' KHAWAJA MUHAMMAD SAEED, J---This appeal, with leave of the Court, is directed against the judgment passed by the Service Tribunal on 23-6-2003, whereby the appeal filed by respondent No,1, was accepted;
2. Admitted facts, briefly stated, are that respondent No,1 was posted as Assistant Education Officer
(male) Baluch vide order dated 13-12-2001. A Member of the Legislative Assembly of constituency No,2, through a note submitted by him to the Prime Minister of Azad Govt. Of the State of Jammu and Kashmir, obtained the approval for the transfer of respondent No,1 from the post of Assistant Education Officer to the post of Senior Teacher High School Killan and in his place Abid Hussain, who was serving as Senior Teacher in High School Killan, as Assistant Education Officer (male)
Baluch vide order dated 21-2-2003. Feeling aggrieved, the contesting respondent filed an appeal on 8-4-2003 before the Service Tribunal on the ground that he was senior as compared to respondent No,1 in the list of Senior Teachers of the Education Department. He further pleaded that under the policy of the Government he could not be transferred before completing a period of at least 2 years and further that the impugned notification has been issued without following the procedure laid down under the Rules of Business. The appellant, herein, contested the appeal before Service Tribunal, After taking necessary proceedings the learned Service Tribunal accepted the appeal of respondent No,1 vide its judgment dated 23-6-2003, and set aside the impugned notification dated 21-2-2003. Hence this appeal with leave of the Court.
3. Kh. Attaullah Chak, the learned counsel for the appellant, argued that it is the prerogative of the competent authority to appoint any person against any executive post including the Assistant Education Officer, if he otherwise fulfils the requirement of the post. According to him, his client was transferred and posted by the Prime Minister. He further argued that impliedly the Government policy was relaxed by the Prime Minister who was competent to do the same. Thereafter a notification was issued on 6th November 2001, wherein it stands incorporated that the notification dated 1st January 2001, whereby a ban was imposed on transfer of such employees who have not completed two years period of stay at a particular place shall remain intact, however, due to unavoidable circumstances if the transfer of any person is felt expedient, then in that case the sanction from the Prime Minister on sufficient reasons shall be obtained. According to him, the presumption shall be that the condition was relaxed, therefore, the judgment of the Service Tribunal whereby it is laid down that the Government had not relaxed the Government policy dated 1-1-2001, is contrary to the record. He further argued that the MLA has certified that respondent No,1 is not the resident of constituency No,2 Sudhnuti Baluch. According to the learned counsel, the attestation given by the Tehsildar Baluch Trarkhal was illegal which was given preference over the report of MLA, therefore, the judgment of the Service Tribunal even from this angle is liable to be set aside.
4. Conversely, Sardar Muhammad Habib Zia, the learned counsel for respondent No,1, argued that both the parties belong to constituency No,2, as is apparent from the list of Senior Teachers relating to constituency No,2, Baluch Sudhnuti, wherein his client is entered ahead of the appellant and placed at Serial No,5. Moreover, the Tehsildar Baluch Trarkhal in the light of the Revenue Record and on the report of Patwari has given an attestation that his client is the permanent resident of village Manjhari Constitutency No,2 Sudhnuti. According to him, the mutual transfer has been made between the contesting parties. The contesting respondent by transfer has been posted as Senior Teacher in High School Kilian from where the appellant was transferred and posted as Assistant Education Officer. According to him, the grounds furnished by the MLA for securing the sanction of transfer from the Prime Minister, therefore, were against the true facts. He further argued that his client had not completed the minimum period of two years as Assistant Education Officer.
Moreover previously an attempt made by the MLA for the transfer of his client was rejected by the Education Department. He referred the minutes of meeting which was held in the office of Secretary Education on 18-1-2003, whereby it was laid down that as the officer concerned is performing his duties efficiently, therefore, any recommendations for his transfer should not be accepted. The relevant minutes which were appended with the concise statement of contesting respondent and are the part of our paper book as annexure 'RB' reads as follows:--{{URDU TEXT}}
5. He further argued that the sanction of transfer was obtained from the Prime Minister on the recommendations made by the MLA. It was not routed by the concerned departmental authorities as is required by the provisions contained in the Rules of Business, therefore, the order obtained from the Prime Minister should have not been acted upon but the same was given effect illegally by issuing notification dated 21-2-2003. According to him if any transfer order is issued contrary to the Government policy contained under Notification No,Admin/G/7(13)/2001 dated Ist January 2001, then in that case the reasons must be given in the transfer order. The transfer order of the parties dated 21-2-2003 did not contain any reason, therefore, the said order was rightly set aside by the Service Tribunal in exercise of its appellate jurisdiction.
6. We have considered the respective arguments of the learned counsel for the parties in the light of the relevant record made available by them in the Service Tribunal as well as before us. From the record it becomes clear that the departmental authorities convened a meeting with the Secretary Education in chair on 18-1-2003, wherein the transfer of respondent No,1 came under discussion and it was resolved that as the said officer is performing his duties efficiently and they were satisfied by his conduct as Assistant Education Officer, therefore, he shall not be transferred. But later on without proper summary for obtaining the Sanction of the Prime Minister, the MLA obtained the sanction of transfer from the Prime Minister on some application, which is gross violation of law. In a case titled Sardar Muhammad Azim Zia v. Nazir Ahmed Qadri and others (2003 PLC (C.S.) 887), this Court has laid down as follows:-- "...... As rightly pointed out by the High Court the approval dated 28-2-1996, was obtained by the appellant on his own proposal whereas the other approval dated 20-3-1996, was obtained on the proposal of the Media Advisor to the Prime Minister. The appellant has failed to prove that any approval was accorded by the Prime Minister of the time on a duly processed file from the competent authority in accordance with the procedure laid down under the Rules of Business. Such approvals obtained through illegal process, confer no right to the appellant nor does it carry any legal weigh;
7. The transfer order was obtained on a stray application, therefore, the Service Tribunal was justified to hold that such orders should have not been enforced through notification. The transfer was recommended by the MLA which was sanctioned by the Prime Minister. The MLA has no business to recommend the transfer of the Government officials. On his recommendations the Prime Minister in colourful exercise of his official authority granted sanction in the following words:- -{{URDU TEXT}}
8. The Prime Minister neither relaxed the Government policy nor mentioned any compelling reasons which prevailed with him to grant sanction of transfer contrary to the Government policy Notification No, Admin/G/7(13)/2001 dated 1st January 2001. The reason which was mentioned by the MLA in his recommendations that the contesting respondent does not belong to the constituency No,2 is contrary to the true .Facts. Both the parties are entered in the seniority list of constituency No,2, where the respondent No,1 has been shown at serial No,4. The mutual transfer of the contesting parties have been made in the offices falling in constituency No,2 and the report of Tehsildar based on the report of Patwari and the Revenue Record shows that respondent No,1 has constructed a concreted house some 18 to 19 years back in village Minjhari constituency No,2 Balooch Sudhnuti, in which he is permanently residing along with other members of his family. In the light of these facts the Service Tribunal rightly allowed the appeal of respondent No,1 and set aside the transfer order dated 21-2-2003.
' This appeal, in the light of above discussion, having no merit is dismissed with costs.