are being faced as such the impugned notification was issued for smooth conduct of business; that the Punjab Workers Welfare Board is a statutory body, who is fully empowered to formulate any policy for the welfare of the institution.

4. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

5. The impugned notification as is evident from its wording is a result of decision of Punjab Workers Welfare Board, who no doubt is vested with powers to make decision in the interest of the Board but it is well established now that this Court can intervene with any decision of the executive which proceeds on any one of the following demeanor:- "i. "Illegality" which means that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. ii. "Irrationality" was referred to as "Wednesbury unreasonableness" (Associated provincial picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223). It applies to a decision which is so outrageous in its defiance or logic or of accepted moral standards that no sensible person who had applied his mind to the question to be settled could have arrived at it. iii. "Procedural Impropriety" is another ground which means and includes failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision."

6. Seeing the impugned notification on the touchstone of above criteria, I have no hesitation in holding that the impugned notification is devoid of any logic/wisdom, as well as against the principle of fairness and discriminatory. Although in their report and parawise comments, respondents are of the view that the impugned decision was made due to following reasons:- "i. Undue favour to each other ii. Opportunity to spend more time together ignoring official assignments. iii. House life remains together between the two. iv. Increased chances of making groups/ pitting different persons against each other. v. Creating conflict at work place. vi. Monopolization of System. vii. Leakage of secrecy."

However, learned counsel has failed to explain that if posting of spouse at a same school is so harmful and disadvantageous then why the said principle was not applied to the employees of Directorate of Education Wing which undisputedly have the same service rules and employees of both wings can be transferred to each other. Further, monopoly, undue favour and grouping cannot be restricted only to the extent of spouses while other relatives such as brothers, sisters, father and son if posted at a same school may also lead to a similar result but the impugned notification is not made applicable to these relations. By taking such a defence in issuing impugned notification the respondents infact have confessed inability, incapacity and incapability of the heads of the schools to maintain discipline and fulfill their obligations. In running an institution relationship of employees should not be of any consideration and utmost efforts should made to provide such an harmonious and competitive atmosphere so that every employee could deliver more than his/her capacity and not to indulge in such like activities which may lead to social/ psychological problems amongst the employees.

7. By issuing impugned notification the respondents have also failed to take into consideration Wedlock Policy of the Government of the Punjab dated 15.06.1984 which requires that utmost efforts should be made to bring the spouse together at a same station in order to avoid psychological/economical strains. Learned counsel for the respondent has also failed to cite even a single example from where it could be inferred that posting of a spouses at a same school leads to some untoward incident or deteriorating situation as apprehended by him.

8. For the above discussed reasons, the impugned notification being devoid of any rationale, result of discrimination and mis-use of authority cannot be allowed to hold the field. Therefore, while accepting this writ petition the impugned notification dated 03.07.2017 and subsequent transfer orders to the extent of the petitioners are set-aside.

MH/S-23/L Petition allowed.