' ZAHEER-UD-DIN KAKAR (CHAIRMAN).--- Through this single judgment, we intend to dispose of Service Appeals Nos.53, 63, 78, 79 and 86 of 2015 as identical question of law and facts are involved in above quoted service appeals.
2. The appellants being aggrieved of Notification No, SO-IV(H)4- 6/2014/4235-350, dated 12-2-2015, whereby, the appellant (Dr. Akhtar Bano) in S.A. No,53 of 2015 has been transferred from SPH, Quetta to DHQ Hospital Killa Abdullah, (Dr. Nazreen Yaqoob) in S.A. No,63 of 2015 has been transferred from BMCH Quetta to DHQ Hospital Panjgur, (Dr. Sara Jaffar) in S.A. No,78 of 2015 has been transferred from PH, Quetta to DHQ, Hospital, Musa Khail, (Dr. Kishwar Rehman) in S.A. No,79 of 2015 has been transferred from BMCH, Quetta to DHQ, Hospital Panjgur (Dr. Qurat-ul-Aine) in S.A. No,86 of 2015 has been transferred from SPHQ, Quetta to DHQ, Hospital, Naseerabad, preferred above titled appeals with contention that the impugned Notification has been made in violation of Wedlock Policy of Government of Balochistan as well as against the Article 35 of the Constitution of Islamic Republic of Pakistan, because their husbands are posted in various Government department in Quetta and they have been transferred to far-flung districts of Balochistan. Finally, they (appellants), have prayed for setting aside of impugned Notification to their extent.
3. The respondents contested the appeals on legal and factual grounds by filing their parawise comments.
4. We have heard learned counsel for the appellants as well as the learned Additional Advocate- General, Balochistan and perused the record with their assistance.
5. There is no cavil with the preposition that the question of transfer/posting under section 10 of the Balochistan Civil Servants Act, 1974, falls within the domain of the competent authority but it is equally important to note that such discretion must not be exercised in an arbitrarily or fanciful manner. Such discretion has to be exercised judiciously and in accordance with settled norms of justice equaity and fair play. The Government was required/duty bound that while exercising such discretion, requirement of job, nature of duties, requisites and capabilities must be considered and there should be no extraneous consideration.
6. It is pertinent to mention here that the Government of Balochistan has formulated a comprehensive policy by issuance of a Circular No,SORI-5(59)S&GAD5241-5341, dated 2-2-1998, to facilitate posting of serving husbands/wives at same station. Said circular, initially applicable to Government servants only, was followed by an another Circular No,SOR1-5(59)S&GAD2069-2170 dated 12-8-2006, in pursuance whereof the application of aforesaid "Wedlock Policy" has been extended to the cases, either of the spouses is employed in private sector. This policy further provided that keeping in view the socio economic problems and hardship faced by the husbands and wives in Government service due to posting at different stations of duty, the Government of Balochistan through above circulars issued instructions/ guidelines to facilitate posting of husbands and wives at same station. The impugned Notification is violative of the Wedlock. Policy introduced through above circulars to the extent of appellants.
7. It is imperative to mention here that the Government of Balochistan issued aforesaid Wedlock Policy, and it is the responsibility of the competent authority to implement and adhere to such policy/ guidelines; its implementation cannot be left at the whims and volition of competent authority. If husband in Government department is posted at one city and his wife is posted in another Government department is working in a different city, it is definitely going to cause mental distress to both of them with the consequences which are not only injurious to them and public exchequer but may also impair their efficiency in discharge of official functions. In this regard we are fortified by the following judgments:---
(i) 2003 PLC (C.S.) 1322 Lahore, (ii) 2004 PLC (C.S.) 622 Lahore, (iii) 2009 PLC (C.S.) 580 Lahore; (iv)
2011 PLC (C.S.) 592 Lahore; (v) 2012 PLC (C.S.) 665 Lahore; (vi) 2014 PLC (C.S.) 1032 Sindh.
8. Furthermore, impugned Notification dated 12-2-2015, (to the extent of appellants) is also violative of the Article 35 of the Constitution of Islamic Republic of Pakistan, which is reproduced here in below:--- "35 Protection of Family, etc. ' The state shall protect the marriage the family, the mother and the child."
9. The said principle of policy as enshrined in the Constitution, enjoins the State/respondents to protect the marriage, the family, the mother and the child to secure the wellbeing of the people.
Transfer and posting of appellants to a far off places have caused irreparable hardship for their families in establishing home and life together.
10. The impugned Notification (to the extent of appellants), is also negation of Article 9 of the Constitution which guarantees the right of security of persons. Word "life" occurring in Article 9 of the Constitution has been interpreted by the Hon'ble superior courts in numerous cases reported in PLD 2005 SC 193 + PLD 2009 Lahore 22 + PLD 1994 SC 693 + 1998 CLC 1099 + 1996 CLC 1785 by lying down principle that "life does not only means vegetative or animal life ... It would include all such rights which are necessary for leading proper and comfortable life, worthy of citizens of a free country .... It includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally .... It covers all facets of human existence.
11. For the foregoing reasons, the impugned Notification dated 12-2-2015, is set aside only to the extent of appellants, which is violative of Wedlock Policy as well as violative of Article 35 of the Constitution of the Islamic Republic of Pakistan (to the extent of appellants). Copy of this judgment be sent to respondents for information. Files after completion be consigned to record .