2020 PLP (C (PLC(CS))

RAJA SAEED AKRAM KHAN, J.

The titled appeal by leave of the Court arises out of the judgment of the Service Tribunal dated 12.10.2017, whereby while accepting the appeal filed by respondent No.1 herein, the order dated 28.4.2017, has been set aside.

2. The relevant facts giving rise to the filing of the instant appeal are that respondent No.1, herein, filed an appeal in the Service Tribunal, alleging therein that he is a permanent disable employee of the Education Department and is performing his duties as the Primary Teacher at Primary School Katkair. Through the transfer order dated 28.4 2017, he has been transferred to Middle School Lohar Kot. He alleged that the said order has been issued against law, rules and the provisions of Government notification dated 20.9.7005. He further alleged that through the impugned transfer order, the terms and conditions of his service have badly been affected. After necessary proceedings, the learned Service Tribunal, through the impugned judgment dated 12.10.2017, accepted the appeal and set aside the transfer order dated 28.4.7017 hence this appeal by leave.

3. Raja Aftab Ahmed, Advocate, counsel for the appellant, submitted that the learned Service Tribunal has misconstrued the facts and law while handing down the impugned judgment, which is not sustainable in the eye of law. He submitted that the learned Service Tribunal has committed great illegality while not taking into account that the respondent is neither disable nor he has been appointed against the vacancy falling in the quota reserved for disable persons. He added that according to the record, the appellant performed his duties during general elections and the census in the hard areas, which shows that he is completely fit to perform all sort of duties and cannot be said to be a disable person. The learned counsel further submitted that the transfer order dated 28.4.2017 has been issued after a period of five years of his stay at one station. The learned counsel submitted that under section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976, no civil servant can claim posting at the place of his own choice for an indefinite period but the learned Service Tribunal has not properly perused the record and without applying independent judicial mind, the impugned judgment has been delivered.

4. On the other hand, Raja Shujaat Ali Khan, Advocate, counsel for respondent No.1, strongly opposed the arguments addressed by the counsel for the appellant while defending the impugned judgment. He submitted that the judgment has been passed after due deliberation and attending all the legal and factual aspects of the case, which is not open for interference by this Court. He referred to the copy of National Identity Card of the respondent, while submitting that the same is having an insignia, which is only possessed by the disable persons. He added that in the presence of this unrebutted document issued by the National Database and Registration Authority (NADRA), no other material is required to be examined. The learned counsel also placed on record a disability certificate issued by the Directorate Social Welfare Department. In continuation of the arguments, the learned counsel submitted that before issuing the certificate, the respondent was duly declared disable by the Medical Board.

5. We have heard the learned counsel for the parties and gone through the impugned judgment along with the record made available.

6. The controversy involved in the matter is that respondent No.1 claims to be a disable person. He challenged the transfer order 28-4-2017 before the Service Tribunal, whereby he was transferred from Government Primary School Katkair to Government Boys Middle School Lohar Kot on the ground of exemption due to the disability. The learned Service Tribunal has accepted the appeal filed by the respondent through the impugned judgment. It may be observed here that the record is silent about the appointment of the respondent against the post reserved for disable persons. On the other hand, the respondent has placed on record a certificate issued by the Directorate Social Welfare Department, on 26.8.2016, after getting the opinion of the medical board. Similarly the National Identity Card of the respondent is also having the insignia of disable persons. In this situation, when the respondent has not been appointed against the post reserved for disable persons and he is heavily relying upon disability certificate issued in the year 2016, whether he is a disable person or not, is a disputed question of facts, which can only be resolved by the Court having powers to record the evidence, if so required, which is not the job of this Court. It may also be observed here that the Service Tribunal is equipped with all the powers of civil Courts under section 5(2) of the Azad Jammu and Kashmir Service Tribunals Act, 1975, and is, thus, fully competent to record the evidence, if needed. In this state of affairs, we are not inclined to make any sort of comments regarding authenticity of the documents, on which the respondents is heavily relying, and ascertain the disability or fitness of the appellant by ourselves, rather we intend to remand the case to the Service Tribunal to attend all the controversial issues involved in the case, after taking into account the arguments of the counsel for the parties and the other material and decide the case afresh. With these observations, the appeal is accepted, the judgment passed by the Service Tribunal on 12.10.2017, is set aside and the case is remanded for fresh decision, with no order as to costs. ZC/70/SC(AJ&K) Case remanded.