' MUHAMMAD YUNUS SURAKHVI, C.J.---This appeal, by way of leave of the Court, has been directed to challenge the judgment passed by the Service Tribunal of Azad Jammu and Kashmir on 12-4- 2003, whereby the Notification dated 14-11-2002 issued for posting and transfer of respondents Nos.1 and 2 herein was set aside.
2. The necessary facts, precisely stated, are that respondent No,2, Naheed Nazir, was serving as Senior Teacheress in the Education Department and she had completed more than seven years period out of her home station. Vide order dated 27-3-2002 she was transferred from Government Girls High Seher-Mandi to Government Girls Inter College Sehnsa. According to her, the order dated 27-3-2002 was implemented and acted upon by the parties and she continued her service in Government Girls Inter College Sehnsa uptil 14-11-2002. On 14-11-2002 she was again transferred back to Government Girls High School SeherMandi where she had already completed more than seven years period. Aggrieved by the Notification dated 14-11-2002 she filed Service Appeal No,500 of 2002 before the Service Tribunal of Azad Jammu and Kashmir on 19-11-2002.
3. Kishwar Sikandar, respondent No,1 herein, also filed an appeal against the aforesaid Notification dated 14-11-2002 before the Service Tribunal Azad Jammu and Kashmir. The facts of her Appeal bearing No,504 of 2002 were that through the Notification dated 14-11-2002 she was transferred from the post of Assistant Education Officer Sehnsa to Government Inter College Sehnsa without completion of two years period and in her place Muhammad Fazil, appellant herein, who was Senior teacher Annohi, Sarhota, was posted as A.E.O. Sehnsa. Aggrieved by the aforesaid Notification, she filed an appeal before the Service Tribunal on 21-11-2002.
4. The Service Tribunal vide its impugned consolidated judgment dated 12-4-2003 accepted the appeals filed by both the respondents and observed that Naheed Nazir served as Senior Teacheress in Seher-Mandi for more .Than seven years and she was for the first time posted in Government Girls Inter College Sehnsa on 27-3-2002. She had not completed the period of two years and was sent back to Sehr-Mandi, which act of official respondents is totally against the policy framed by the Government. With regard to Mst. Kishwar Sikandar, it was observed by the Service Tribunal that it is unfortunate to state that the official respondent knowing fully well that it has been laid down by the apex Court that no male member shall be transferred and posted in the female institutions, even then they posted Muhammad Fazil as A.E.O. (Female) Sehnsa, which act of the official respondents is undesirable. Mst. Kishwar Sikandar was given the charge of A.E.O. On 17- 9-2001 and without completion of policy period of two years, she was posted in Government Girls Inter College and in her place, Muhammad Fazil, Senior Teacher, was appointed and posted as A.E.O. (Female).
5. In support of appeal it was vehemently contended by Sardar Muhammad Habib Zia, the learned counsel for the appellant, that as Mst. Kishwar Sikandar was not fulfilling the requirements of job because the area of Tehsil Sehnsa is comprised of thick forests and high hills, so it was very difficult for a woman A.E.O. Like her to reach and visit every school which are situated at unapproachable places. The learned counsel further maintained that many schools were not functioning properly and the teachers, who were posted there, were taking their salaries without performing their duties.
On the other hand, the appellant, who is a male Assistant Education Officer, has visited every school by travelling on foot and many of them are situated for about 12 to 15 miles away from the road approach. So the Notification dated 14-11-2002 has rightly been passed as it is not possible for a woman to visit the institutions which are situated in far-flunged areas. The learned counsel for the appellant further contended that respondent No,2, Mst. Naheed Nazir, was also adjusted in Government Girls High School Seher-Mandi which is situated nearby her home village, the distance of which can be travelled within 20 minutes, so the Department has not committed any irregularity while posting respondent No,2 in Government Girls High School Seher-Mandi. The learned counsel further submitted that the Service Tribunal in para No,10 of its impugned judgment has not properly interpreted the judgment of this Court titled Mst. Saiqa Bibi v. Secretary Education and others 2002 PLC (C.S.) 797. The interpretation was mad against the essence of the judgment by observing that the apex Court has held that no male person can be posted when a female is available but the fact of the matter is that this Court has not debarred the Department from posting of male teachers against the female posts and a male teacher can be posted against a female post under the compelling reasons. The learned counsel also strenuously argued that it is the prerogative of the Government to transfer a Government servant from one station to another within the area of Azad Jammu and Kashmir under the provisions of the AJ&K, Civil Servants Act, 1976. The Notification dated 14-11-2002 has been passed relating to transfers to the appellant and respondents Nos.1 and
2. According to the learned counsel for the appellant, it was essential to transfer respondent No,1 from the post of A.E.O. Against which she was not performing her duties according to its needs.
Therefore, according to the learned counsel for the appellant, respondents Nos.1 and 2 have been adjusted near their home stations. The learned counsel pressed into service the submission that the District Education Officer (Female) Elementary Schools, Kotli, presented her comments before the Service Tribunal. In the comments, the aforesaid. D.E.O. Made the prayer, the English translation of which is as follows:-- "On the basis of what has been stated above, it is stated that the appellant (Kishwar Sikandar) during her stay as A.E.O. Has created number of administrative problems. Cases went in Courts on the basis of which the Department was defamed. Many of the Primary Institutions remained closed for many years. She did not make any visit to the institutions out of which Girls Primary Schools Nain-Sukh, Mamb-Dogala, Namtran, Aon, Jalwa-Basti, are in particular to be stated are closed; the report of which has been sent to Advisor Education, the copy of which is attached. Upon it, this office directed the A.E.O. To open the institutions and to send the recommendations for better suggestions but she did not co-operate. The transfer of Primary Teachers was within the jurisdictional competence of D.E.O. And on account of ban, it was not possible without the relaxation of ban by the Government to make transfers, but the A.E.O. Had been doing the same herself on account of which several problems cropped up. Now the Notification has been acted upon and the new officer after taking the charge has started his work, as such the appeal is recommended to be dismissed.
6. On the other hand, Mr. M, Tabassum Aftab Alvi, the learned counsel for respondents Nos.1 and 2, drew our attention to a document, exhibit C/3', which is available at page 72 of the file of Service Tribunal wherein the same District Education Officer, namely, Mst. Maqsood Begum, with regard to transfer of Mst. Kishwar Sikandar, A.E.O. Sehnsa, made the remarks which were duly placed on the file of the Service Tribunal, the English translation of which is as follows:-- "In the above stated matter, it is stated that Mst. Kishwar Sikandar vide Notification No,3987-94 dated 17-9-2001 was appointed as, Assistant Education Officer (Female) Sahnsa. The aforesaid officer remained posted at the said post till 14-11-2002. During this period the officer performed her functions honestly and in a dutiful manner. During her stay, neither any case is pending nor there is any complaint against her."
7. Finding both the comments of contradictory nature and after hearing both the learned counsel for the parties, for the purpose of doing complete justice we felt advised to summon Mst. Maqsood Begum, District Education Officer (Female) Elementary Schools, Kotli, who is presently posted at Bhimber. On 4-12-2003 she appeared in the Court and got her statement recorded. She stated that the comments in the appeal filed by Mst. Kishwar Sikandar before the Service Tribunal, exhibit `C/1' dated 29-11-2002 have been signed by her and her signatures are exhibit `C/2'. She also stated that at page 72 of the file of the Service Tribunal, portion 'A' to 'A' of exhibit `C/3', was correctly written by her which she has seen, whereas portion 'B' to 'B' of exhibit `C/1' at page 58 of the file of Service Tribunal is not correct. She stated that she was going to Mirpur from Muzaffarabad as one of her relatives had died that Muhammad Fazil, appellant herein, and one Jafer Shah, came to her and threatened her that unless she signs the comments exhibit `C/1', she cannot move her vehicle; therefore under their coercion she signed the comments. The witness further explained that the said comments have not been prepared by her rather the same were got prepared by the appellant before hand and upon it her signatures were obtained under duress. Muhammad Fazil, appellant herein, warned her that he had to submit the comments in the Court on the same date, therefore, she must sign them.
8. Sardar Muhammad Habib Zia, the learned counsel for the appellant, was given the opportunity to cross-examine the witness but after having subjected the witness to cross-examination, he could not get divulged anything from her in favor of the appellant, his client. In the cross- examination, the witness stated that so long she remained in Kotli, the copy of comments favoring the appellant was not present in the office of D.E.O. And if the same was available now, with regard to that she had no knowledge., The witness was asked by the learned counsel for the appellant as to when the comments were sent and when the dispatch number was entered by the clerk before hand, she stated that she had no knowledge with regard to that. She also denied that the comments exhibit `C/3' were written at the behest of some other person rather she stated that she had sent the same herself as the case of Mst. Kishwar Sikandar was pending in the Service Tribunal.
The witness also denied that she was not telling truth. She stated that she had made statement keeping in view the real facts.
9. Mr. M. Tabassum Aftab Alvi, the learned counsel for respondents Nos.1 and 2, also submitted with vehemence that the official respondents without any legal justification and in violation of Government policy, wherein two years period is required to be served at one station, passed the impugned Notification dated 14-11-2002. After the completion of seven years period out of her home station, Mst. Naheed Nazir, for the first time was posted from Government Girls High School Seher-Mandi to Government Girls Inter College Sehnsa but through the Notification dated 14-11- 2002 she was again sent back to Government Girls High School SeherMandi and in her place Mst.
Kishwar Sikandar, A.E.O. Sehnsa, was posted in Govt. Girls Inter College Sehnsa. Muhammad Fazil, appellant herein, was posted in place of Mst. Kishwar Sikandar as A.E.O. Sehnsa.
10. It is an admitted fact that the period of two years, as stated earlier, was not completed by both the respondents and furthermore the posting and transfer was ordered to accommodate and to hand over the charge of A.E.O. Sehnsa to one male member, Muhammad Fazil, with the result that Mst. Kishwar Sikandar was posted in place of Naheed Nazir and in place of Mst. Kishwar Sikandar, Muhammad Fazil was transferred and posted as A.E.O. Sehnsa. It is correct that through the impugned Notification dated 14-11-2002, the policy for staying for two years at a station, has been violated and male member has been posted in female institution which action of the official respondents is against the pronouncements of this Court. Mst. Kishwar Sikandar, according to the record, has served out of her home station for more than 10 years. Almost whole of service of Mst.
Kishwar Sikandar prior to posting as A.E.O. Was completed out of her home station which is Sehnsa.
This Court has laid down a principle in its various pronouncements that no male member shall be posted and transferred in female institutions unless it is proved that female member is not available to hold the job.
11. In a case reported as Kausar Perveen v. Azad Government and 2 others (2002 PLC (C.S.) 1385) it as observed that it is indeed correct that it is the prerogative of the Government to transfer any civil servant from one place to another but at the same time it is desirable that the Government and the concerned department should also take into consideration a uniform policy for all the Government employees irrespective of their political background.
12. In another case titled Mst. Saiqa Bibi v. Secretary Education and others 2002 PLC (C.S.) 797 it was observed as follows:-- "Both the learned counsel for the parties have brought our attention to the fact that it is not a good precedent to appoint male servant in female institutions. The contention of the learned" counsel for the parties seems to be correct. In female institutions of Azad Jammu and Kashmir, the prefernce should be given to the appointment of female servants unless there be some compelling reasons."
13. In a case reported as Mst. Niaz Perveen v. Mst. Rukhsana Shaheen and others (1995 SCMR 1844) it was observed as follows:- "It is unfortunate that within a period of one year transfer orders and cancellation of transfer orders have been made by the authorities in respect of two Lady Health Visitors. Such practice adversely affects the efficiency of the incumbents and also reduces their confidence and faith. The act of respondents Nos.2 to 4 has, indeed, left a bad taste in our mouths. The Service Tribunal has rightly deprecated such practice. We do not find any fault with its order. Leave to appeal is refused and the petition is dismissed accordingly."
14. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed. The judgment passed by the Service Tribunal on 12-4-2003, therefore, stands upheld. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.