2017 PLP (C (PLC(CS))

M. TABASSUM AFTAB ALVI, J.-- The captioned writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, a writ in the, nature of prohibition is solicited against respondents jointly and severally posting petitioner from the post of Assistant Professor B-18. Fatima Jinnah Post Graduate College for Women, Muzaffarabad.

2. The precise facts culminating into filing of the instant writ petition are that petitioner was appointed on recommendation of Public Service Commission as Lecturer English B-17, in Girls Degree College Chakswari, vide Government notification dated 20.04.2004. Thereafter, petitioner was appointed by transfer from Girls College Chakswari, against the post of Lecturer English B-17, in Fatima Jinnah Post Graduate College for Women, Muzaffarabad, vide Govt. notification dated 09.11.2005. The petitioner while performing her duties as Lecturer English B-17, was promoted on recommendation of respective Selection Board as Assistant Professor B-18, vide Government notification dated 14.03.2014. The claim of petitioner is that her husband namely Raja Muhammad Aftab, is a Government Employee, who is performing his duties within the municipal limits of Muzaffarabad, as Deputy Director Operation B-18, in Azad Jammu and Kashmir TEVTA. It is maintained that according to Government notification dated 25.08.1998, the husband and wife shall be posted at one station, so far as possible, however, respondents by violating the aforesaid Government notification have determined to transfer petitioner outside of the municipal limits, Muzaffarabad, hence, the instant constitution petition.

3. The respondents despite obtaining several opportunities failed to file written statement, hence, were proceeded ex parte, vide order dated 08.09.2016.

4. Raja Muhammad Hanif Khan, the learned counsel for petitioner while reiterating the grounds of writ petition submitted that petitioner was appointed on recommendation of Public Service Commission as Lecturer English B-17, in Girls Degree College Chakswari, vide Government notification dated 20.04.2004, who, was later on posted from the aforesaid College to Fatima Jinnah Post Graduate College for Women, Muzaffarabad, vide Government notification dated 09.08.2005, while she was lastly promoted as Assistant Professor B-18, in the same institution, vide Government notification dated 14.03.2014. He maintained that husband of petitioner is a Government Employee, who is performing his duties within the municipal limits of Muzaffarabad, as Deputy Director Operation B-18, in Azad Jammu and Kashmir TEVTA. The learned counsel pressed into service that according to Government policy notification dated 25.08.1998, husband and wife shall be posted at one station, however, respondents have determined to transfer petitioner outside the municipal limits of Muzaffarabad, hence, craved for issuance of solicited writ.

5. Syed Ishfaq Hussain Kazmi, the learned Legal Advisor of Education Department very generously submitted that Government notification dated 25.08.1998, supports the claim of petitioner.

6. I have perused the contents of writ petition and examined the appended documents made available with utmost care.

7. As per record petitioner is performing her duties as Assistant Professor B-18 in Fatimah Jinnah Post Graduate College for Women, Muzaffarabad, on the basis of Government notification dated 14.03.2014. The husband of petitioner is admittedly performing his duties within the municipal limits of Muzaffarabad, as Deputy Director Operation B-18, in Azad Jammu and Kashmir TEVTA. According to Government policy notification dated 25.08.1998, the husband and wife are entitled to be posted at one station, so far as possible, which speaks as follows:- URDU

8. The Government, however, later on issued another notification dated 03.07.2006, through which it is maintained that Female Civil Servants, even if their husbands are not Government servants, shall be posted at nearest station of her husband's residence, which is also reproduced as under:- URDU

9. As per explanation of section 51 of Interim Constitution Act 1974, a notification includes in the definition of law, which speaks as follows:- "

51. Continuance of Existing Laws.- Subject to the provisions of this Act, all laws which, immediately before the commencement of this Act, were in force in Azad Jammu and Kashmir shall continue in force until altered, repealed or amended by an Act of the appropriate authority. [Explanation.- In this section.- (a) 'laws' includes Ordinance, Orders, rules, bye-laws, regulations and any notification and other legal instruments having the force of law; and (b) `in force' in relation to any law, means having effect as law whether or not the law has been brought into operation."

10. The aforesaid Government Policy notifications are, therefore, covering in the definition of law, which postulate that spouses shall be posted at one station, so far as possible, or Females civil servants, shall be transferred nearest to residence of their husbands, even if they are not Government servants, hence, petitioner is entitled to equitable relief of writ jurisdiction.

11. The crux of above discussion is that by accepting the instant writ petition the respondents jointly and severally are restrained to transfer petitioner from the post of Assistant Professor B-18, Fatimah Jinnah Post Graduate College for Women, Muzaffarabad, till her husband remained posted at Muzaffarabad. The writ petition is accepted in the manner as indicated herein above with no order as to the costs. ZC/8/HC(AJ&K) Petition allowed.