PLJ 2013 SC (AJ&K) 131
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present:
Muhammad Azam Khan, C.J.
NADEEM AKHTAR,
SENIOR ACCOUNTS CLERK, ELECTRICITY DEPARTMENT, OPERATION DIVISION,
MIRPUR--Appellant
versus
SARDAR MUHAMMAD
KHALIL KHAN, ACCOUNTS CLERK, EDO DIVISION BAGH, AJ&K & 2
others--Respondents
C.P.L.A. No. 138
& Civil Misc. No. 181 of 2011, decided on 25.1.2012.
(Petition for
leave to appeal from the judgment of the Service Tribunal dated 20.10.2011 in
Service Appeal No. 193 of 2011).
Rules of
Business, 1985--
----Scope--Leave
to appeal--Transfer case--Territorial Jurisdiction of Chief Engineer--Held:
Petitioner was serving in the Electricity Department Electricity Department has
been divided into two divisions/zones and there were two Chief Engineers; one
for north division and the other for south division of AJ&K--In the Rules
of Business, 1985, the Chief Engineers can exercise jurisdiction within their
respective territorial jurisdiction and can pas transfer orders to and from
within their territorial jurisdiction--If any employee is to be transferred
from one zone to the other, which is not in the control of any Chief Engineer,
such order is to be passed by the Government--New post of Chief Engineer
(South) was created and two separate divisions of Electricity Department; one
for Muzaffarabad and Poonch
(North) and the other for Mirpur, Kotli
and Bhimber (South) were established--Both the Chief
Engineers can transfer the employees from within their respective jurisdiction
and if any transfer order of an employee is to be passed outside one's
jurisdiction, then such order under the Rules of Business, 1985 is to be passed
by the Government--Such order was violative of the
Rules of Business, 1985--The Service Tribunal has correctly resolved the
proposition--No substantial question of public importance is involved in the
case--Petiton for leave to appeal dismissed. [P. 133] A
Sardar Muhammad Azam, Advocate for Appellant.
Sardar Shahzad Ahmed, Advocate for Respondents.
Date of hearing:
23.1.2012.
Order
The captioned
petition for leave to appeal as well as the application for stay order, arise
out of an order passed by the Service Tribunal on 20.10.2011, whereby Service
Appeal No. 193/2011 has been accepted and the order dated 24.2.2011 has been
declared to have been passed against the Rules of Business, 1985, and was set
aside.
2. Facts necessary for disposal of the petition
for leave to appeal are that the petitioner was serving as Accounts Clerk in
the Electricity Department, Operation Division Bagh.
Vide order dated 24.2.2011 he was transferred to Mirpur
and Respondent No. 1 was transferred in his place. Feeling aggrieved Respondent
No. 1 filed Appeal No. 193 in the Service Tribunal on 8.3.2011. The Service
Tribunal accepted the appeal and set aside the transfer order dated 24.2.2011
on the ground that it is against the provisions of Rules of Business, 1985.
3. Sardar Muhammad Azam, advocate for the petitioner, argued that the judgment
of the Service Tribunal is against law. The petitioner and real respondent are
civil servants serving in the Electricity Department. It is the prerogative of
the authority to transfer the civil servants anywhere in Azad Jammu &
Kashmir. The transfer order of the petitioner was issued after a considerable
time of his posting. The order was passed by the Chief Engineer who is
appointing authority of Senior Accounts Clerks. The Service Tribunal failed to
apply the correct law. The learned counsel further argued that real respondent
has served whole of his service at Mirpur station. In
spite of being appointed at Bagh he was ordered to
remain present at Mirpur. This all is being done
under the influence of respondent. He further argued that the Service Tribunal
failed to consider the objections filed by the petitioner, herein.
4. While controverting
the arguments of the counsel for the petitioner, Sardar
Shahzad Ahmed, counsel for the respondent, argued
that the judgment of the Service Tribunal is perfectly legal. There are two
Chief Engineers in the Electricity Department; one for North and the other for
South Division. Both can issue transfer order of their subordinates within
their respective territorial jurisdiction. The Chief Engineer (South) has no
jurisdiction to transfer a clerk from South to North Division. It is only the
prerogative of the Government. The transfer order passed by Chief Engineer
(South) is violative of the Rules of Business, 1985.
5. I have heard the learned counsel for the
parties and perused the record. It is evident from the record that the
petitioner was serving as Senior Accounts Clerk in the Electricity Department,
Operation Division Bagh. Vide transfer order dated
24.2.2011 he was transferred to Mirpur. It is also an
admitted position that the Electricity Department has been divided into two
divisions/zones and there are two Chief Engineers; one for north division and
the other for south division of Azad Jammu & Kashmir. In the Rules of
Business, 1985, the Chief Engineers can exercise jurisdiction within their
respective territorial jurisdiction and can pas transfer orders to and from
within their territorial jurisdiction. If any employee is to be transferred
from one zone to the other, which is not in the control of any Chief Engineer,
such order is to be passed by the Government. The order dated 24.2.2011,
whereby Respondent No. 1 and the petitioner have been transferred from Mirpur to Bagh and Bagh to Mirpur, is admittedly issued by Chief Engineer, Electricity
Department Mirpur. Admittedly District Bagh is within territorial jurisdiction of Chief Engineer,
Electricity Department (North) and Mirpur is within
the jurisdiction of Chief Engineer, Electricity Department (South). Through
order dated 3.3.2011 new post of Chief Engineer (South) was created and two
separate divisions of Electricity Department; one for Muzaffarabad
and Poonch (North) and the other for Mirpur, Kotli and Bhimber (South) were established. Both the Chief Engineers
can transfer the employees from within their respective jurisdiction and if any
transfer order of an employee is to be passed outside one's jurisdiction, then
such order under the Rules of Business, 1985 is to be passed by the Government.
The order was admittedly passed by Chief Engineer (South) and Respondent No. 1
was transferred in the area which is in the jurisdiction of Chief Engineer (North).
Such order was violative of the Rules of Business,
1985. The Service Tribunal has correctly resolved the proposition. No
substantial question of public importance is involved in the case, therefore,
this petition for leave to appeal merits dismissal. The same is dismissed with
no order as to the costs.
Since the
petition for leave to appeal has been dismissed, the application for stay order
is also dismissed.
(A.S.) Petition
dismissed
