' MUHAMMAD AZAM KHAN, C.J.--- The captioned appeal with the leave of the Court arises out of the judgment of the Service Tribunal dated 17th October, 2011, whereby Service Appeal No,22 of 2011 filed by respondent No,6 herein has been accepted.
2. Necessary facts for the disposal of instant appeal are that respondent No,6 herein filed Service Appeal No,22 on 8th January, 2011 in the Service Tribunal, whereby she challenged the order issued on 7th January, 2011 through which the order dated 3-1-2011 was cancelled. The Service Tribunal accepted the appeal and set aside the transfer order vide impugned judgment on 17th October, 2011.
3. Kh. Muhammad Maqbool War, the learned counsel for the appellant, argued that the judgment of the Service Tribunal is not maintainable. The appellant is a disabled lady serving as Junior Teacheress. She is a chronic heart patient and unable to travel. She is suffering from serious heart ailment and cannot serve at Govt. Girls Middle School Bugna-Khairabad because travelling by foot is involved to reach the said station. He referred to medical reports and clinical tests conducted by Brig. F.S.K. Bhatti, Gastro-Intrologist C.M.H. Rawalpindi and medical history sheet of C.M.H.
Muzaffarabad. He contended that the transfer was politically motivated. The husband of respondent No,6 is an Ex-Councillor, who got issued transfer order dated 3-1-2011 on political influence. He referred to annexure A-5/1, the application moved by the husband of respondent No,6, whereby the Prime Minister recommended to Divisional Director Schools for her transfer at nearest station on the ground of her ill health. The transfer order was rightly cancelled on 7-1-2011, but the Service Tribunal misconstrued the law.
4. While controverting the arguments, Mr. Sadaqat Hussain Raja, the learned counsel for respondent No,6, argued that the judgment of the Service Tribunal is perfectly legal. The appellant remained posted for a period of eleven years within the municipal area, while respondent No,6 remained posted out of city for nine years. The respondent is resident of Muzaffarabad city. She has every right to serve within the municipal area. The learned counsel requested for dismissal of appeal.
5. Mr. Mushtaq Ahmed Janjua, the learned counsel for respondent No,5, supported the arguments of Mr. Sadaqat Hussain Raja, the learned counsel for respondent No,6.
6. We have heard the learned counsel for the parties and perused the record.
7. It is admitted position that both the appellant and respondent No,6 are Junior Teacheresses.
Under the Government Notification dated 13th December, 2005, Junior Teachers/Teacheresses are to be appointed from and to be posted in their respective Constituencies. The Service Tribunal has delivered the impugned judgment in the light of a previous judgment of this Court titled Deputy Inspector General of Police and another v. Muhammad Yaseen and another (2008 SCR 611). The Service Tribunal has drawn a conclusion that this Court in the referred judgment has laid down an inflexible rule that an employee of lower grade cannot be transferred from one district to another.
Under section 9 of the AJ&K Civil Servants Act, 1976, a civil servant is liable to be posted anywhere within or outside Azad Jammu and Kashmir wherever he is transferred under the Government. In section 9, the terms and conditions of service of a civil servant to the extent of pay are protected which shall not be less favourable than those he is entitled to, if the transferee is required to serve on a post outside his service or cadre and the other exception is that the powers must be exercised fairly and impartially. In a case reported as Kausar Perveen v. Azad Government and others 2002 PLC (C.S.) 1385 by holding as under:--- "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 a case reported as lqbal Begum v. Azad Government and others 2003 PLC (C.S.) 1041 it was observed as under:--- Under section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976, the competent authority is vested with the jurisdiction to pass appropriate orders of transfer and posting of civil servants subordinate to it. Under this provision of law no civil servant can claim posting at a particular place as of right. No doubt the Government has issued instructions that a civil servant shall retain his posting at a particular place at least fora period of two years however if any person is transferred before the expiry of two years stay at a particular station by the competent authority, such transfer order cannot be termed void ab initio merely that it has been passed in violation of the Government policy. The concerned civil servant, therefore, cannot disobey the transfer order by his/her conduct. The aggrieved civil servant has to seek the remedy from the concerned forum against transfer order in accordance with the prescribed method."
' The observation is in accordance with the spirit of section 9 of the AJ&K Civil Servants Act, 1976.
' In a case reported as Mst. Shaista Idrees v. Mst. Gul Shireen and others (2006 SCR 294) it was observed 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 any where 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 was further observed in the above referred case as under:--- ' A combined reading of these notification read with section 9 of the Civil Servants Act, 1976, makes it apparently clear that:
(a) The posting and transfer of any employee of Azad Jammu and Kashmir Government is prerogative of the Government but the authority so conferred is not absolute as the same has to be exercised keeping in view the above referred transfer policy and the Courts can cancel or strike down any order of transfer which is based on political consideration or stems from mala fide.
(b) Employees of the Education Department, Health Services and Animal Husbandry from grade 1 to 15 are to be posted nearer to the place of their residence as for as possible to extend possible convenience to them.
(c) A civil servant posted and transferred at a particular place has to remain there at least for a period of two years.
(d) The policy referred to in different notifications which are basically based on a decision taken in a Cabinet meeting. although create a right, is not absolute as well and deviation is allowed by relaxing the policy in suitable cases."
' While dealing with the scope of section 9 of the aforesaid Act, this Court observed in the case titled Dr. Muhammad Rafique v. Azad Government and others (2007 SCR 129) (sic) as follows:--- "A detailed study of the case-law reveals that in fact there are only two exceptions to the exercise of powers under section 9 of the Civil Servants Act and although not happily worded; a protection has been extended to a civil servant that his terms and conditions of service to the extent of pay shall not be less favourable if he is required to serve on a post outside his service or cadre and the other exception, which keeping in view the overall functioning of the State in developing countries, is that powers must be exercised fairly and impartially and colourable exercise of authority motivated by political consideration is not allowed."
8. In Deputy Inspector-General of Police and another v.
Muhammad Yaseen and another (2008 SCR 611), relied upon by the Service Tribunal, the judgment was delivered in the circumstances when the Police Constables were transferred outside their districts and they were ordered to receive pay from their respective districts of postings. In particular circumstances it was observed that the wisdom behind the notification dated 3rd December, 1992 is that the departments shall induct residents of particular districts against vacant posts of B-1 to B-4 falling vacant in the said districts and the employees of lower grade shall not be over burdened by posting them outside their districts. It was observed that the same principle be considered for transferring employees of grade B-1 to B-4. It was not held as an absolute rule that the employees of grade B-1 to B-4 cannot be transferred outside their respective districts. Such finding cannot be recorded because it will be in violation of section 9 of the AJ&K Civil Servants Act, 1976, which in unequivocal terms postulates that every civil servant is bound to serve under the Government wherever he is transferred and posted. Our this view finds support from a previous judgment of this Court delivered in Mst. Shaista Idrees's case, referred to above. In the said judgment while dealing with the transfer matter it was observed that the employees of different departments, particularly the Education Department, Health Department and Animal Husbandry Department, serving in B-1 to B-15 are to be posted near the places of their residence as far as possible to extend possible convenience to them.
9. In the present case from the record it appears that the appellant has been transferred from Government Girls High School Lohar Gali after a period of more than 11 years. The finding of the Service Tribunal that on the strength of judgment of this Court, respondent No,6 herein cannot be transferred outside her constituency is not sustainable and is against the provisions of section 9 of the AJ&K Civil Servants Act, 1976 and against the spirit of judgment of this Court delivered in Deputy Inspector General's case, referred to above. However it appears from the record that respondent No,6 remained posted in Govt. Girls Middle School Bugna-Khairabad for a period of three years after which she was transferred to Girls High School Lohar Gali which order was cancelled on 7th January, 2011. The transfer order of the appellant was issued after a period of 11 years which was illegally cancelled.
10. We have also considered the argument of the counsel for the parties that the transfer order and cancellation order have been issued under the political influence. Initially the transfer order appears to have been issued on the application moved by the husband of respondent No,6, who is Ex-Councillor, Ward No,11, Muzaffarabad City, and then cancellation order which has been issued without any justification. It appears that both the parties have been exerting political influence for issuance and cancellation of transfer orders.
10. We are aware of the fact that a large number of population residing in cities is educated and particularly the womenfolk after completing education are engaged in teaching profession. It is a fact that the educational institutions are not only situated in the cities and municipal areas but in rural areas as well. Normally the school teachers, particularly lady school teachers who hail from urban areas, want to serve in the schools, which are situated within municipal limits. No one is ready to serve in the schools situated in rural areas. If every school teacher is appointed in the schools within urban areas, then who will serve in the educational institutions of rural areas. This creates a hardship for the authorities of the Education Department. This Court in a case titled Mst.
Sabia Aziz v. Director Technical Education and 5 others 2012 PLC (C.S.) 538 has suggested the Government for formulating a transfer policy for school teachers/teacheresses and also suggested the mode of transferring the lady teacheresses who are residing in municipal limits or outside the municipal limits. Despite the lapse of a period of more than seven months the Government has not formulated any transfer policy.
11. In the present case it is proved from the record that the appellant remained posted at Government Girls High School Lohar Gali for a period of 11 years. The medical certificates attached with the record do not suggest that the appellant is posted against a post of disabled teacher or she is permanently disabled from travelling. The transfer order of a school teacher after a period of 11 years is justified. A civil servant has no absolute right to remain at a particular station for an indefinite period. There was no justification for cancellation of transfer order dated 3-1-2011.
12. The appeal has no merit. It is hereby dismissed with no order as to costs. Copy of this judgment shall be sent to Chief Secretary.