' BASHARAT AHMAD SHAIKH, J.--Appellant Ms: Tahir-un-Nisa is an Assistant Professor in Education Department. On 9th September, 1998 she was transferred to Girls Degree College Bagh as Lecturer in English. Respondent Ms. Imrana Rafee, who was then posted at Girls Degree College Bagh was transferred as Lecturer in English in place of the appellant. Ms. Tahir-un-Nisa challenged her transfer order by filing appeal before the Service Tribunal which is pending disposal.
2. The appellant also moved an application for interim relief. The main grievance which the appellant raised before the Service Tribunal was that she was Assistant Professor B-18 and could not be transferred as a Lecturer, a post carrying B-17. Ad interim stay was granted by the Tribunal but was cancelled after hearing the respondent. Learned members of the Tribunal observed in their order of 3rd November that Ms. Imrana Rafee had already joined at Girls Degree College at Muzaffarabad and for that reason the stay order issued by the Tribunal had become inoperative.
Leave to appeal was granted to Ms. Tahir-un-Nisa when it was urged on her behalf that this Court has authoritatively laid down the law that a civil servant cannot be transferred in the same pay and scale against a post carrying higher scale and also in view of the accepted law that a civil servant cannot be transferred to a lower post.
3. To begin with Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, pointed out that the Service Tribunal wrongly observed that Ms. Imrana Rafee had already joined at Muzaffarabad and for this reason the stay order issued by the Service Tribunal had become inoperative. The learned counsel pointed out that when this Court issued notice to Ms. Imrana Rafee in the application for interim relief, she wrote a note that she had already joined the College at Muzaffarabad on 5th November, 1998. The learned counsel pointed out that this note proved that the respondent had not assumed duties at Muzaffarabad when the Service Tribunal cancelled the stay order on 3rd November by observing that Ms. Imrana Rafee had already joined at Muzaffarabad and the stay order issued by the Tribunal had become inoperative. We have seen the note written by the respondent on the notice sent to her and find that the submission of the learned counsel is factually correct.
4. In support of the appeal, it was submitted by Mr. Abdul Rashid Abbasi that the appellant is an Assistant Professor in B-18 while the respondent is a freshly recruited Lecturer in B-17. The learned counsel vehemently contended that the order impugned before the Service Tribunal was not a simple transfer order but was an order by which the appellant was demoted to the post of Lecturer which was patently illegal. The learned counsel contended that conversely the respondent was a lecturer in B-17 and she could not be transferred against the post of Assistant Professor previously held by the appellant. On this point the learned counsel relied on Mubasherul Haque v. Azad Government of the State of Jammu and Kashmir and 2 others (PLD 1990 SC (AJ&K) 66), Muhammad Rashid Choudhry v. Chairman AKLASC and others (1993 PLC (C.S.) 1201), Doctor Khawaja Mushtaq Ahmad v. Azad Government and others (1995 PLC (C.S.) 410) and Muhammad Yaqoob Khan v. Secretary Forest/Tourism AJK and another (1999 MLD 1862) to contend that, a civil servant cannot be transferred, even temporarily, in the same pay and scale to a post carrying higher grade. Mr. Abdul Rashid Abbasi also drew our attention to a Government notification issued on 7th September, 1992, Annexure 'M' in the paper book, in which it was laid down that in future Assistant Professor will not be transferred or posted against the posts of Lecturers. It is also laid down in the said notification that in future husband and wife will not be entitled to be posted to the same station. It may be observed that the transfer of respondent to Muzaffarabad has been ordered on the basis of her husband's posting at Muzaffarabad.
5. Kh. Shahad Ahmad, the learned counsel for respondent Ms. Imrana Rafee, vehemently contended that posting and transfer is .a discretionary matter and cannot be interfered with by a Court of law. He further submitted that if the transfer order impugned before the Service Tribunal is ultimately set aside the appellant can be brought back to Muzaffarabad but no valid reason is available for suspending operation of the transfer order. The learned counsel cited Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-1, Gujranwala v. Government of Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others (1996 SCMR 645) to contend that under section 9 of the Civil Servants Act a civil servant is liable to be transferred from one place to another or to any other post and if a civil servant had some legitimate grievance about his transfer still the Service Tribunal is bound to take into consideration the principles of balance of convenience and irreparable loss while deciding a stay application. The Supreme Court of Pakistan held that the Service Tribunal had acted is utter disregard of the well-established principles in suspending operation of the transfer order.
6. After due consideration we are of the view that the contention raised on behalf of the appellant that the order impugned before the Service Tribunal is prima facie much more than a mere transfer order has force. The order runs as follows:-- (1). Ms. Imrana Rafee Lecturer in English Girls Degree College Bagh is transferred as Lecturer in English at Girls Degree College Muzaffarabad in place of Ms. Tahir-un-Nisa, Assistant Professor.
(2) On the basis of duration of stay, Ms. Tahir-un-Nisa, Assistant Professor English Girls Degree College Muzaffarabad is transferred and posted as Lecturer in English at Girls Degree College Bagh in place of No, 1 above." (Translated)
7. It is clear from the phraseology of the order reproduced above that the respondent has been transferred and posted against a higher post. The order, therefore, appears to be in violation of the law laid down by this Court in the judgment cited by the learned counsel for the appellant. It may be mentioned here that the law laid down in these judgments is now so well-settled that its violation has in some cases led to initiation of contempt proceedings. Even in Imran Raza Zaida's case cited by the learned counsel for the respondent, the Supreme Court of Pakistan has particularly mentioned that a transfer order should not have the effect of varying the terms and conditions of a civil servant. The Supreme Court observed: "We are of the considered view that by reason of the provisions of section 9 of the Civil Servant Act, a civil servant is liable to be transferred from one place to another and of any post specified in the said provision subject course, to the condition that the terms and conditions of his service are not varied to his disadvantage and he cannot ordinarily raise any legal objection to such a transfer".
8. In this view of the matter the Service Tribunal should have taken due notice of the fact that the order impugned before it was garbed as a transfer order while in fact it was not so and that it violated dictum of this Court. In our view on coming to know that the impugned order has been passed in violation of numerous judgments of the Court the order passed by the Tribunal tantamount to ignoring the law laid down by this Court. The Tribunal rightly issued a stay order because it had the effect of implementing the judgments of this Court but subsequently cancelled it on a wrong assumption that the respondent had already assumed duty at Muzaffarabad.
9. Kh. Shahad Ahmad, the learned counsel for the respondent, cited a judgment from Supreme Court of Pakistan title. Mirajud Din v. Director Health Service, Lahore Region and others (1969 SCMR 4) to .Contend that discretionary relief cannot be exercised in favour of the appellant because she had not carried out the transfer order. There is nothing on the record to show that the assertion is factually correct. In fact it has already been seen that the respondent has already taken over at Muzaffarabad which shows that the order had been carried out.
In these circumstances we are of view that this is a fit case in which operation of the order impugned before the Service Tribunal may be suspended till disposal of the appeal by the Service Tribunal. Therefore, we accept the appeal, set aside the order passed by, the Service Tribunal and order that Government order of 9th September, 1998 passed in respect of the posting and transfer of the appellant and the respondent shall remain suspended till the appeal is disposed of by the Service Tribunal. As a result status quo ante as it exited before 9th September, 1998 shall be restored.