Kh. Muhammad Nasim, J. The captioned appeal, by leave of the Court, has been directed against the judgment of the Service Tribunal dated 31.05.2022, whereby the appeal filed by the appellant, herein, has been dismissed.
2. The brief facts of the case are that the appellant, herein, was posted as Extra Assistant Commissioner, Kotli wherefrom, he was transferred and posted as Extra Assistant Commissioner, Poonch and Respondent No. 6, herein, was transferred in place of the appellant vide notification dated 07.12.2021. It is alleged that at the time of issuance of impugned notification the Service Tribunal was not functional, hence; the appellant filed a writ petition before the High Court and obtained the status quo order, however, subsequently the writ petition was dismissed for want of jurisdiction. Thereafter, the appellant filed an appeal before the Service Tribunal on 07.04.2022, while challenging the aforesaid transfer notification. After necessary proceedings, the learned Service Tribunal dismissed the appeal through the impugned judgment dated 31.05.2022, hence, this appeal by leave of the Court.
3. The learned counsel representing the parties were directed to file the writ arguments within a period of one week, which have been duly filed.
4. The stance taken by the appellant in the written arguments is that at the time of issuance of impugned notification the learned Service Tribunal was not functional, hence, the appellant was constrained to file the writ petition before the High Court and procured the status quo order. As soon as the Service Tribunal becomes functional, the appellant filed appeal before the Service Tribunal against the transfer order. Along with the appeal an application was also moved for condonation of delay but the same has not been considered at all. It is further alleged that under Section 14 of the Limitation Act, 1908 the time spent at wrong forum is liable to be condoned but this aspect of the matter has also not been taken into consideration by the learned Service Tribunal. It is further contended that the impugned notification has been issued due to political grudge and in a non judicious manner. The appellant has been made a rolling stone. His transfer has been made within short span of time against the transfer policy. Earlier, he was transferred from District Bhimber to Muzaffarabad and attached in the office of Board of Revenue on 20.05 2021, from there he was transferred of adjusted in Kotli on 28.05.2021 and thereafter the impugned transfer notification has been issued once again on 07.12.2021. In this background, the learned Service Tribunal erred while dismissing the appeal filed by the appellant.
5. On the other hand, the stance taken by the private respondent in the written arguments is that the appellant has challenged the notification dated 07.12.2012 by filing an appeal before the Service Tribunal on 07.04.2022, after a delay of four months. He has failed to satisfactorily explain the delay of each and every day, hence. his appeal has rightly been dismissed by the Service Tribunal. It is further alleged that according to the prevailing transfer policy the appellant cannot claim posting at home station. Even otherwise, under Section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976 a civil servant can be posted anywhere in Azad Jammu and Kashmir. The impugned judgment passed by the Service Tribunal is well reasoned, hence, no interference by this Court is warranted.
6. We have considered the written arguments filed by the learned counsel for the parties and gone through the record. At the very outset, it may be stated here that under Section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975 any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may within ninety days of the communication of such order to him, prefer an appeal to the Service Tribunal. The appellant being aggrieved of final order dated 07.12.2021 was supposed to file an appeal before the Service Tribunal within a period of 90 days but he filed the appeal on 07.04.2022 after delay of four months. It is the settled principle of law that the delay of each and every day has to be explained. Reliance in this regard may be placed on the case reported as Tabasum Ashraf vs. AJ&K Govt. and others [2020 SCR 127]. wherein, it has been held that: "6. Regarding delay, the sole reason advanced by the appellant in paragraph 6 of memo. of appeal filed before the Service Tribunal is that she got knowledge of the impugned notification a few days ago. Even she has not mentioned any exact date of knowledge or source of knowledge. Be that as it may, according to the principle of law enunciated by this Court, any order published in the official gazette shall be deemed communicated to everybody. In this context, reliance may be placed on the case reported as Tariq Javaid vs. Azad Govt. and others [2015 SCR 653] wherein it-has been held that the publication of a notification in the official gazette is sufficient for information of the general public. The word "communication" under in Section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1976 has to be applied and construed according to the facts and circumstances of each case. Where the rules or law require any order to be communicated personally, such order shall be deemed communicated on personal service but where, according to the nature of the order, the rules or law require any order to be published in the official gazette, such order shall be deemed communicated on the date of its publication. According to the celebrated principle of law laid down by this Court in a number of cases, it is the duty of the party to explain delay of each and every day to the satisfaction of the Court but in this case the appellant failed to justify the delay of six months occurred in filing of appeal. In this state of affairs, the learned Service Tribunal has committed no illegality while passing the impugned judgment."
The reason given by the appellant for condonation of delay is that at the time of issuance of impugned notification the Service Tribunal was not functional, hence, the appellant filed a writ petition before the High Court and got issued the status quo order and soon after the Service Tribunal became functional the appeal was filed. However, in our opinion, the appellant cannot be permitted to seek condonation of delay on such a lame excuse. In fact, the Service Tribunal was non- functional due to vacant posts of Chairman and Members, however, the registry offices of the Service Tribunal were open, hence, the proper course for the appellant was to file the appeal before the Service Tribunal within the prescribed period of limitation and thereafter approach the High Court for immediate redressal of his grievance. It has also rightly been observed by the learned Service Tribunal in the impugned judgment that the Service Tribunal was functional on 08.03.2022, whereas, the appeal was filed on 07.04.2022 after a period of one month without any plausible explanation. In this state of affairs, we have no hesitation in holding that the appeal filed by the appellant before the Service Tribunal was hopelessly time barred which has rightly been dismissed on this ground.
7. The impugned transfer notification dated 07.12.2021 was issued by the Board of Revenue but the appellant in the appeal filed before the Service Tribunal has arrayed the Senior Member Board of Revenue as party while ignoring that in this case the transfer notification issued by the Board of Revenue was challenged, hence, Board of Revenue was the necessary party to be impleaded in the line of the respondents but the appellant failed to array it as party. In the case reported as Syed Zahoor Hussain Shah vs. lmran Riaz and others [2018 SCR 386], it was held that: ".... It has been forcefully argued on behalf of the appellant that his appointment was made on the recommendations of respective selection committees vide order dated 6.7.2017. The Committee has not been impleaded in the line of respondents, hence, the writ petition before the High Court was not maintainable in absence of necessary party. In the case titled Saima Fareed and others vs. Divisional Director Schools and others (Civil Appeal No. 220 of 2015 decided on 5.4.2017), referred to and relied upon by the learned Advocate for the appellant, similar proposition has been resolved. The relevant portion of the judgment is reproduced as under: ".................All the orders annexed with the appeal speak that the same have been issued on the recommendations of Selection Committee, thus, in view of the factual proposition, the validity of the act of the Selection Committee is the basis of main controversy. The Selection Committee as a legal person has not been arrayed in the writ petition as party. Although, the, Chairperson, Secretary and one member has been arrayed in their individual capacity but it is the spirit of constitutional provisions of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 that the necessary party is one whose action has been challenged in the writ petition. In this case, the action of the Chairperson, Secretary or Member of the Selection Committee has not been challenged rather the action of the Selection Committee is challenged. The Selection Committee is a legal person and in view of the peculiar facts of this case unless the same is arrayed as party the writ petition is not maintainable. In this state of affairs, the High Court has rightly applied the principle of law laid down by this Court. On this proposition the impugned judgment does not suffer from any illegality or infirmity."
As the appellant failed to array the necessary party, hence, his appeal was liable to be dismissed on this sole ground.
8. So far as the merits of the case are concerned, according to the record earlier the transfer of the appellant was made on 28.05.2021 from Bhimber to Kotli Since then he is performing his services at Kotli as Extra Assistant Commissioner on the basis of status quo order granted by the Courts, meaning thereby, the appellant remained posted as Extra Assistant Commissioner, Kotli for a period of more than one year, whereas, according to the Transfer Policy for Divisional and District Administrative and Field and Ministerial Staff of Revenue Department, 2019 dated 31.01.2019 the minimums stay period at one station is mentioned as one year. Even otherwise, under Section 9 of the Azad Jammu and Kashmir Civil Servants, 1976 a civil servant is bound to serve, wherever he is transferred or posted and he cannot claim posting at one station for an indefinite period or seek posting of his own choice. Reliance in this regard may be placed on the case reported as Imtiaz Ghani vs. Azad Govt. and others [2016 SCR 1094], wherein, it has been held that: , "....
7. It may also be observed here that under Section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976 a civil servant has no vested right to remain posted at one place for an indefinite period and he can be posted anywhere in exigency of service. In this regard reliance can be placed on a case titled Nusrat Jabeen vs. Azad Govt. and 7 others [2014 SCR 456] in which it has been observed as under: "6... Under Section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976, a civil servant is obliged to serve under the Government inside or outside Azad Jammu and Kashmir wherever he/she is posted. A civil servant cannot claim to remain posted at one station for an indefinite period or seek posting of his/her own, choice........."
In view of the above, even on merits the appellant has no case at all. The impugned judgment of the Service Tribunal is perfect and legal one, calling for no interference by this Court.
For the above stated reasons, finding no force, this appeal is dismissed with no order as to costs.