' CH. MUHAMMAD IBRAHIM ZIA, J.--- The above titled appeals, with leave of the Court, have been filed against the judgments passed by the learned Service Tribunal dated 30-6-2010 in Civil Appeal No,189 of 2010, 23-9-2010 in Civil Appeal No,298 of 2010, 23-12-2010 in Civil Appeal No,716 of 2010, 17- 1-2011 in Civil Appeal No,595 of 2010 and 3-1-2011 in Civil Appeal No,332 of 2011, respectively. As the common question of law is involved in all the appeals, hence these are disposed of through this common judgment.
2. The facts of Civil Appeal No,157 of 2010 are that appellant is a permanent employee of Azad Jammu and Kashmir Government TEVTA Department. On 16-8-2008, the appellant was transferred and posted in Girls Vocational School Bagh. The appellant was deputed for training by the department from 3-3-2010 to 17-3-2010 in the National Training Bureau, Government of Pakistan, Islamabad. Meanwhile the appellant was transferred on 11-3-2010 from Female Vocational School Bagh to Female Vocational School Rerha and at her place respondent No,6 was transferred and posted by the department. The appellant challenged the transfer order dated 11-3-2010 through an appeal before the Service Tribunal on 27-3-2010, on the grounds that the departmental order was issued in colourful exercise of powers against the judicious manner and also violative of uniform policy which smacks of discrimination. However the appeal was dismissed by the Service Tribunal vide order dated 30-6-2010, for the reason that the impugned departmental order remained suspended and the appellant has gained sufficient time to occupy the position. Moreover, in absence of transfer policy the appeal is not maintainable. Hence this appeal with leave of the Court.
3. The facts of Civil Appeal No, 191 of 2010 are that the appellant who was serving in the Education Department as Assistant Education Officer, was transferred and posted as Senior Teacher Government High School Kajlani and at his place respondent No,5 was transferred and posted vide order dated 28-5-2010. The appellant challenged the aforesaid transfer order through an appeal before the Service Tribunal on the ground that after serving for, a long time of 9 years he was posted by transfer at the nearest station and just after eight month's period, the impugned order has been issued which is violative of uniform transfer policy and the principles of law laid down by the Supreme Court. However, after taking necessary proceedings the appeal was dismissed by the Service Tribunal vide judgment dated 23-9-2010, for the reason that the impugned departmental order remained suspended and the appellant has gained sufficient time and in absence of any transfer policy the appeal is not maintainable. Hence, this appeal with leave of the Court.
4. The facts of Civil Appeal No,12 of 2011 are that the appellant who was serving in the Education Department as Assistant Education Officer (Female) Constituency No,2, East, Muzaffarabad was transferred and posted as Head Mistress, Government Girls Middle School Panjkot vide order dated 11-12-2010 by the Education Department and respondent No,6 was transferred and posted at her place. The appellant challenged the transfer order dated 11-12-2010 through an appeal before the Service Tribunal on the ground that respondent: No,6 was under suspension due to absence from duty and the impugned order is issued in a discriminatory manner on the basis of favoritism.
However, the appeal was dismissed in limine by the Service Tribunal vide order dated 23-12-2010, for the sole reason that the appellant has failed to prove the fact of suspension of respondent No,6 from service and observed that there is no illegality or irregularity committed by the official respondent while issuing the impugned departmental order. Hence this appeal with leave of the Court.
5. The facts of Civil Appeal No,23 of 2011 are that the appellant was transferred and posted as District Education Officer Secondary Hattian Bala on 22-12-2009 when after a short span of ten months he was again transferred and posted as Principal Girls Higher Secondary School Rangala Dhirkot vide order dated 27-10-2010 and at his place respondent No,4 was transferred and posted.
The appellant challenged the transfer order dated 27-10-2010 through an appeal before the Service Tribunal. The main ground on which the appellant challenged the transfer order as alleged was that he is senior to respondent No,4 and the order is issued just after a period of less than one year of stay at a station. Moreover he has been posted in female institution which is against the dictum laid down by the Supreme Court. After taking necessary proceedings the appeal was dismissed by the Service Tribunal vide order dated 17-1-2011, for the reason that transfer order is a valid one and none of the terms and conditions of the appellant has adversely affected as he remained posted for more than a year on the post thus the appeal has no substance and is dismissed. Hence this appeal with leave of the Court.
6. The facts of Civil Appeal No,29 of 2011 are that the appellant who was serving in the Education Department as Junior Teacher in Middle School Dhirkot was transferred after three years and posted in High School Makhyala in place of respondent No,1 vide order dated 9-10-2009. The said order was kept in abeyance vide order dated 2-11-2009, however the same was cancelled on 3-11- 2009. The transfer order dated 9-10-2009 was later on cancelled vide order dated 13-11-2009, however the same was again cancelled vide order dated 14-11-2009. On 15-12-2009, the appellant was again transferred from High School Makhyala to Girls High School Ghazi Abad, however, the said order was later on cancelled on 16-12-2000. The appellant was again transferred from Girls High School Makhyala to Girls High School Ghazi Abad vide order dated 8-6-2010, which was subsequently cancelled vide order dated 16-6-2010. Respondent No,1 challenged the order dated 16-6-2010 through an appeal before the service Tribunal on the ground that that the impugned order was issued on the basis of political intervention which is against the settled uniform policy.
The order also smacks of discrimination. While setting aside the order dated 16-6-2010 the appeal was accepted by the Service Tribunal on the ground that the impugned order was passed against the Service Rules. The Service Tribunal also observed that the impugned order was passed against the service rules. Feeling dissatisfied the appellant challenged the aforesaid judgment of the Service Tribunal dated 3-1-2011 through instant appeal with leave before this Court.
7 In the impugned judgments of Appeals Nos.157 and 191 of 2010, the learned Service Tribunal has disposed of the appeals on identical point and with consistent observation that in absence of, any transfer policy the Government or Departmental Authority is at liberty to exercise the powers of transfer and posting in the manner as it deems fit. The learned Service Tribunal has opined that as the appellants have remained posted at a station for a sufficient time during the pendency of appeals, hence the appeals have no merit.
8. The learned counsel for the parties although addressed at Bar with reference to the peculiar facts of each case by reiterating their respective stands as incorporated in the pleadings and concise statements which are the part of the record and for the sake of brevity repetition is avoided, however, their main focus was on the identical legal points that:---
(i) presently no transfer policy is holding the field;
(ii) the Prime Minister, Chief Executive of Azad Jammu and Kashmir has issued a directive regarding the formulation of the policy; ' it has been mentioned in the notification for cancellation of previous transfer policies that till formulation of new policy the transfer orders should be made in a judicious manner.
9. It has been argued with full vehemence that in the absence of any prescribed transfer policy the competent authorities have to exercise their powers in a judicious manner whereas this Court has already observed that in relation to posting by transfer, there must be a uniform policy. Another argument advanced at Bar is that there must be some tenure minimum fixed for the transfer of a civil servant. The civil servant cannot be left on the mercy of the departmental authority to make him rolling stone.
10. On the other side it has been argued that under the provisions of section 9 of the AJ&K Civil Servants Act, 1976 there is no embargo on the competent authority that transfer should be made after a specific period or to mention any reason to justify the transfer. It is the discretion of the competent authority to appoint or post by transfer according to the requirement of administrative arrangements and for good governance. The only condition is that in case of transfer, the terms and conditions of a civil servant as to pay etc. Shall not be less favourable.
11. Whereas on the factual side of the each appeal the stress of the counsel for the appellants is that the orders of the Service Tribunal in the appeals are violative of principle of law and justice.
Conversely, the learned counsel for the respondents in all the appeals, who are defending the judgments of the Service Tribunal, submitted that the impugned orders are in accordance with the principle of law, therefore, the appeals are not maintainable.
12. We have heard the learned counsel for the parties in all the above-mentioned appeals and have also gone through the relevant record of the case and the authorities referred by the learned counsel for the parties in all the appeals.
13. In the light of the above stated facts and arguments on behalf of the learned counsel for the parties, first of all we would like to attend the identical legal points involved in all the captioned appeals relating to the matter of posting of civil servants by transfer. The identical points as emerged from the respective stands of the parties are summarized as following:---
(i) Whether according to spirit of law, for exercising the powers of transfer there should be some guideline or policy and in absence of any such guideline or policy how the powers of transfer are to be exercised; and
(ii) what is the status of directive issued by the Chief Executive/Prime Minister?
14. On both sides it has been argued that the Government had, from time to time, framed transfer policies subsequently the same have been withdrawn. It has also been referred that presently the Chief Executive/Prime Minister, has issued a directive in furtherance of. Cabinet decision. Whereas prior to this directive, on 6th March, 2009, a notification for cancellation of all the transfer policies was issued in which till the formulation of a new policy, all the competent authorities were directed to exercise their powers in a judicious manner.
15. The word "Judicious" ordinarily connotes the meaning of doing an act with wisdom and good sense:--- ' In the Black's Law dictionary, it has been defined as "well considered, discreet and wisely circumspect".
' The Chambers 20th Century Dictionary has assigned it the meanings of "according to sound judgment: possessing sound judgment; discreet", whereas in the Webster's New Explorer Encyclopedic Dictionary definition of this word is "having, exercising, or characterized by sound judgment; discreet.
' In the Qaumi Env.Lish-Urdu Dictionary published by the following Urdu meanings are assigned to the words "Judicious", adj. {{ URDU TEXT }} ' Thus the consensus of meanings assigned to the word "judicious" by all the dictionaries conveys and connotes passing of an order or taking an action after due application of mind in consideration of all the relevant facts, laws and rules wisely in good sense in exclusion arbitrariness, favoritism, nepotism or any type of influence or pressure. Broadly speaking the exercise of powers in judicious manner is synonymous to like a judicial judgment, which means to do justice between the concerned interested/affected and the contestant parties keeping the scale of justice balance and even without tilting it into favour of any one of parties.
16. It has been noticed that in majority of the transfer orders the term ( JK73LI. ) is always used without mentioning type of ( ). In our opinion, the prime interest is the public interest and with referred to civil services, it can only be best served by the civil servant by performing his assigned duties with satisfaction of mind, efficiently, honestly, accurately and with due diligence. The civil servants are paid from the public exchequer for this purpose. Certainly the Departmental Authority is under legal obligation to facilitate their subordinates for peaceful satisfactory performance of their assigned job. The legitimate facilitation to a civil servant enhances his peace of mind which results into better performance. The power of posting and transfer assigned to the authorities, doesn't mean to exercise according to their sweet will or with mala fide, either due to victimization, nepotism, favouritism or under any type of pressure including political, social or trade unionism.
The powers are vested for the purpose of achievement of good governance. Therefore, we are of the opinion that powers of posting and transfer must be exercised in a judicious manner meaning thereby with wisdom and good sense. It is noticed with serious concern that the practice of repealing and cancellation of enforced policy without substitution of new policy is not beneficial rather it creates an anomalous situation and vacuum. And in such situation possibility of exercise of powers in an arbitrary and discriminatory manner cannot be ruled out, therefore, it is directed that in future, such practice should not be repeated. The policy enforced shall not be cancelled or repealed unless it is substituted by a new or amended policy...
17. For ascertaining the intention of the Legislature and scope of the Departmental Authorities' powers in relation to posting by transfer of civil servants, we will have to revert back to the basic provisions of the Constitution. In Azad Jammu and Kashmir subsection (1) of Section 49 of the Interim Constitution Act, 1974 reads as following:- "49. The Services.--- (1) Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated by law." (Underlining is ours)
' The legislature by deriving the powers from this section has already made and enforced, The Azad Jammu and Kashmir Civil Servants Act, 1976, (hereafter to be referred as Act) which regulates the appointment and terms and conditions of service of civil servants. The transfer is one of the terms and conditions of service. Section 3 of the Civil Servant Act, speaks that the terms and conditions of service of a civil servant shall be as provided in this Act and the Rules made thereunder. Section 9 of the Act, which deals with the posting and transfer speaks as following:- -- "9. Posting and transfer.--- Every Civil servant shall be liable to serve anywhere within or outside Azad Jammu and Kashmir in any post under the Government or the Council or the Federal Government of Pakistan or any Provincial Government of Pakistan, or a local authority or a Corporation or a body set up or established by any such Government: [or as an officer on special duty whenever required as such."] Provided that, where a Civil Servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
' Whereas Rules 9 and 10 of The Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 which deals with appointment by promotion, transfer or deputation, for convenience is reproduced as following:--- "9. Appointment by promotion or transfer.--- (1) Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate committee or board.
(2) Promotion including pro forma promotion shall not be claimed as a matter of right by any civil servant.
10. Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the selection authority."
' The combined comparison and analysis of these statutory provisions connotes that these are of general nature and there is no express provision dealing with the period/tenure, or the criteria, or the manner and mode for exercising the powers of transfer. It appears that for certain reasons the Government issued a notification on 19-1-2000 for prescribing policy. Subsequently in furtherance of this notification a policy was formulated in the year 2001, which is reproduced as under:--- {{ URDU TEXT }} ' This policy policy held field for some time, however, the cabinet in a meeting held on 5-3-2009, cancelled all the previous transfer policies, the Departmental authorities and all concerned were directed for formulation of a new comprehensive transfer policy keeping in view the Departments' need and requirement. Till the formulation of the new transfer policy, the competent authorities were authorized. To make transfer/posting within their jurisdiction by using their discretion in a judicious manner. In furtherance of the Cabinet decision a notification dated 6-3-2009 was issued which is reproduced as following::-- "NOTIFICATION No,Admin(CS)/62/2009. The President of Azad Jammu & Kashmir has been pleased to accord approval to the followings:---
(i) All previous Transfer Policies (issued by different departments) are hereby cancelled;
(ii) New Comprehensive Transfer Policy shall be made in due course. Till the formulation of New Policy, all the Transfers/ Postings shall be made by the Competent Authorities on their discretion in judicious manner.
' It appears that the Authorities failed to formulate the policy till to date. The Chief Executive, Prime Minister of the Azad Jammu and Kashmir has also emphasized for formulation of policy through a directive issued on 21-8-2010 in the following words:- "Intra/inter Departmental Transfers.--- There should be a clear intra departments and inter departments transfers policy based on fulfillment of required merit, experience, efficiency, suitability, etc. The normal transfer period except in exceptional cases/ requirements should be three years."
' If appears that the Government, for Education Department, formulated a special policy, which was notified on 1st April 2008, which reads under:--- ' It is also brought on record that the Government for Education Department while relaxing the prohibition on transfer, imposed the following conditions vide notification dated 13-12-2010:- {{ urdu text }}
18. In the light of the above referred and reproduced legal instruments, it is clear that at present no transfer policy is holding the field, however, some guidelines are available. For Education Department, in Government Notification dated 13-12-2010. The conditions including avoidance of unnecessary transfers have been rightly imposed. The above stated state of affairs clearly speaks that the Executive is conscience of the fact that a comprehensive transfer policy is required. It is regrettable that the concerned have failed to formulate the transfer policy in compliance of the cabinet decision despite passage of a considerable time.
19. All the laws whether Act or Rule or Policy, are subject to the provisions and spirit of the Interim Constitution Act, 1974. The foremost and the fundamental constitutional guarantee is the equality and equal treatment before law which can only be safeguarded if the powers are exercised in a judicious manner by exclusion of arbitrariness, discrimination, nepotism, favour it is and free from all types of interference or pressure whether political, social or trade unionism. The purpose of transfer should be to achieve the best results from a civil servant for the job he is assigned and this purpose can only be achieved by equal treatment and legitimate facilitation for peaceful, honest and efficient performance. The equal treatment and equality before law is the basic principle on which the justice rests under law. There is plethora of judgments on this point. This Court has already handed down an elaborate judgment in famous civil servants regularization of ad hoc appointments case, 1994 SCR 341, in which it has been held that the right No,15, the equal treatment guaranteed by the constitution Act, is the most fundamental right. In, Inamur Rehman's case (1992 SCMR 563) the apex Court of Pakistan, on the subject, equality before law reproduced the following extracts from Corpus Juris Secundum, Volum 16A:--- "Equal protection to all is the basic principle on which rests justice under law. By virtue of a clause in the Fourteenth Amendment of the Constitution of the United States expressly forbidding it to do so, State may not deny to any person within its jurisdiction the equal protection of the laws. This clause is a pledge of equal protection of laws or protection of equal laws; and it means, and is guaranty, that all persons subjected to state legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in liabilities imposed; but it guarantees only the protection enjoyed by other persons or classes in the same place and under like circumstances, in pursuit of their lawful occupations, and it is not a guaranty of equality of operations or application of state legislation on all citizens of a State."
' In this regard reference may also be made to the cases reported as 1990 CLC 8, 1991 SCMR 1041, PLD 1976 Lah, 1115 and 1990 MLD 1428.
20. The fundamental constitutional provision dealing with the powers of legislation in relation to terms and conditions of service is the above reproduced section 49 of the Interim Constitution Act..
The underlined comprehensive term "regulated by law" used in this provision, connotes that in relation to terms and conditions of civil servants the making of law and framing of rules is the requirement and spirit of constitution. The word "regulate" is of much importance. Although this word has not been defined in the Constitution. The dictionary meaning of this word is;--- "(i) to control or adjust the machine so that it functions correctly;
(ii) to control things etc. According to rules;
(iii) to make regulation."
' Thus, the decision taken by Cabinet for framing a comprehensive transfer policy and in furtherance of it the directive issued by the Chief Executive/Prime Minster, appears to be consistent with the constitutional requirement and spirit. The cumulative analysis of the above referred documents provide some guidelines for formulation of uniform transfer policy, for all the civil servants, having the following general characteristics.:---
(i) There must be some minimum tenure fixed for posting at a one station by transfer so that the civil servant must have some sense of security and certainty.
(ii) The policy should contain mechanism for exercise of powers in judicious manners to exclude the chance of misuse of the powers in an arbitrary discriminatory manner or as a result of favoritism, nepotism, victimization or under political, social or trade union's pressure and influence; and
(iii) The efficiency, suitability, experience, honesty and satisfactory performance should also be the factors for consideration, while making transfer and posting.
21. Ordinarily in every walk of life we claim the parity with the Province of Punjab. It will be also useful to be benefited from the policy laid down by the Government of Punjab in regard of posting and transfer or civil servants issued under the memorandum No,S.O.(Coord.)1-13/79, which reads as following:--- "No transfers shall normally be made except under the following circumstances:--
(a) On completion of tenure/ prescribed stay at hard stations.
(b) On completion of 3 years' stay at a particular station in other cases.
(c) On compassionate grounds.
(d) On disciplinary grounds.
(e) On promotion/demotion.
(f) Administrative requirements.
(g) No officer, Official shall be transferred, who is under special report nor shall be earned leave be granted to him except by the order of the Authority, which placed him under such report.
' Transfer before the completion of the period of tenure should be ordered only if the competent Authority is satisfied that:--
(a) The transfer involves appointment to higher service or a post carrying higher emoluments.
(b) The transfer is being made to a post for which the officer has special aptitude, qualifications or experience.
(c) The officer has proved unsuitable in the post from which he is being transferred.
(d) The officer holding a lien on the post, has become available.
(e) The transfer is on compassionate grounds.
' No request for transfer of an officer on complaint or unfitness to hold a post shall be entertained unless the officer has spent at least three months on his present assignment and a special report has been initiated on his performance. The spirit behind the transfer policy was stated in the above policy decision, as follows:-- "The policy of posting should be designed so as to ensure stability in appointments to encourage professionalism by recognizing and promoting merit, while providing an all-round experience to the individual officers. In order to avoid stagnation in performance and ideas and to provide dynamic administration, repeated appointments to the same type of job need to be avoided unless in some special cases, specialization is desired. The transfer policy is to be guided foremost by the service of public interest and the individual's interest is to be integrated therewith as far as possible for ensuring greater harmony and efficiency. Important assignments need to be filled in by those officers, who have good record of service so that they may develop their talent and may make maximum contribution to the public welfare. In cases, where officers show certain weaknesses in professional and character traits, they may be so positioned as to be amendable to direction, advice and guidance."
22. It has also been noticed that the majority of cases of transfers the civil servants of Education Department are involved. Most of such cases are outcome of the desire of civil servants to be posted by transfer within urban areas. Thus it is a permanent phenomenon of the Education Department which requires special attention of the Executive Authorities. It will be appropriate for resolution of this crucial issue that a list of civil servants serving in urban areas indicating their period of stay must be prepared to meet the eventuality of the adjustment within urban or municipal areas. The competent authorities must follow list according to the order of longest stay in the urban areas, while transferring from the urban Or rural areas.
23. Another aspect of the matter as argued, is whether in absence of any prescribed policy the competent authorities are at liberty and have got unguided and uncontrolled powers of posting and transfer. As we have already discussed hereinabove that although presently no prescribed transfer policy is holding the field, however, in the notification issued for cancellation of the transfer policies as well as the directive of the Prime Minister, some guideline has been provided. Even otherwise according to our considered opinion in absence of any prescribed policy all the authorities are under constitutional obligation to exercise their powers in judicious manner by upholding the principle of equality before law. According to Section 3, of the Interim Constitution Act, 1974, Islam is the state religion of the Azad Jammu and Kashmir, whereas under the provisions of subsection (5) of section 31, of the Interim Constitution Act, there can be no law repugnant to the teaching and the requirement of Islam as set out in the Holy Quran and Sunnah. Thus, in absence of prescribed policy all the authorities are under obligation to exercise their powers according to the teachings of Islam. The powers vested in the authorities are the trust bestowed upon them by Allah Almighty. In Verse No,58 of Sura-e-Nisa, the Almighty Allah has commanded in the following words:- {{ARABIC TEXT}} (Translation) "Verily! Allah commands that you should render back the trusts to those to whom they are due; and when you judge between men, that you judge with justice. Verily how excellent is the teaching which He (Allah) gives you! Truly, Allah is Ever All-Hearer, All-Seer."
' Being a Muslim everyone is accountable before Almighty Allah from whom none of the act of any person is secret. In Nusrat Baig Mirza's case (PLD 1992 Federal Shariat Court 412) while attending this important aspect it is held by the Federal Shariat Court that the Shariah, that is the injunction of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet is the supreme law of Pakistan. Some relevant paras of the scholarly judgment of the Federal Shariat Court are reproduced as following:--- "10. Now, adverting to the injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (P.B.U.H.) we may first refer to a number of verses of the Holy Qur'an which pertain to the question before us. The Holy Qur'an says- {{ARABIC TEXT}} (Allah doth command you to render back your trusts to those to whom they are.( Al-Nisa 4:58) {{ARABIC TEXT}} (Ye that believe! Betray not trust of Allah and Apostle, nor misappropriate knowingly things entrusted to you ) (Al-Anfal 8:28).
11. .................
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17. Abu Dharr narrated that he asked the Holy Prophet (P.B.U.H.) {{ARABIC TEXT}} (Will you not appoint me to a public office? He stroked my shoulder with his hand and said: Abu Dharr Thou art weak and authority is a trust, and on the day of judgment it is a cause of humiliation and repentance except for one who fulfils its obligation and properly discharges the duties attendant thereupon. (Sahih, Muslim (Kitab al-Ilmarah), Vol. 3 p. 1457, Beirut Edn. Eng. Translation by Abdul Hamed Siddique, Vol.II, P.1015 pub. Sh. Muhammad Ashraf, Lahore)'.
18. Hazrat Abu Bakr narrated that the Holy Prophet (P.B.U.H.) said: {{ARABIC TEXT}}
19. (Every person who has been given some authority of the Muslim community and he appoints someone out of favour, he will be cursed by Allah and all of his good actions shall be turned down up-accepted). (Musnad, al-Imam Ahmed bin Hambal, Vol.1, p.6).
20. Lastly, the following Hadith of the Holy Prophet (P.B.U.H.) is narrated:- {{ARABIC TEXT}}
21. (When honesty is lost, then wait for the Hour (dooms' day). He asked: How will that be lost. The prophet said: when the power or authority comes in the hands of unfit persons, then wait for the Hour (dooms' day).
' Admittedly, a post or an office is a trust in the, hands of the appointing authority as is enshrined in the Objectives Resolution which has now been made substantive part of the Constitution wherein it has been, inter alia, 'provided that "Sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits. Prescribed by Him is a sacred trust."
22. Political power is held in trust (amanah) from the Almighty Allah and "thbse from amongst you" who have been entrusted with authority( ) must exercise their authority or power (a sacred trust) as manifested in His various Commandments and Ordinances.
23. It appears from the study of the Holy Qur'an and Sunnah of the Holy Prophet (P.B.U.H.) that Islam abhors against discrimination or preference between man and man, except for their piety, ability and capability, mentally as well as physically.
24. The Holy Qur'an has fixed a parameter of the selection of eligible person' for getting appointments. The Holy Qur'an says:-- {{ARABIC TEXT}} (Truly the best of men for thee to employ is the man who is strong and trustworthy). (Al-Qasas 28:26).
23. Imam Ibn Talmiyyah in his well-known work "4-C.74J1 4.4,..*/1" (Urdu Tr.) Karachi, pp. 83-84 has stated that:- {{ARABIC TEXT}}
24. The Holy Qur'an commands us to render back the trusts to those whom they are due. It further commands that when you judge between man and man it is to be judged with justice. There is a consensus among the commentators of the Holy Qur'an that the word (4..*A.41) (trust) used in Verse 58 of Surah Al-Nisa is not to be given a restricted meaning and any sort of trust comes under its purview. Although the said verse was revealed in connection with giving back the keys of Ka'ba to Bani Talha but for the generality of the word ( ''..-441) in the verse, this Commandment applies to all the Trusts (-5-,741:) and all persons for giving them to whom they are due. It is so stated in Tafsir Mazhari by Sanaullha Panipati, Vol.II page 148"
24. From the above reproduced paras of the scholarly judgment of the Federal Shariat Court there remains no doubt that every authority is under the constitutional obligation while exercising powers to be mindful of the fact that the authority and powers vested in him, is a trust bestowed upon him by Almighty Allah and he has to discharge his duties strictly in compliance of the command of Almighty Allah by rendering back the trust to Whom they are due, which means that there is no room of any arbitrariness, discrimination, favoritism, nepotism or acceptance of any type of influence or pressure.
25. The Courts have also laid down the principle of law that in case of vacuum on question of law left by statutory silence, the principles of Islamic common laws are applicable. The Supreme Court of Pakistan in Fazal Ghafoor's case (1993 SCMR 1073), in this regard observed that "where there is a vacuum on a question of law left by statutory silence, the prevailing mode having full Constitutional support, would be that of Islamic common law". Therefore, even in absence of any prescribed policy the competent authorities are not at liberty to issue orders according to their free will rather'they will have to abide by the principle of Islamic common laws.
26. In many cases brought before the Court, the complaint of political intervention in civil services matters has also been brought on record. According to the system of the Government, bureaucracy has got a very important role. The Supreme Court of Pakistan in Zahid Akhtar's case (PLD 1995 SC 530) while attending this aspect has observed:-- "We need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as in charge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the, nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action,"
' Without adding anything from ourselves, we reaffirm and re-enforce the thought provoking observations of the apex Court of Pakistan. It is expected that the bureaucracy for rebuilding its dignity and ' public confidence will give due importance to these observations.
27. The perusal of directive of the Prime Minister and the minutes of the meeting also conveys the intention of the Executive that the formulation of comprehensive uniform policy is seriously required. Therefore, we do not feel any need to impose anything from our side, as this crucial issue has been already attended by the Executive and the concerned, who have finally decided for formulation of the policy. The question of posting by transfer has been remained under discussion in many cases and this Court always stressed for formulation of uniform transfer policy for all the Government employees irrespective of their political background. In Kausar Perveen's case 2002 PLC (C.S.) 1385 in this regard the Court recorded its observation as following:--- "It. Is indeed correct that it is the prerogative of the Government to transfer any civil servant from one place to another but at the same time it is desirable that the Government and the concerned department should also take into consideration a uniform policy for all the Government employees irrespective of their political background."
In Raja Manzoor Khan's case (2004 SCR 35) it was observed that the transfer and posting is within the jurisdictional competence of the concerned authorities. The Courts can only intervene if the transfer and posting made by the Departmental Authority is in colorable exercise of jurisdiction and in disregard of law and policy of the Government having the force of law.
28. The above discussed and referred policies, directive and Government notifications issued from time to time covers almost the eventualities which normally arise in the matter of posting and transfer. Especially in relation to Education Department the transfer policy of 1st April, 2008 and regarding the rest of the Departments the transfer policy of the Punjab Government hereinabove reproduced appears to be comprehensive enough. While framing new policy the ingredients and contents of these should be seriously considered. Therefore, in the above stated background we are constrained to direct all the concerned to, immediately carryout the cabinet decision and the directive of the Prime Minster formulate the transfer policy expeditiously, in the light of the hereinabove guidelines stated in paras 20 and 21 and specially with relation to the Educating Department the policy notified on 1st April, 2008. However, till the formulation and enforcement of the proposed new policy, the concerned competent authorities while exercising their powers in relation to posting by transfer, will be under legal obligation to follow the above referred guidelines and the observation of the Court incorporated in paras Nos.24 and 25.
29. Now we would like to deal the appeals separately on their merits in the light of the above stated guidelines. In Appeal No,157 of 2010, the matter relates to posting and, transfer of the appellant and respondent No,6. The appellant has been posted by transfer from Female Vocational School Rerha and posted in place of respondent No,6 in Female Vocational School Bagh, which is just at distance of ten minutes. The respondent, as has been observed by the Service Tribunal, is suffering from epilepsy. In the light of the peculiar facts of the case, the transfer appears to be justified, therefore, finding no force this appeal stands dismissed.
30. In Appeal No,12 of 2011 titled Mst. Robina Tabassam v. Azad Govt. And others, the departmental order dated 11-12-2010 was challenged on the ground that respondent No,6 is under suspension due to misconduct and the order is issued in a discriminatory manner. The learned Service Tribunal dismissed the appeal on the ground that the appellant has failed to prove the fact of suspension and even otherwise there is no proof that the alleged charge of misconduct has been proved. It is also brought on record that the appellant has been transferred after a long period of 10 years. The Service Tribunal has rightly observed that the appellant has not brought on record anything that how her terms and conditions of service has been adversely affected by the impugned transfer order rather she has only raised objection regarding the alleged misconduct of the respondent.
Therefore, we do not find any illegality in the impugned order of the Service Tribunal, hence the same is upheld.
31. In Appeal No,23 of 2011 titled Tanveer Hussain Gillani v. Azad Government and others, the controversy among the contestant parties relates to appointment by transfer as District Education Officer Secondary School Hattian. The appellant claims that he is senior to respondent No,4.
Moreover, he is the first District Education Officer of District Hattian. The post is of male cadre and according to principle of law laid down by this Court, a female cannot be appointed against such post. Moreover, through the departmental order the appellant has been posted by transfer in a Female Education, which is also violation of the dictum of the Supreme Court. He further claimed that, the impugned transfer order issued just after a period of ten months' service. The appellant also claimed that he has, almost, completed his service career and is near to retirement, whereas the claim of respondent No,4 is that she is the permanent resident of Lawasi and was serving in District Bagh, being a female, she is entitled to be accommodated at the station near to her home.
Moreover, she claimed that the post of D.E.O. Is not reserved for male and a female can also be appointed against the- post. After taking into consideration the overall facts and material brought on record, we are of the opinion that the impugned transfer notification has been issued without any valid reason, therefore, the transfer notification of the appellant dated 27-10-2010 stands vacated. Consequently the appellant's appeal is accepted. However, the departmental authorities are directed to facilitate respondent No,4 by posting her at any suitable station/post near to her home station.
32. The controversy in Appeal No,29 of 2011 relates to posting by transfer of the Junior Female Teacheresses. The conclusion drawn by the Service Tribunal in para 5 of the impugned judgment, appears to be consistent with the principle of law and justice. The impugned departmental order has been issued in an arbitrary manner without any justification, thus the Service Tribunal has rightly accepted the appeal by setting at naught the impugned departmental order. Thus this appeal is without any substance, which is dismissed.
33. In Appeal No,191 of 2010 one of us (Mr. Justice Kh. Attaullah Chak) remained counsel for the appellant, therefore, for the ends of justice it is deemed proper that decision of this appeal on merit shall be made after reconstitution of bench and rehearing of the parties.
34. The learned Service Tribunal, in some cases, has opined that during the pendency of appeals the civil servants have gained sufficient time to remain posted at a station, thus appeals become infructuous. In our opinion such practice is not consistent with the principle of law and justice. The appeals relating to posting and transfer should be decided on merits and not merely on the consideration of period consumed in disposal of the appeals. For the ends of justice, except extraordinary compelling reason, it is desired that the appeals relating to transfer of civil servants should be expeditiously disposed of by the Service Tribunal. It will be an ideal situation if the learned Service Tribunal be able to dispose of such appeal within three months' time.