2020 PLC(CS)N 31

Mst. SHAKEELA TAMRAIZ, THEATRE NURSE B-11, MATERNITY CENTRE, CMH, MUZAFFRABAD Versus SECRETARY POPULATION WELFARE, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

Citation2020 PLC(CS)N 31

CourtSupreme Court of Azad Jammu and Kashmir

Judge(s)Ch. Muhammad Ibrahim Zia, CJ and Ghulam Mustafa Mughal

GHULAM MUSTAFA MUGHAL, J. ----The captioned appeal by leave of the Court arises out of the judgment dated 27.3.2019 passed by the Azad Jammu and Kashmir Service Tribunal in Service Appeal No. 93 of 2019.

2. The brief facts forming the background of the captioned appeal are that Mst. Shakeela Tamraiz, appellant, herein, filed an appeal before the Azad Jammu and Kashmir Service Tribunal on 11.2.2019 alleging therein that she is a permanent employee of the Population Welfare Department and is performing her duties as Theatre Nurse since 2009. It was averred that vide order dated 7.2.2019 the appellant was transferred in place of private respondent, herein, who is performing her duty as Councilor B-11. It was further averred that the cadre of the appellant is Theatre Nurse whereas the cadre of the private respondent is Councilor, hence, the transfer order has been issued in share violation of law and rules, which is liable to be cancelled. The appeal was admitted for regular hearing and the respondents were summoned to file objections/written statement. The private respondent filed objections, which were treated objections on behalf of all the official respondents. It was stated in the objections that the respondent has also been promoted as Theatre Nurse B-11 prior to the appellant and the appellant has tried to mislead the Tribunal by concealing the fact of respondent's promotion as Theatre Nurse, as such the transfer order has rightly been issued. It was further stated that no terms and conditions of appellant's service has been affected, hence, she is not an aggrieved person, therefore, she has no locus standi to file the appeal. The learned Service Tribunal after hearing the parties has dismissed the appeal through the impugned judgment dated 27.3.2019.

3. Sardar Shoukat Ali, the learned Advocate appearing for the appellant argued with vehemence that the appellant, herein, was promoted against the post of Theatre Nurse in grade B-11 and stood transferred in place of the private respondent, who is serving as Councilor B-11. He argued that transfer was mala fide and against the rules, therefore, the same was challenged by way of an appeal before the Service Tribunal, but the learned Service Tribunal through the impugned judgment dated 27.3.2019 has erroneously dismissed the appeal. He argued that although a civil servant is bound to serve anywhere but he cannot be posted on the post for which he has no experience and qualification. He submitted that the impugned judgment of the learned Service Tribunal is illegal and perverse, therefore, the same is liable to be recalled.

4. Messrs Mansoor Pervaiz the learned Advocate and Raja Ayaz Ahmed the learned Assistant Advocate General, on the other hand, defended the impugned judgment of the Service Tribunal and submitted that both the posts carry equal grade and qualification is also the same, therefore, no illegality has been committed by the authority while issuing the transfer order. They submitted that the appellant was not aggrieved and the impugned judgment of the learned Service Tribunal is supported by reasons as well as case law on the subject, hence, the same needs no interference.

5. We have heard the learned Advocates representing the parties and have perused the record of the case as well as the relevant rules. Under the relevant rules the posts of Family Welfare Councilor B-11 and Theatre Nurse B-11 though carry same grade but the nature of duty/job is not the same and their cadre is also different. A civil servant though is liable to be transferred and posted on any post but he cannot be compelled to perform duty for which he is not meant and appointed. Very extraordinary circumstances are to be shown for transfer and posting out of cadre. The learned Service Tribunal has decided the case mainly on the ground that posting and transfer is the prerogative of the authority. We have no cavil with the proposition but a civil servant cannot be compelled to serve out of his cadre. Such type of transfer cannot be considered to have been made in the public interest. The proposition was discussed by the Supreme Court of Pakistan in a case reported as Lt. Col. (R) Abdul Wajid Malik v. Government of the Punjab and another (2006 SCMR 1360), relevant portion whereof is reproduced as under:-

"...As mentioned hereinabove the question of posting exclusively falls within the domain of Competent Authority but such discretion must not be exercised in an arbitrary manner but judiciously and in accordance with settled norms of justice, equity and fair play. It is bounden duty of the Government that while exercising such discretion the requirement of job, nature of duties, requisite capabilities and know-how for its performance, qualifications of the incumbent, seniority position, general reputation and ACRs must be considered and there should be no extraneous consideration and political pressure...."

In the light of foregoing reasons, the appeal accepted and the impugned judgment of the learned Service Tribunal is set aside. Resultantly, the transfer order dated 7.2.2019 is hereby recalled.

ZC/2/SC(AJ&K) Appeal allowed.