SYED ALLY MADAD SHAH (CHAIRMAN)..-Appellant Mrs. Ghulam Fatima has preferred this appeal against the order of her transfer from M.T.T. F.G. Girls Primary School, Hyderabad to F.G. Girls Middle School, Zhob Cantt., made by the Director, Federal Government Educational Institutions, Rawalpindi on 12-11-1985.
2. The appellant was appointed as a Language Teacher in Sindhi in Cantonment Girls High School, Hyderabad on 22-4-1965. The Cantonment Educational Institutions were taken over by the Federal Government in the year 1977. The appellant continued serving in the same institution. In the year 1979, she was transferred to Drigh Road Cantt. She callenged her transfer order in the Court of Senior Civil Judge, Hyderabad by way of Suit No, 87 of 1979. Her suit was decreed by the Senior Civil Judge, Hyderabad by judgment dated 29-2-1984. However, her transfer order was cancelled on 2- 10-1984. After about a year, the impugned order of her transfer from Hyderabad to Zhob was made on 12-11-1985. She made departmental representation/appeal to the Director, Federal Government Educational Institutions, Rawalpindi and submitted its copy to the Secretary, Ministry of Education, Islamabad, on 1-12-1985. Awaiting decision on her representation/appeal for more than 90 days, she preferred this appeal on 24-3-1986.
3. The grounds urged by the appellant are that she is a permanent resident of Hyderabad and her appointment was as a Sindhi Language Teacher localised at Hyderabad and there was no justification for transferring her from Hyderabad and the order of her transfer was illegal in view of the judicial verdict given in her suit filed against an earlier order of her transfer and it was also tainted with mala fide as the Headmistress of the School was hostile to her.
4. The respondents have filed written objections, although there is no appearance today on their behalf. It has been stated in the written objectios that the earlier transfer of the appellant from Hyderabad to Drigh Road Cantt. was on a report received from GSO-I Karachi and the suit filed by her was decided in her favour ex parte and she was re-posted in the same institution but she did not behave as a disciplined teacher and she was, therefore, transferred and order of her transfer was passed in accordance with section 10 of the Civil Servants Act, 1973.
5. The learned counsel for the appellant has urged that the appellant was appointed only for teaching Sindhi subject and her appointment was regionalised and she was not liable to have been transferred in view of the proviso to section 10 of the Civil Servants Act, 1973. He has made reference to the order of the President dated 10-9-1977 in respect of transfer and control of management all the Cantonment and Garrison Schools and Colleges in Pakistan to the Directorate of Army Education, GHQ, providing that the transferred staff was to be governed by their existing terms and conditions of service and urged that the appellant was not liable to have been transferred from Hyderabad. He has also made reference to clause (iv) of paragraph 3 of the Service Policy in respect of the Pakistan Cantonment Servants issued on 15-7-1972, providing that members of the local cadre shall not be transferable except under mutual agreement. He has alleged that the appellant's transfer was clear victimisation and is a matter of punishment without giving her any show cause notice. He has placed reliance on the cases reported in PLD 1970 SC 453; 1985 S CMR 1753 and 1989 S CMR 354. As already mentioned above, none has appeared today to represent the respondents.
6. Substantive provision for posting and transfer of a civil servant is contained in section 10 of the Civil Servants Act, 1973. It lays down that every civil servant shall be liable to serve anywhere within or outside Pakistan in any post under the Federal Government, or in a Provincial Government or local authority or a corporation or body set up or established by any such Government; provided that nothing so contained shall apply to a civil servant recruited specifically to serve in a particular area or region; and provided further that where a civil servant is required to serve in a post outside in a service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve. The emphasis is placed in this case on the first proviso that no civil servant recruited specifically to serve in a particular area or region shall be liable to serve outside that particular area or region.
The appellant was appointed as a teacher to teach only Sindhi language and, therefore, her appointment was localised only to the Province of Sindh, if not only to Hyderabad region, and the order of her transfer to Zhob in Balochistan Province was obviously an act of victimisation; and considering the past history of her service that when she had been transferred from Hyderabad, she had to file a suit which was decreed in her favour that her transfer from Hyderabad was illegal and yet she was transferred to a place outside the Province, the impugned order was not bona fide but motivated by malice. In case the appellant had assumed the role of being indisciplined, as alleged, she could have been proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, but not punished in the manner adopted by the respondents.
7. During the course of hearing, we have noticed that the appellant had made representation to the Director, Federal Government Educational Institutions, GHQ, Rawalpindi on 1-12-1985 requesting for cancellation of the order of her transfer and submitted its copy to the Secretary, Ministry of Education, Islamabad. The learned counsel for the appellant stated that this representation constituted the departmental appeal. On query from our side, he stated that although the representation was addressed to the Director, Federal Government Educational Institutions, who had passed the order, a copy thereof was submitted to the Secretary, Ministry of Education and that served the purpose of making departmental appeal; and the Director could have forwarded it to the appellate authority, if he was not obliged to consider the appellant's request; and even otherwise the Secretary, Ministry of Education could take cognizance of the matter, as the appellate authority, on the copy of the representation submitted to him. The peculiar facts of this case give rise to two situations, firstly that the impugned order was suppossily passed in exercise of powers vested under section 10 of the Civil Servants Act, 1973, referred to above, and that is the case of the respondents to; and secondly that the impugned order amounted to the alteration of the terms and conditions of the appellant's service that she was supposed to serve within the region. In the case of first eventuality, the appellant could make only representation which was done by her; and in the case of the second alternative, she could prefer an appeal under Rule 4 of the Civil Servants (Appeal) Rules, 1977. It is therefore, a case where liberal view is to be adopted and the application of the appellant made on 1-12-1985 to the Director, Federal Govt. Educational Institutions and its copy having been submitted to the Secretary, Ministry of Education, served the purpose of making resort to the departmental remedy before coming to the Tribunal. Guidance in this respect is derived from the observations of the Supreme Court in the case of Federation of Pakistan v. Muhammad Azam Javaid and others, reported in 1988 SC MR 1458. It may also be mentioned here that the respondents have not taken any objection that no departmental appeal/representation was made, but they have rather treated the application/representation dated 1-12-1985 as an appeal as it has been stated in para. 2 of their written objections that the appellant's appeal for cancellation/withdrawal of the transfer was more of a threat than a request which is not only against the norms of conduct expected of a civil servant but also in violation of good order". Thus, the appeal does not suffer from any infirmity of taking the appropriate proceedings at the departmental level.
8. For the reasons recorded above, the appeal is allowed and the impugned order of transfer of the appellant dated 12-11-1985 is set aside. The appellant shall be entitled to her posting in the same institution if she is within the range of the age of superannuation. She will be entitled to all the admissible benefits as if she had not been transferred under the impugned order.