1993 PLP (C (PLC(CS))

Respondents Nos. 2 and 3 in person. Respondent No. 1, being a P.T.C. teacher, posted in Government Girls Middle School, Dhodha, District Chakwal, applied for and was allowed leave for 120 days from 15‑2‑1993 .to 14‑6‑1993, vide order dated 6‑2‑1993, passed by the DDEO(W), Chakwal (respondent No. 3). The petitioner was appointed against the aforesaid leave vacancy on 21‑2‑1993. Respondent No. 1 did not resume duty on expiry of leave, over good length of period, and in her absence she was transferred to another school and thus posting of the petitioner in place of respondent No. 1 was made permanent.

2. After having remained absent from duty for 45 days, respondent No. 1 reported for duty. In order to pressurize respondents Nos. 2 and 3, the Headmistress of Middle School, Dhodha and DDEO, Chakwal, respondent No. 1 filed a writ petition, challenging the validity of her transfer order dated 10‑7‑1993, as also legality of appointment of the petitioner in her place. This petition was disposed of on 15‑8‑1993 by my brother Raja Afrasiab Khan, J., with the direction that the petitioner and respondent No. 1 both would be accommodated by posting them at places nearer their homes on or before 22‑8‑1993. Actually the direction had come in wake of an assurance given by Mr. Naeem Qureshi, Assistant Director (Schools), Rawalpindi Division, who had appeared in the Court, to assist the learned AA.‑G.

3. Pursuant upon this Court's orders dated 15‑8‑1993, the DDEO (W), Chakwal on 16‑8‑1993 withdrew the previous order dated 10‑7‑1993 (transferring respondent No. 1 from G.G.M.S. Dhodha to another school. These orders (dated 16‑8‑1993) have caused grouse to the petitioner, who has impugned the orders (dated 16‑8‑1993) by filing the present writ petition.

4. It is so well‑known that transfer orders are not challengeable by way of a writ petition, as postulated by Article 212, Constitution of Islamic Republic of Pakistan, and it has been so said in the instant petition by the petitioner herself, whose counsel urges that actually this plea should have been taken by the learned AA: G. as also the representative of the Education Department, on appearance in the Court on 15‑8‑1993, in the proceedings of respondent No. 1's writ petition. He has made an insinuation that the Assistant Director seemed to have colluded with respondent No. 1 to benefit her, and this inference would further be reinforced by the fact that the DDEO, on the following day, i.e. on 16‑8‑1993 (presumably under orders of the Assistant Director), had issued the orders cancelling the transfer orders of respondent No. 1 from Government Girls Middle School, Dhodha to another place, and the orders dated 16‑8‑1993 were purportedly passed in compliance of High Court's orders dated 15‑8‑1993, although this Court had not said so, and had only desired that both the respondent No. 1 and the petitioner should be accommodated at stations close to their dwelling places. On 16‑8‑1993 no orders were passed about posting of the petitioner in reference to this Court's direction of the previous day. A perusal of the record reveals that the petitioner had under earlier orders issued sometime in July been shifted to a school at another place. The same order, it appears, was deemed to hold good, as regards the petitioner's posting. No care was taken by the department to ensure that the petitioner too should have got a posting nearer her home.

5. There appears to be lot of force in the plea invoked by the petitioner to the effect that respondent No. 1, who had been proposed to be departmentally proceeded against for remaining absent from duty with no valid reason, for nearly six weeks was in a way rewarded and the petitioner was punished by virtue of the impugned orders dated 16‑8‑1993. On record there have been placed a number of notices issued to respondent No. 1, calling upon her to report for duty and warning her that in the event of her continued absence strict disciplinary action would be taken against her for violation of the rules and breach of the service discipline, as also for her wilful absence from duty without leave. According to the petitioner, respondent No. 1 had actually gone abroad in search of employment, in Saudi Arabia, on a visit visa, and had left the country without NOC, as also ex‑Pakistan leave. Respondent No. 1 had not applied for extension of leave even. In these circumstances, a spirit of accommodation should have been shown to the petitioner rather than to respondent No. 1.

6. In any case, orders passed by this Court on 15‑8‑1993 were not truly complied with by the Department, and the following day's orders passed by the Department caused prejudice to what has been termed as her service interests by the petitioner. Truly speaking, as already said, no civil servant can impugn his or her transfer order and has no right to remain at a place of his/her choice. Since, however, orders involving posting of the petitioner and respondent No. 1 had been passed by this Court, on entertaining writ petition of respondent No. 1, and disposal of the petition had been made in presence of the departmental representative, and on an assurance given by him, interests of justice demand that the present petition too should not straightaway be dismissed but should get similar treatment at the hands of this Court, as had been done earlier, but, at the same time, it is made clear to the parties, as also A the Department, that this exercise must not be permitted to enure in future, for the simple reason that being a service matter an order of transfer cannot be impugned or got undone through a writ petition.

7. Before parting with the order, it may be mentioned that although in the previous writ petition the present petitioner had been made a party, she had not been served, nor afforded an opportunity of hearing; and she says that had she appeared in the Court she would have apprised the Court of the actual state of affairs and the defiant attitude and stark indiscipline displayed by respondent No. 1, then petitioner before this Court. Absence of the present petitioner from the previous proceedings is a fact which is not denied by respondent No. 1. 8.The impugned orders dated 16‑8‑1993, having been passed in disguise and in assumed obedience to this Court's orders dated 15‑8‑1993, but not in true compliance of the aforesaid orders, must not be permitted to hold the field and must go. Further, transfer orders shall be made in faithful deference to orders dated 15‑8‑1993 of this Court; and the same do not mean to say that respondent No. 1 must .be adjusted at her previous place of posting and the petitioner should be shifted elsewhere. Both must be accommodated nearer their homes. It is also expected that action shall be taken respecting the delinquency on the part of respondent No. 1 and undue favour shall not be shown to any one.

9. The impugned orders are set aside and the petition is accepted. A.A./F‑103/L?????????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.