' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been preferred against an order passed by the Service Tribunal on 3-3-2001, whereby the transfer order of respondent herein passed by Director Education Schools (Secondary) dated 1-3-2001 was suspended.
2. The necessary facts, giving rise to the present appeal, are that the appellant is holding the post of Junior Teacheress and the appellant's husband and other family members are living within the municipal limits of Muzaffarabad. It is claimed that the appellant is serving away from municipal limits for the last 10 years, whereas respondent Shaheen Manzoor is serving within the municipal limits since 31-10-1987 and was never transferred from High School Muzaffarabad to any other school even within the municipal limits of Muzaffarabad. The Director Education Schools (Secondary) after obtaining the necessary approval from the competent authority vide order dated 1-3-2001 transferred the appellant from the post of Junior Teacheress Girls High School Garhi Dupatta to the post of Junior Teacheress Girls High School Muzaffarabad arid respondent Shaheen Manzoor was transferred in place of appellant. In compliance of order dated 1-3-2001 the appellant was relieved by the Headmistress Government Girls High School Garhi Dupatta on the same day and the appellant submitted her joining report before Headmistress Girls High School Muzaffarabad on 2-3-2001 and started functioning there. Copies of relieving and joining reports are attached with the appeal as Annexures "PC" and "PD".
3. It was also alleged by the appellant that when the transfer order dated 1-3-2001 was implemented on 2-3-2001, respondent No,1, Shaheen Manzoor, filed an appeal before the Service Tribunal on 3-3-2001. The appeal was taken for hearing by the Member Service Tribunal on the same day and the learned member while admitting the appeal of respondent for regular hearing, also suspended the operation of order of transfer vide his order dated 3-3-2001 subject to objections till 1 the next date which was fixed as 4-5-2001. It is the aforesaid order of the learned Member Service Tribunal dated 3-3-2001 which is the subject of present appeal.
4. In support of appeal it was vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for the appellant, that under section 3(iii) of Service Tribunals Act, the Service Tribunal shall consist of a Chairman and one Member. The Chairman of Service Tribunal has been retired from service w,e,f, 20-12-2000 and no one has yet been appointed nor the Government in exercise of its powers under section 7 of Service Tribunals Act notified the person who has to act as Chairman in absence of Chairman appointed under section 3(iii) of the said Act. The learned Member of the Service Tribunal had no jurisdiction to perform the functions of admission of appeal and passing the order for suspension of order of transfer. The learned counsel contended that it is a celebrated principle of law that a Member can only exercise his powers when the Chairman has constituted the Bench under section 6 of the Service Tribunals Act. The learned counsel for the appellant also contended that before passing the suspension order, the learned Member Service Tribunal did not give any notice to the appellant nor the appellant was provided personal hearing. The learned counsel contended that under section 9 of the Civil Servants Act a civil servant is liable to serve anywhere within or outside Azad Kashmir at any post provided that the terms and conditions of such civil servant are not less favourable than those to which the civil servant was entitled. The learned counsel also contended that the respondent never served outside the limits of Muzaffarabad since 1987 and conversely the appellant was never transferred to serve within the municipal limits of Muzaffarabad. Thus, every civil servant is to be treated as equal before law and a like treatment is to be meted out to them. Thus, keeping in view the long period of 10 years of the service of respondent within the municipal limits, she was transferred to serve outside the limits of Muzaffarabad with the approval of competent authority, but the order of transfer was illegally suspended by the Service Tribunal.
5. Controverting the arguments raised by the learned counsel for the appellant, Mr. M. Tabassum Aftab Alavi, the learned counsel for respondent No,1, vehemently urged that according to Notification of Government dated 17-1-2001, a ban was imposed on all transfer orders, however, it was provided in the said notification that in case of urgency concerned Secretary will bring the matter to the notice of Chief Secretary who will take appropriate decision. But without bringing the matter to the notice of Chief Secretary and without his approval the order of transfer of respondent was made by Director Education Schools (Secondary) which was violative of law and without any lawful authority. The learned counsel for respondent referred to clauses (c) and (d) of Notification dated 17-1-2001 which read as follows: "(c) A ban on new recruitments is imposed in all Government/Semi Government/Autonomous/Semi-Autonomous Organizations till further orders.
(d) All transfers are banned till further orders. However, in case of any urgency concerned Secretary will bring the matter to the notice of Chief Secretary who will take appropriate decisions."
' The learned counsel for respondent also contended that according to Annexure "RB" a summary of the transfer of respondent and appellant was submitted by Additional Secretary Education to Minister Education on 28-2-2001, on which an order of Minister dated 28-2-2001 appears to have been passed stating therein that orders may be issued subject to approval but no approval was obtained. The learned counsel also referred to another Annexure "RC", wherein a summary for transfer of respondent was prepared by Additional Secretary Education dated 22-3-2001 on which there is a note of the Education Minister that in the proposed summary the period of appointment of respondent may be pointed out. However, no order of transfer appears to have been made.
Similarly according to Annexure "RD" an application was moved by husband of appellant to Secretary Education that his wife may be transferred within the municipal limits. The learned counsel also contended that even on this application no transfer order of respondent was passed by any competent authority. The learned counsel while relying on Annexure "RB" contended that there were at least 13 teacheresses whose period of stationing within the municipal limits of Muzaffarabad was much more than the respondent and the name of respondent in the panel prepared by Education Department figures at Serial No,14 but instead of transferring the other 13 teacheresses the transfer order of respondent was passed in violation of law by Director Education Schools (Secondary) who had no jurisdictional competence in view of Government Notification dated 17-1-2001, Annexure "RA", referred to above. The learned counsel further contended that the transfer order of respondent without obtaining the approval of Chief Secretary was violative of law.
The learned counsel also contended that the impugned order of suspension dated 3-3-2001 was issued subject to objections by the appellant but instead of submitting her objections before the Tribunal, the appellant opted to file an appeal against the impugned order which was liable to be dismissed. The learned counsel contended that while granting the ad interim injunction the Service Tribunal committed no error as the order was subject to objections by the appellant. The learned counsel for respondent also contended that the contention raised by the learned counsel for the appellant merits no consideration that the learned Member Service Tribunal was incompetent in law to pass the impugned order. The learned counsel for respondent in support of his contentions relied on Ramzan Sugar Mills Ltd. And others v. Mian Meraj-ud-Din and others (1994 SCM R 2281), Mohterma Benazir Bhutto M.N.A. v. The State (1999 SCM R 1447) and Government of Punjab through Secretary Finance v. Punjab Public Service Commission Employees Association Lahore and 12 others (1992 SCM R 1847). The learned counsel also urged that the transfer order of respondent appears to have been passed on mala fide intents of respondents. Thus, the learned Member Service Tribunal committed no error in suspending the order of transfer of respondent subject to objections by the appellant.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the record, we may in the first instance attend to the objection raised by the learned counsel for the appellant that due to non-appointment of Chairman Service Tribunal, the Service Tribunal was not complete and as such the Member Service Tribunal was incompetent in law to pass the impugned order. It may be clarified that section 6(5) of the Azad Jammu and Kashmir Service Tribunals Act provides that the Tribunal shall consist of a Chairman and one Member but no proceedings of the Tribunal shall be rendered illegal and ineffective simply for the reason that such proceedings were taken by a single Member or Chairman of the Tribunal. Therefore, the objection raised by the learned counsel for the appellant stands repelled. In a case reported as Sardar Khan and another v. Sh. AttauIlah and 10 others (1989 CLC 1845) it was observed as follows:-- "It follows from the above cited case-law that if the vacancy of a Judge of the Superior Court fails vacant for one reason or the other and thus, the number of Judges falls short of the minimum number prescribed under law, the constitution of the High Court would not be adversely affected and the remaining Judges or Judge, as the case may be, would be competent to perform their function under law It is a matter of common practice that when a vacancy of Judge occurs in a superior Court on account of retirement of a Judge or otherwise, it takes sometime for the authorities concerned to fill up such vacancy. If we accept the proposition propounded by the learned counsel for the appellants, any such decrease in the number of Judges would render the remaining Judges incompetent to perform their functions till the vacancy is filled up. In other words an important organ of the State would stand paralysed and its functioning would come to stand still. This could not be the intention of the law giver. Had it been so there would have been express provision in that regard.
7. The order of suspension of transfer- of respondent passed by the learned Member Service Tribunal is in the nature of interim relief subject to objections to be filed by the appellant. The interim order normally cannot be made a subject of appeal before the Supreme Court unless some patent illegality is shown or it is shown that the order was passed in excess of I C jurisdiction.
In a case reported as Ramzan Sugar Mills Ltd. And others v. Mian Meraj-ud-Din and others (1994 SCM R .2281), it was observed that Supreme Court normally declines to interfere with the interim orders in exercise of its discretionary powers under Article 185(3) of the Constitution of Islamic Republic of Pakistan, as non-interference with the interim orders passed by the Court of competent jurisdiction is a rule and interference is an exception.
' In another case reported as Government of Punjab through Secretary Finance v. Punjab Public Service Commission Employees Association Lahore and 12 others (1992 SCM R 1847) it was observed as follows:-- "The respondents were allowed interim relief of allowance pending adjudication of their writ petitions. The allowance was to meet the rising costs of living. If they were to be denied the relief they would be finding difficult to meet the rising expenses, say of paying fees for their children.
Obviously they would suffer irreparable loss. If on the other hand, they were to lose their writ petitions ultimately it would not be difficult for the petitioner rather easy to recover the amount from -the salaries of the respondents. Clearly the balance of convenience was in favour of the respondents. In these circumstances, consistently with the previous judgment of the High Court and relying on the order of this Court if the learned Judge has passed the impugned order it calls for no interference. It is only an interim order and such orders are not normally interfered with by this Court. There are no extraordinary grounds to depart from the normal rule. Therefore, this petition is dismissed."
' In a case reported as Mohterma Benazir Bhutto M.N.A. v. The State (1999 SCM R 1447) it was observed that orders at the interlocutory stage should not be brought to the higher Courts to obtain fragmentary decisions as it tends to harm an advancement of fair play and justice, curtailing remedies available under the law even reducing the right of appeal.
8. At this stage we do not feel advised to enter into the detailed merits of the case as to whether in view of Notification of Government dated 17-1-2001 without the approval of the Chief Secretary the transfer order of respondent was within the jurisdictional competence of Director Education Schools (Secondary) or not as any observation on the said point may prejudice the case of either of the parties. It is for the Service Tribunal which is seized with the matter to resolve the aforesaid point and the other points raised by the learned counsel for the respondent.
9. The question that the period of stationing of about 13 teacheresses within the municipal limits of Muzaffarabad was much more than the respondent but the respondent was transferred even without obtaining the necessary approval by the Chief Secretary and the fact that it has been alleged by the respondent in her one of the grounds of appeal that her husband being a Government servant died in an accident and she is only to look after her minor children and making arrangements for their education, is likely to suffer much more inconvenience, is to be decided by the Service Tribunal which is seized with the matter. Therefore, without commenting on the merits of the case, we are of the considered view that the impugned order being interim in nature and passed subject to objections by the appellant hardly calls for interference by this Court.
10. Keeping in view the celebrated principles, i,e, the prima facie case, the balance of convenience and irreparable loss, we are inclined to hold that the learned Member Service Tribunal committed no error in passing the suspension order of the transfer of respondent subject to objections by the appellant.
11. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with no order as to costs. However, the case is remanded to the Service Tribunal with the direction that the order of suspension of transfer passed by the Service Tribunal shall remain intact and after filing the objections by the appellant, the Service Tribunal shall hear the matter afresh and decide it according to law. In view of order of dismissal of appeal the stay order whereby the order of Service Tribunal was suspended by this Court vide its order dated 2-4-2001 also stands vacated. /order accordingly.