Mohammad Azam Khan, C.J.- The above titled appeal by leave of the Court arises out of an order passed by the Service Tribunal dated 12th April, 2016 in the following circumstances:-
2. The appellant was serving as Sub-Divisional Officer in the Public Works and Health Engineering Department, Rawalakot. A proposal was prepared by the Department on 4th March, 2016. In the light of said proposal, he was to be transferred in place of Muhammad Aftab Kiani, respondent No.9, herein, in the Highways Division Muzaffarabad and respondent No.1, Qazi Irshad Hussain who was an officiating Sub-Divisional Officer, was proposed to be transferred from Highways Division Hattian Bala to Highways Division, Rawalakot in place of one Shabir Ahmed.
Respondent No.1, challenged the said order by way of appeal in the Service Tribunal. After necessary proceedings, the Service Tribunal admitted the appeal for regular hearing on 7th March, 2016 and the transfer notification was suspended subject to the objections by the other party. After hearing the counsel for the parties, the Service Tribunal on 12th April, 2015 ordered that the suspension order shall remain intact till disposal of the writ petition filed by one Shabir Ahmed, in the High Court. This order is subject of the present appeal.
3. At the time of hearing the arguments on the stay order application we summoned the petition for leave to appeal from the office, converted the same into appeal and heard the arguments on the appeal.
4. Mr. Abdul Rashid Abbasi, Advocate, counsel for the appellant, submitted that the Service Tribunal has suspended the order on the ground that the authority for appointment of the Sub- Divisional Officer is the Minister and order has been passed without the approval of the Minister.
The learned counsel referred to annexure "PH" finding place at page 28 of the paper book and argued that the Secretary Works submitted the proposal and the Minister concerned accorded the approval. The order has been issued after approval of the Minister. The learned counsel further submitted that the Service Tribunal has ordered that the suspension order shall remain operative till disposal of the writ petition in the High Court. The order is bad in law.
5. Sardar Muhammad Habib Zia, Advocate, while representing, respondent No.1, Qazi Irshad Hussain, submitted that it is correct that the order has been issued after approval of the Minister, but the order has not been issued according to the proposal. It has been issued in contravention of the proposal. As such, the order is not maintainable. He submitted that the order to the extent of Qazi Irshad Hussain has validly been passed.
6. We have heard the learned counsel for the parties and perused the record. The following proposal was submitted for transfer of the Sub-Divisional Officers on 4th March, 2016:- {{URDU TEXT}} On the said proposal the concerned Minister accorded the approval and the order was issued accordingly on 4th March, 2016, expect to the extent of Shabir Ahmed, Officiating Sub-Divisional Officer, on the ground that he has got stay order from the High Court. But the perusal of the order dated 4th March, 2016, finding place at page No.27 of the paper book reveals that order to the extent of Mr. Muhammad Shafique Abbasi, has been issued in accordance with the proposal, while order to the extent of Qazi Muhammad Irshad is not in accordance with the proposal, therefore, we accept the appeal set-aside the order passed by the Service Tribunal. The Service Tribunal is directed to pass fresh order after hearing the counsel for the parties and considering the proposal submitted and the order passed on 4th March, 2016. It is further observed that the Service Tribunal has no authority to pass such stay order that it shall remain operative till disposal of the writ petition in the High Court. The Service Tribunal is directed to pass order while considering the relevant law.
With the above observation the appeal is accepted. There will be no order as to costs.