2011 PLP (C (PLC(CS))

IQBAL HAMEED-UR-RAHMAN, J.

By way of instant petition, the petitioner has assailed the impugned transfer order, dated 15-10-2009; whereby the petitioner was transferred to Government Girls. Primary School, Kotli Dasu Singh, Daska, District Sialkot.

2. Brief facts of the case as depicted in the instant writ petition are that petitioner was posted as ESE, Government Girls Primary School Dharamkot, Tehsil Daska, District Sialkot on 7-10-2002. That by way of mutual transfer the petitioner was transferred and posted at Government Girls Elementary School Seoke vide order, dated 1-9-2009. The petitioner joined her new place of posting on 9-9-2009, however, due to political pressure she was again transferred to Girls Primary School Kotli Daso Singh vide order, dated 15-10-2009, which has been impugned through the instant writ petition.??????

3. Learned Additional Advocate-General at the very outset states that grievance of the petitioner to the extent of non-payment of her salary has been redressed by the respondents and payment of her salary has been made to the petitioner upto 31st January, 2010.

4. Learned counsel for the petitioner has vehemently contended that the mutual transfer order, dated 1st September, 2009 has been cancelled without giving any cogent reason just after thirteen days. It is alleged that the impugned order, dated 15-10-2009 has not been passed on administrative grounds rather on the political pressure of local MPA namely Ch. Jameel Ashraf who also wrote a letter to respondent No.1 in this regard. Learned counsel went on arguing that even on account of Wedlock Policy the petitioner is entitled to be posted at Government Girls Elementary School Sioke as husband of the petitioner is also posted in the same village. To substantiate thus stance, learned counsel for the petitioner has relied upon PLD 1995 SC

530. While summing up his arguments learned coup el for the petitioner has submitted that the case of the petitioner is on equal footings to that decided in the supra case as such impugned order, dated 15-10-2009 is liable to be set aside.

5. Learned counsel representing, respondent No.3 has vehemently controverted the assertions advanced by learned counsel for the petitioner. Learned counsel for Respondent No. 3 has also raised objection on the maintainability of the present writ petition, as according to him due to bar of Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973, Service Tribunal has the exclusive jurisdiction to entertain, such matters. While controverting, the contention of learned counsel for the petitioner regarding, political pressure in the impugned transfer order, learned counsel for respondent No.3 has contended that the petitioner has not approached this Court with clean hands as forgery has been committed in the D.O. letter of the local MPA and the said MPA. Ch. Jameel Ashraf has also wrote letter to respondent No.2 regarding this factum that his D.O. letter has been misused by the petitioner and his signatures are also bogus. It is further stated that transfer of the petitioner has been made on the basis of application submitted by the residents of village Sioke and the petitioner in order to approach this Court has given colour to her transfer as on the basis of political motivation.

6. Learned Additional Advocate-General while adopting the arguments advanced on behalf respondent No 3, has further added that the transfer order dated 15th October, 2009 has been made purely on administrative grounds. When confronted with the main contention of learned counsel for the petitioner with regard to mutual transfer of the petitioner as well us wedlock policy, learned Additional Advocate General has not been able to controvert the same.

7. Arguments advanced from all corners have been heard. I have also gone through the record available on file minutely.

8. First of all I intend to dilate upon the question of maintainability of the instant writ petition. By now it is settled principle of law that wherever fundamental rights of any citizen of the country are infringed, extraordinary constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 comes to play. Through the impugned order dated 15-10-2009, not only the basic/ fundamental rights of the petitioner have been usurped but the same is also against the spirit of Wedlock Policy introduced by the Government, therefore, the impugned order has malafidely and illegally been passed in contravention of basic law and the policy declared by Government of the Punjab as such the instant petition is maintainable before this Court.

9. In the light of submissions advanced by learned counsel for the petitioner, the main points to be determined by this Court are (i) the transfer order, dated 1-9-2009 was made on mutual transfer basis; (ii) the posting, of the petitioner at Government Girls Elementary. School Sioke, Daska, District Sialkot is as per Wedlock Policy of the Government of the Punjab as husband of the petitioner who is also an employee of the Education Department is also posted in the same village; and (iii) Transfer order dated 15th October 2009 was issued due to political pressure raised by the local MPA. Learned counsel for respondent No.3 as well as learned Additional Advocate-General have hot been able to controvert that the transfer order dated 1-9-2009; whereby the petitioner was transferred to Government Girls Elementary School Sioke, Daska, District Sialkot was a mutual transfer. There is also no denial to the fact that the husband of the petitioner is serving in village Sioke, Daska and the same is also within the spirit of the Wedlock Policy, introduced by the Government of the Punjab and the same is acted upon zealously. If one spouse in Government department is posted at one city and the other spouse is posted at a different city is definitely going to cause mental distress to both of them with the consequences which arc not only injurious to them, but to the public and Government exchequer as well. Respondent No. 2 while issuing, order, dated 15-10-2009 has not advanced any plausible reason for transferring the petitioner to a different station, which admittedly is against the spirit of the Wedlock Policy and is liable to be struck down on this sole ground. The contention of learned counsel for the petitioner that the order has been passed due to political pressure of the local MPA is fortified when the same has been issued in sneer violation of the Wedlock Policy and that's too without giving any cogent reasons.

10. As a result of my above discussion, while relying, upon dictum of law laid down in the case of Muhammad Zia-ul-Haq v. Secretary to Government of the Punjab, Livestock and Dairy Development Department, Lahore and 4 others 2003 PLC (C.S.) 1322, impugned transfer order, dated 15-10-2009, issued by respondent No.2 is set aside. H.B.T./S-66/L????????????????????????????????????????????????????????????????????????????????????? Petition accepted.