' MUHAMMAD AZAM KHAN, C.J.--- Respondent No,1 filed an appeal in the Service Tribunal of Azad Jammu and Kashmir against the notification dated 30th May, 2012 alleging therein, that she is serving as Senior Teacheress in Government Girls Middle School Taie-Khas, Tehsil Hajeera. Vide transfer notification dated 23rd April, 2012, she was transferred from Government Girls High School Dara Sher Khan to Government Girls Middle School Taie Khas and one Naila Bashir was transferred at her place. The said transfer order was cancelled by the Government on 30th May, 2012 without assigning any reason. The respondents filed objections and claimed that the transfer proposal was not initiated by the department. It was initiated by the Minister for AKLASC and Irrigation Department; as such the order is illegal. After necessary proceedings the Service Tribunal accepted the appeal and set aside the notification dated 30th May, 2012, hence this appeal by leave of the Court.
2. Sardar. Muhammad Habib Zia, Advocate, counsel for the appellant, argued that order passed by the Service Tribunal is against the law and not maintainable. The transfer order was passed by the Minister AKLASC and Irrigation Department against the relevant law. It is only the department and the concerned Minister who has powers to issue the transfer order. The summary is to be initiated by the department. The Minister of other department has no power to issue transfer order. He referred to an order passed by this Court in the case titled Nazir Fatima v. Azad Government and others (Civil P.L.A. No,132 of 2009 decided on 3rd August, 2009).
3. Sardar Muhammad Resham Khan, Additional Advocate-General, argued that the order passed by the Service Tribunal is perfectly legal. The Minister for AKLASC and Irrigation Department has passed no transfer order. He only submitted a summary for relexation in the ban imposed by the Government. He has only recommended for relexation in ban.
4. Kh. Muhammad Nasim, Advocate, counsel for respondent No,1, argued that the counsel for the appellant has addressed the arguments against the transfer order dated 23rd April, 2012. The transfer order dated 23rd April, 2012 was not challenged in the appeal before the Service Tribunal.
The said transfer order was kept in abeyance by the authority on the order of the Speaker, Azad Jammu and Kashmir Legislative Assembly. The Speaker, Azad Jammu and Kashmir Legislative Assembly have no authority to order for cancellation of a transfer order. The transfer order has been passed on the ground that the respondent was appointed in the said school for a period of 7 years which is at a distance of 11 kilometers from her place of residence at one side and the appellant was transferred to Dara-Sher-Khan. Her place of residence is only 200 meters from the school. Keeping in view the period of stay in the school the transfer order has been passed in a legal manner and it was illegally cancelled on the direction of Speaker, Azad Jammu and Kashmir Legislative Assembly. The Speaker has categorically ordered for cancellation of the said transfer order. He has no authority to pass such order.
5. We have heard the learned counsel for the parties and perused the record. It appears from the record that the appellant and respondent No,1 are Senior Teachers, serving in the Education Department. The appellant was serving as Senior Teacheress in Girls Middle Schools Taiekhas for a period of more than 10 years and respondent No,1 was serving in Girls High School Dara Sher Khan for more than 7 years. On 12th April, 2012 on a proposal made by Faisal Mumtaz Rathore, Minister for AKLASC and Irrigation Department, the Minister for Education Department passed the order of transfer of appellant and respondent No,l. The proposal made by Faisal Mumtaz Rathore, Minister for AKLASC and Irregation Department is reproduced as under:--- {{URDU TEXT}} ' In compliance of the said order the notification of transfer of the appellant and respondent No,1 was issued on 23rd April, 2012. The notification is reproduced as under:--- {{URDU TEXT}} ' In compliance of the transfer order respondent No,1, submitted her joining report, which was endorsed by the District Education Officer (Female) Poonch, Rawalakot. On 16th May, 2012, on the same day this order of endorsement was cancelled by the District Education Officer (Female)
Rawalakot. It appears from the record that respondent No,1 filed joining report on 17th March, 2012.
She was allowed to join on 17th May, 2012 and assumed the charge of the post on the same date.
There is another document relating to Sardar Ghulam Sadiq Khan, Speaker, Azad Jammu and Kashmir Legislative Assembly on the pad of the Speaker, Legislative Assembly, inquiring that why Naila Bashir has been transferred. For correct decision of the case we deem it necessary to reproduce the said document which is as under:--- {{URDU TEXT}} ' On the order of the Speaker, Azad Jammu and Kashmir Legislative Assembly, the notification of transfer dated 23rd April 2012 was ordered to be kept in abeyance vide notification dated 30th May, 2012. The same is reproduced as under:--- {{URDU TEXT}} ' As has been observed above, the appellant was appointed in Girls Middle School Taie Khas for more than 10 years while respondent No,1 was appointed in Girls Middle School Dara Sher Khan for more than 7 years. Previously there were transfer policies regulating the period of stay. In one policy the period of stay was fixed as 2 years and in the later policy the period of stay was fixed as 3 years, but later on the Azad Jammu and Kashmir Government cancelled all the transfer policies but in cancellation notification it was laid down that all transfer orders be passed judiciously. This Court in a number of cases has held that under section 9 of the Civil Servants Act, the authority has power to transfer a civil servant and every civil servant is bound to serve under the Government inside or out of the Azad Jammu and Kashmir, wherever he is transferred, provided that his terms and conditions of service are not adversely effected. While dealing with the question of transfer in the case titled Mst. Sabia Aziz v. Director Technical Education and 5 others [2011 SCR 545] we have observed, that the Government shall formulate a comprehensive transfer policy and guidelines were also laid down in the said judgment for formulating the policy which has, so far, not been done by the Government as the Additional Advocate-General stated on query by the Court. It was observed as under:- "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 Minister, 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."
' It was further observed as under:--- "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."
' It was further held as under:--- "We are constrained to direct all the concerned to immediately carry out the Cabinet decision and the directive of the Prime Minister, formulate the transfer policy expeditiously, in the light of the hereinabove guidelines stated in paras 20 and 21 and especially with relation to the Education 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."
6. We have also observed that in absence of the transfer policy the authorities are frequently passing transfer orders in an arbitrary manner. Such orders are passed against the spirit of section 9 of the Civil Servants Act. the transfers of school teachers are frequently passed on the orders of Ministers, M.L.As and other high-ups of the Government. The proper procedure for transfer of a teacher is that the process of the transfer has to be initiated from the office of relevant authority and after fulfilling the requirement the order be passed. The proposition came under consideration of this Court in the case titled Naheed Nazir v. Nazir Fatima and others (Civil Miscellaneous No, 197 of 2009, decided on 3-8-2009), it was observed in para No, 5 as under:--- "5. The Service Tribunal admitted the appeal for regular hearing on the ground that the transfer order dated 4-7-2009 appears to be in gross violation of law. A perusal of order reveals that the transfer order has been passed by the Minister for Electricity and not by the Education Department.
The law provides that every civil servant shall be liable to serve anywhere under the Government.
The civil servant has no right to seek transfer or posting of his own choices but at the same it is necessary that transfer order has to be passed by the competent authority. The transfer order of an employee of Education Department shall have to be initiated by the departmental authority.
The Minister for Electricity is not a competent authority for transfer of Assistant Education Officer.
The Minister for Electricity has not only submitted proposal but in fact issued the transfer order as is evident from the wording of the order passed on 5-6-2009. The transfer relates to Education Department, the proposal for transfer is to be initiated by the Education Department and thereafter necessary order has to be passed. This Court in a case titled Abid Hussain v. Ajaib Ali Shah Naqvi and others [Civil Appeal No,117 of 2003, decided on 12-3-2004] it was held that:--- "The transfer order was obtained on a stray application; therefore the Service Tribunal was justified to hold that such orders should have not been enforced through notification. The transfer was recommended by the MLA which was sanctioned by the Prime Minister. The MLA has not business to recommend the transfer of the Government officials. On his recommendations the Prime Minister in colorful exercise of his official authority granted sanction in the following words:- {{URDU TEXT}} In the present case the proposal for Tranter of two teachers was initiated by the Minister for AKLASC and Irrigation Department. The said Minister has no authority to submit a proposal for transfer of a school teacher and the Minister Education cannot act upon the proposal submitted by the Minister of another department and order for transfer. The very proposal submitted by the unconcerned Minister is not a legal one and any order passed on the said proposal by the Minister Education is against the rule of prudence and is not a judicious order.
7. We have also perused the order passed by the Speaker, Azad Jammu and Kashmir Legislative Assembly for cancellation of transfer order. The Speaker Azad Jammu and Kashmir Legislative Assembly in a categorical term has ordered the Secretary Education for cancellation of transfer order on the ground that parents of Naila Bashir are chief supporters of the Speaker Azad Jammu and Kashmir Legislative Assembly. It is sorry state of affairs that the Speaker, Ministers and MLAs in Azad Jammu and Kashmir are frequently passing the orders for transfer of school teachers. The Education Minister and the authorities are issuing transfer orders and suspending the same without initiating the process of transfer from the Department without assigning any reason. We again observe that all the transfer orders be initiated from the concerned Department and reasons be assigned in the proposals of transfers.
8. In the instant case the proposal was submitted by the Minister AKLASC, which has no concern with the Education Department and the Education Department issued transfer orders which was cancelled on the direction of the Speaker, Azad Jammu and Kashmir Legislative Assembly whereby he stated in the order that why Naila Bashir has been transferred, her parents are his chief supporters. Initial transfer was an illegal order, issued on the summary initiated by the Minister AKLASC and subsequently the order impugned was issued on the direction of the Speaker, Azad Jammu and Kashmir Legislative Assembly. The Service Tribunal set aside the impugned order dated 20-5-2012 on the ground that the transfer notification has been issued on the ground of period of stay. We have perused the transfer order. In the transfer order Zaib-unNisa is shown to be posted as Senior Teacheress, Girls High School Darra Sher Khan for a period of more than 7 years and Naila Bashir is shown to have been posted as senior teacheress in Girls Middle School Taie Khas for a period of more than 10 years. Due to the period of stay, the transfer order is a valid one but we deplore the practice of issuing transfer orders in the manner the orders were issued in the instant case.
' The result of the above discussion is that there is no force in the appeal, it is hereby dismissed with no order as to the costs.