2014 PLP (C (PLC(CS))

RAJA SAEED AKRAM KHAN, J.

This appeal, with the leave of the Court, has been filed to assail the judgment passed by the Service Tribunal on 19-9-2012, whereby the appeal filed by the appellant, herein, was dismissed in limine.

2. The brief facts forming the background of this appeal are that the appellant has been transferred from Construction Division of Electricity Department, Kotli, to Operation Division of Electricity Department, Pallandri in place of respondent No.6 while respondent No.6 has been transferred from Operation Division, Pallandri, to Construction Division, Electricity Department, Kotli, in place of the appellant vide order dated 13-9-2012. Feeling aggrieved, the appellant filed an appeal in the Service Tribunal and the Service Tribunal vide order dated 19-9-2012 dismissed the appeal in limine. The aforesaid order of the Service Tribunal has been assailed through the instant appeal.

3. Sardar Muhammad Habib Zia, Advocate, the learned counsel for the appellant, has argued that the judgment passed by the Service Tribunal is against law and facts of the case as the Tribunal failed to take into consideration that the impugned transfer order was not passed by the competent Authority, therefore, that was not sustainable in the eye of law. He further argued that the argument advanced by the learned counsel before the Service Tribunal was not taken into consideration and the Service Tribunal failed to dilate upon the issue that the department of Electricity has been divided into two zones, i.e., South and North, therefore, respondent No.1 was not competent to pass any transfer order of an employee of South Zone which has been issued without lawful authority. The Service Tribunal failed to look into the matter properly and also failed to give finding on the issue that two Chief Engineers, i.e., Mirpur and Muzaffarabad Divisions, are working simultaneously whose jurisdiction has been determined accordingly and no one can interfere with other's jurisdiction. This point was required to be resolved after due deliberation but the Service Tribunal failed to take into consideration this fact while dismissing the appeal in limine. The learned counsel for the appellant taken us to rule 22(1), Schedule VIII clause 4 of the Rules of Business, 1985 and argued that the above said Schedule has not been looked into in letter and spirit. He lastly argued that the relevant rules were not followed in letter and spirit and this fact has not been attended by the Service Tribunal in its true sense.

4. On the other hand, Mr. Noorullah Qureshi, the learned counsel for respondent No.6, has strongly opposed the arguments advanced by the learned counsel for the appellant and has argued that the transfer order is perfect and legal, therefore, no interference is called for by this Court. He urged that the Rule referred to by the learned counsel for the appellant is not applicable in this case as the same is applicable only to the employees of the Civil Secretariat within one department to the other. There is no concept of establishing two independent zones of the Electricity. He has drawn the attention of the Court to the impugned order and argued that the same has been passed with the consent of the appellant, therefore, he cannot claim that the transfer order has illegally been passed. He further submitted that the appellant remained posted at one station for more than 26 years and during this period previously he was only transferred from one room to the other in the same building. However, it is admitted position that he remained at Kotli for the last more than 26 years. Normally, the tenure of stay of a civil servant is not more than three years. He further submitted that under rule 31 of the Azad Jammu and Kashmir Electricity Department Service Rules, 2010, the appointing Authority of the appellant is Chief Engineer and the appointing Authority is always is the transferring Authority, therefore, the impugned order cannot be said to have been passed without lawful authority.

5. Ch. Shaukat Aziz, Additional Advocate-General, has opted the argument of the learned counsel for respondent No.6 while arguing that no civil servant can claim transfer and posting of his own choice. He is liable to serve anywhere under the Government.

6. We have heard the learned counsel for the parties at some length and perused the impugned judgment and transfer order. Admittedly, the appellant is an employee of the Electricity Department and the department has been divided into two zones, i.e., South and North zones. The establishment of two zones does not mean that the department has been bifurcated into two independent departments. That is only for administration purpose and this fact has not been denied by the learned counsel for the appellant. Therefore, the argument of the learned counsel for the appellant that Chief Engineer North could not pass the transfer order of the appellant has no force. As the appointments and transfers are made by the Chief Engineer, Headquarters, he is fully competent to pass a transfer order. Even otherwise we have given our look to the Rules governing the employees of the Electricity Department, i.e., the Azad Jammu and Kashmir Electricity Department Service Rules, 2010. Under Rule 31, the appointing authority of the appellant is Chief Engineer and the transfer order dated 13-9-2012 itself negates the position as the same was passed with the consent of the appellant, therefore, the argument of the learned counsel for that appellant that the appellant was illegally transferred has no force.

7. While adverting to the applicability of rule 22(1), Schedule VIII, Part A, clause 4 of the Rules of Business, 1985, it may be stated that the said rule is only relevant to the employees of Civil Secretariat, whereas clause 4 of Part C of Schedule VIII, relates to the transfer of civil servants from one attached department to another department. In the case in hand, according to its facts, these statutory provisions do not attract and to this extent the argument of the learned counsel for the appellant is misconceived and is hereby repelled.

8. As time and again this Court has held in a number of cases that normal tenure of stay of a civil servant at one station should not be less than three years but in the exigencies of the service, the transfer can be made before that time if the terms and conditions of service of a civil servant are not affected, as has been held by this in a recent case titled Abdul Jabbar v. District Education Officer and others [Civil Petition for Leave to Appeal No.151 of 2012 decided on 30-11-2012]. The relevant observation is reproduced as under:

" . Time and again, this Court has held that no civil servant can claim the posting of his own choice and he is liable to be transferred anywhere. According to the guidelines given by this Court the tenure of stay at one station should not be more than three years. However, in the exigencies of service, the competent Authority can transfer a civil servant before that period if the terms and conditions of his service are not affected. Even otherwise, the posting and transfer is the prerogative of the Government as has been laid down by this Court in a case titled Mst. Shaista Idrees v. Mst. Gul Shireen and 7 others (2006 SCR 294] in which it has been held as under:

6. After enumerating the above facts, law and the case-law we are of the opinion that under section 9 of the Civil Servants Act, 1976, every civil servant is liable to serve anywhere in or outside Azad Kashmir on a post under the Government of Azad Jammu and Kashmir or the Council or Federal Government of Pakistan or any Provincial Government of Pakistan or a local authority, corporation or body, set up or establishment by any such Government. The only condition imposed on this power of the Government is that where a civil servant is required to serve on a post outside the service or his terms and conditions of service as to pay shall not be less favourable than those he was entitled to before the order of transfer or posting.' " It has been further observed in the case referred to above as under:

"

6. The argument of the learned counsel for the petitioner that a civil servant cannot be transferred out of a Union Council has also no force as such like instructions/circulars is against the spirit of section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976, therefore, no legal status can be given to such like instructions/circulars which amount to defeat the statutory provisions of law, i.e., section 9 of the Civil Servants Act, 1976."

9. Even otherwise, the transfer order impugned before this Court has already been implemented and both the civil servants are drawing their salary from their respective divisions, therefore, we see no illegality or infirmity in the order passed by the Service Tribunal which is hereby upheld. In view of the above discussion, we do not find any substance in this appeal which is hereby dismissed with no order as to costs. HBT/55/SC(AJ&K) Appeal dismissed.