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Official Citation: 1971 PLD 576
Court / Jurisdiction: Sindh High Court
Year of Decision: 2014
Decision Date: 2014-10-16
Parties: Mrs. ZEENAT AHMED vs FEDERATION OF PAKISTAN through Secretary Ministry of Defence and others
This judicial decision was delivered by the Sindh High Court on 2014-10-16. The matter involves proceedings between Mrs. ZEENAT AHMED and FEDERATION OF PAKISTAN through Secretary Ministry of Defence and others, officially reported as 1971 PLD 576. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 1971 SC 576
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman, Syed Hassan Azhar Rizvi Title:Mrs. ZEENAT AHMED vs FEDERATION OF PAKISTAN through Secretary Ministry
of Defence and others Case No.: Constitutional Petition No.D-3488 of 2014 Date of Judgment:2014-10-16 Reported As: 2015 PLC (C.S.) 719 Result: application granted Judgment ORDER AZIZ-UR-REHMAN J.--- By means of this application under Order VII, Rule 11 read with section 151, C.P.C. Along with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 bearing C.M.A. No.20214 of 2014, the respondent No.5 viz. Muhammad Younus Khan Director Military Lands and Cantonments, Karachi Region, Karachi, seeks rejection of the present Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed by the petitioner viz. Mrs. Zeenat Ahmed wife of Dr. Ahmed Hussain. The prayer sought in the application [C.M.A. No.20214 of 20141 reads as follows:- "It is prayed on behalf of the applicant/respondent No.5 that this Hon'ble Court would be pleased to take up the issue of jurisdiction and maintainability of the petition as a first step before proceeding further and decide the same in accordance with law and may further reject the petition for want of jurisdiction, on the basis of facts and grounds, mentioned in accompanying supporting affidavit." 2. On 1-9-2014 when the above case came-up before the court, then the following order was passed:--- 1-9-2014 Mr. Khalid Javed Advocate for the petitioner Mr. M Arshad Khan Tanoli Advocate for respondent No.4. Messrs M.M. Aqil Awan and Danish Rasheed Advocates for respondent No.5. (1) Urgent .
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(2) Learned Counsel for the petitioner supplied copy of this application to learned counsel for respondents Nos.4 and 5, who waives notice of the same. 3 to 8. All pending applications shall be heard on 9-9-2014 when the matter is already fixed but application listed at Sr. No.4 bearing Miscellaneous No.20214 of 2014 shall be heard first. Interim order, passed earlier, to continue till next date of hearing. 3. Thereafter, all the learned counsel for the respective parties and learned Standing counsel, on 9- 9-2014 and 23-9-2014, advanced their arguments in length on the point+ of maintainability of the instant petition and upon conclusion of their arguments, order was reserved. 4. Mr. M.M. Aqil Awan, learned counsel for the respondent No.5 vehemently argued that the instant Petition as framed and filed is not maintainable under law and also in view of the facts and circumstances of the case. According to the learned counsel, inter alia, the same is barred under Article 212[2] of the Constitution of Islamic Republic of Pakistan, 1973. 5. Mr. M.M. Aqil Awan, while elaborating his arguments strenuously contended that the question of posting and transfer of a 'civil servant' is a question purely relatable to the 'terms' and 'conditions' of the service and the same, no doubt, falls within the exclusive jurisdiction of the Federal Services Tribunal [in short F.S.T.] established under Section 3 of the Service Tribunals Act, 1973 [Act No.LXX of 1973]. Per learned counsel, it is the Federal Service Tribunal which under law can exercise exclusive jurisdiction in respect of the matters relating to the 'terms' and 'conditions' of service of a civil servant as well as the matters connected therewith or ancillary thereto. 6. Learned counsel, while advancing his argument also focused our attention towards C.P.No.D-877 of 2014 [Mrs. Zeenat Ahmed v. Federation of Pakistan and others], filed by the present petitioner on 22nd February, 2014 and contended that this Court, of course, had earlier assumed the jurisdiction in respect of the transfer of the petitioner in aforesaid C.P.No.D-877 of 2014 [Mrs. Zeenat Ahmed v. Federation of Pakistan and others] but manifestly it was merely due to the reason that at the relevant time the Federal Service Tribunal [FST] was lying vacant and dysfunctional for want of the appointment of Chairman thereof. Nevertheless, per the aforesaid judgment passed by the Hon'ble Division Bench of this Court on 12-6-2014, respondents' stand to the effect that laying a claim to a particular post by a civil servant is not a vested right as has been held/recognized by this Court from time to time including the aforesaid judgment passed by the Hon'ble Division Bench of this court. Moreover, it was also observed in para 14 of the aforesaid judgment that the present petitioner is not claiming any 'vested against any particular post rather she is seeking implementation of the 'wedlock policy'. 7. Mr. M.M. Aqil Awan, next argued that pursuant to the aforesaid judgment of 12th June, 2014 and during the pendency of the instant petition [i.e. C.P.No.D-3488 of 2014 - Mrs. Zeenat Ahmed v. Federation of Pakistan and others], filed on 1-7-2014, the situation has now drastically undergone change. Per learned counsel, the Chairman of the F.S.T. Has already been appointed vide Notification No.F.38[1]/2014- A.11 on 7th August, 2014 issued by the Government of Pakistan, Law, Justice and Human Rights Division Islamabad. Perusal of the aforementioned Notification shows that Mr. Justice [Retd.] Shaikh Ahmed Farooq has already been appointed as a Chairman of the FST. Per learned counsel, the learned Chairman has also assumed the charge of the office i.e. As a Chairman of Federal Service Tribunal [FST]. Inter alia in view of this position, the instant petition is also incompetent in law. 8. In the background of the instant petition, learned counsel further submitted that the present petitioner viz. Mrs. Zeenat Ahmed was earlier transferred from the post of Director Military Land, Cantonment Karachi Region, Karachi to the post of Director Finance and Planning [M&P] Headquarters Rawalpindi, however, the said Transfer Order No.101/19/PS/ML&C dated 20-2-2014 issued by Director General, Ministry of Defence [ML&Deptt] Rawalpindi, was challenged by way of filing a Constitutional Petition No.D-877 of 2014 [Mr. Zeenat Ahmed v. Federation of Pakistan and
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others) before this Court solely on the ground of 'wedlock policy' of the Government [O.M. No.10/30/97-R-2 dated 13-5-1998 and 17-12-1999] as claimed, the petitioner's husband was/is posted at Karachi in his capacity as a Senior Medical Officer, Health Department Government of Sindh. 9. The transfer of the petitioner as then claimed was violative of the 'Wedlock Policy' of the Government. The 'Wedlock Policy' issued by the Government, needless to say, was/is aimed to facilitate posting of husband and wives at the same station so also the posting of un-married female civil servants at the place of residence of their parents/families. Upon full-fledged hearing, the said Constitutional Petition was found maintainable ex-facie on the basis of a binding 'Wedlock Policy' and consequently the petitioner's Constitutional Petition No.D-877 of 2014 [Mr. Zeenat Ahmed v. Federation of Pakistan and others] was 'disposed of vide judgment dated 12-6-2014 in the following terms:--- 16. ................................................................................................................................ (a) The impugned transfer order dated 20-2-2014 is set aside in view if the wedlock policy. (b) The setting aside of impugned transfer order will not restrict or prevent the competent authority to transfer the petitioner to any other post commensurate to her grade in Karachi. [Underlining is ours] (c) Pending applications are also disposed of accordingly." 10. Per Mr. M.M. Aqil Awan, the official respondents while acting in the light of the aforesaid judgment as well as in compliance thereof, having no other alternative but to pass a fresh Order No.101/19/PS/ML&C dated 13-6-2014 [Annexure 'C' to the MoP] whereby the present petitioner was posted/transferred as Director Finance and Planning [F&P] Karachi. 11. Pursuant to and in compliance with the aforesaid transfer order, the petitioner viz Mrs. Zeenat Ahmed through her joining report on 18-6-2014 [Annexure 'H' to the MoP], assumed the charge of Director of F&P at Karachi. The relevant posting/transfer Order No.101/19/PS/ML&C dated 13-6-2014 and joining report of Mrs. Zeenat Ahmed No. Nil dated 18-6-2014 are respectively reproduced herein below:--- (A) "IMMEDIATE/BY FAX No. I01/19/PS/ML&C Government of Pakistan Ministry of Defence (ML&C Deptt.) Rawalpindi, the 13th June, 2014 To All Concerned Officers. Subject: POSTINGS/TRANSFERS OFFICERS OF ML&C DEPTT. 1. It has been decided to cancel this HQ's even numbered letter dated 20-2-2014 on the subject and to make the following postings/transfers with effect from dates shown against each. (1) Mr. Muhammad Younus Khan Director (F&P) is transferred/posted as DML&C Karachi Region vice Ms. Zeenat Ahmed transferred. He will join his new assignment on 17-6-2014. (ii) Ms. Zeenat Ahmed DML&C Karachi Region is posted/transferred as Director (F&P) Karachi. She will join her new assignment on 17-6-2014. The office of the Director (F&P) has been shifted to Karachi in view of her compassion to stay at Karachi. 2.. The charge shall transfer to the assigned officers on the dates mentioned against each above. Proper handing/taking over will be carried out. The dates (forenoon/afternoon) of relinquishment/assumption of duties by the officers concerned may please be reported to this HQ strictly in accordance with the dates given. Sd/- Maj Gen Director General (Mazhar Saleem Khan) Copy to:---
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1. All DsML&C 2. DS(Army-B) Min of Def 3. S.O.D-6(A-VI) Min of Def" (B) "No. Nil, Dated: 18th June, 2014 To, The Director-General Military Lands and Cantonments. Rawalpindi Sub:- POSTING/TRANSFERS OFFICERS OF ML&C DEPTT. Ref: Order No.101/19/PS/ML&C dated 13-6-2014 HQ ML&C Deptt. Rawalpindi. Under protest and without prejudice to my legal right, I submit my joining report on 18-6-2014 in the forenoon from my house as there is no setup/office of Director F&P and other paraphernalia/staff for Director F&P at Karachi, in compliance of order referred to above which was first time disclosed to me on 17-6-2014 at 3.55 p.m. By Mr. Muhammad Younis Khan on his arrival at RHQ Karachi. Sd/- Zeenat Ahmed Director F&P House # 61/2, Khayaban-e-Ittehad Phase 6 DHA, Karachi" 12. Likewise, Muhammad Younis Khan [respondent No.5] also assumed the charge of the office of Director Military Lands and Cantonments, Karachi, through his joining report of 17-6-2014. The joining report of Mr. Muhammad Younis Khan dated 17-6-2014 is also reproduced herein below:--- "MOST immediate/By Fax By Email Government of Pakistan Ministry of Defence, (ML&C Deptt.) Office of the Director Military Lands and Cantonments Karachi Region, Karachi No. 2/44/DK/Vol : 1/Estt/ Dated the 17th June, 2014 To, The Director-General, Military Lands and Cantonments Deptt. Ministry of Defence, Pak Sectt-II, Rawalpindi Subject: POSTING/TRANSFER OFFICERS OF ML&C DEPTT. In pursuance of the order issued vide Govt. Of Pakistan, Ministry of Defence ML&C Department Rawalpindi letter No.101/19/PS/ML&C, dated 13-6-2014. The undersigned has assumed the charge of the office of the Director, Military Lands and Cantonments, Karachi Region Karachi as DML&C Karachi on 17-6-2014 A/N. [Underlining is ours]\ Sd/- (MUHAMMAD YOUNUIS KHAN) Director Military Lands and Contoments Karachi Region, Karachi Copy to :- 1. All DML&Cs 2. All MEOs/CEOs in Karachi Region 3. The Controller of Accounts (ISO's) Rwp 4. The Manager, National Bank of Pakistan (Public Fund A/C No.38-4) 5. Master File"
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13. Mr. M.M. Aqil Awan, learned counsel for the petitioner further contended that despite submission of joining report by the petitioner on 18-6-2014 as Director [F&P] at Karachi, the present petitioner has not only filed this 2nd Petition but has also got 'ad-interim order' on 6-8-2014 [i.e. After about a period of two months of the Judgment, passed by the Hon'ble Division Bench of this Court, on 12-6-2014 in C.P.No.D-877/2014 - Mrs. Zeenat Ahmed v. Federation of Pakistan and others]. Per Mr. M.M. Aqil Awan, the present petitioner in fact had again tried to restore 'status-quo ante' though the same was/is not possible under the law. The 'ad-interim order' passed on 6-8-2014 in the present Petition reads as follows:--- 6-8-2014 Mr. Khalid Javed, Advocate for petitioner (1) Urgency . (2) Exemption granted subject to all just exceptions. (3-4). Learned counsel for petitioner states that the petitioner was working as Director Military Lands and Cantonment, Karachi Region was illegally transferred vide letter dated 20-2-2014 by respondent No.4. The petitioner challenged the said transfer order by filing a C.P. Bearing No.D-877 of 2014 in this court and by a detailed judgment passed on 12-6-2014 the petition was admitted and disposed of in the following terms:--- "16. ............................................................................................................. (a) The impugned transfer order dated 20-2-2014 is set aside in view of the wedlock policy. (b) The setting aside of impugned transfer order will not restrict or prevent the competent authority to transfer the petitioner to any other post commensurate to her grade in Karachi. (c) Pending applications are also disposed of accordingly. Subsequent thereof respondent No.4 issued a back-dated letter in order to flout the judgment of this court. The said letter was received from respondent No.4 by regional headquarters, Karachi region on 17-6-2014 as is apparent from Annexure 'C' with the memo. Of petition [Available at page 67 of the court file] which shows that the respondent No.4 posted and transferred the petitioner as Director [F&P] Karachi which post, per learned counsel, does not exist at regional headquarters, Karachi at the time of passing of judgment referred to above. Learned counsel for petitioner further contends that as per the provisions of Civil Servants (Appointments, Promotions and Transfer) Rules, 1973 the respondent No.4 is not competent to pass order for transfer and posting of an officer of Grade-20 and above. As per learned counsel, Prime Minister of Pakistan, on the recommendations of the Central Selection Board, can only transfer an officer of Grade-20 and above. Per learned counsel the impugned letter dated 13th June 2014 [Annexure 'C' with the memo. Of Petition] is absolutely unlawful, illegal and mala fide on the face of record. Issue notice to the respondents as well as DA for 25-8-2014. Till then operation of the impugned letter dated 13th June, 2014 transferring the petitioner as Director [F&P] issued by respondent No.4 is suspended." [Underlining is ours]. 14. From perusal of Order dated 06th August, 2014, it is evident that the impugned letter/order dated 13th June, 2014 issued by respondent No.4 was suspended only to the extent of transfer of the petitioner. 15. Not only this, against the impugned order dated 13-6-2014 [Annexure 'C' to MoP.], the present petitioner has already availed the remedy of 'Departmental Representation' i.e. On 19-6-2014, which remedy, per learned counsel is knowingly an efficacious and suitable 'alternate remedy' before the Hon'ble Prime Minister of Pakistan. Being so, the instant petition besides afterthought, misconceived is not maintainable inter alia in view of the legal position that under law no one can be 'vexed twice'. The impugned order passed on 13-6-2014 [Annexure 'C' to MoP] has not only been acted upon by the petitioner on 18-6-2014 but the same has also been assailed by the petitioner through
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filing of a 'Departmental Representation' before the Hon'ble Prime Minister of Pakistan on 19-6-2014. According to Mr. M.M. Aqil Awan, the drill of filing of the present petition is nothing but a calculated afterthought attempt for re-opening the 'past' and 'closed' issue of transfer of the petitioner. Per learned counsel, the line of action of the petitioner is not only zigzag but also based on pseudo pleas. 16. The petitioner, instead of allowing the 'Departmental Authority' reasonable time for deciding her 'Departmental Representation', has evidently approached this Court with un-cleaned hands, plus malafidely through the instant Constitutional Petition. Per learned counsel, if, some delay suppose for the sake of arguments occurs in deciding the 'Departmental Representation' of the petitioner, then also in such eventuality, the maximum relief permissible under law is the relief 'of 'mandamus' to the 'Departmental Authority' for deciding the 'Departmental Representation' of the petitioner swiftly and in accordance with law only. 17. Mr. M.M. Aqil Awan, learned counsel for respondent No.5 in support of his contention placed reliance in the following case-laws:--- (i) Messrs Pakistan State Oil Company Limited v. Wafaqi Mohtasib (Ombudsman) and another [2001 PLC (C.S.) 907]. (ii) Superintending Engineer, Highways Circle, Multan and others v. Muhammad Khurshid and others [2003 SCMR 1241]. (iii) Amanullah Khan (A. Khan) v. Chotey Khan [1978 SCMR 14]. (iv) Managing Director (Power), WAPDA and others v. Muhammad Luqman [2003 PLC (C.S.) 526]. (v) Syed Najmul Hassan Wasti v. Province of Sindh Through Secretary Excise and Taxation and 2 others [2010 PLC (C. S.) 224]. (vi) Dr. Younis Asad Sheikh v. Province of Sindh Through Secretary, Health Department Government of Sindh [2009 PLC (C. S.) 735]. (vii) Gulbat Khan v. Water and Power Development Authority [1992 SCMR 1789]. (viii) Mst. Riaz Anjum and others v. Mrs. S. Maqool and others [1999 SCMR 912]. (ix) Government of Punjab Through Secretary, Labour and Manpower, Civil Secretariat and others v. Shahid Mehmood Butt [2006 SCMR 443]. (x) Punjab Small Industries Corporation (PSIC) v. Sh. Abdus Salam and others [2008 SCMR 583]. (xi) Miss Rukhsana Ijaz v. Secretary Education, Punjab and others [1997 SCMR 167]. (xii) Water and Power Development Authority and others v. Commissioner Hazara Division and others [1992 SCMR 2102]. (xiii) Contempt Proceedings Against Chief Secretary, Sindh and others [2013 SCMR 1752 (1867). 18. Mr. M. Arshad Khan Tanoli , learned counsel for respondent No.4, Mr. Abdul Sadiq Tanoli, learned Standing counsel while, adopting the arguments of Mr. M.M. Aqil Awan, learned counsel for the respondent No.5 also prayed for the dismissal of the Petition with 'cost'. According to the learned counsel, the instant Petition beside misconceived, misleading is in-competent in law as the same has been filed by the petitioner much after taking charge of the post of Director F&P at Karachi [i.e. On 18-6-2014] and filing of the 'Departmental Representation' before Hon'ble Prime Minister of Pakistan filed sometime in June, 2014. 19. In view of this position as well, the impugned transfer order of 13th June, 2014 [Annexure 'C' to the MoP] passed in the light and pursuant to passing of judgment of 12th June, 2014 in C.P. No.D-877 of 2014 by the Division Bench of this court, is neither liable to be disturbed nor otherwise, could be declared illegal and/or of no legal effect. Per learned counsel, layving a claim to a particular post by any 'civil servant' under law is not his/her vested right. Lastly, all the learned counsel urged that impugned transfer/posting order dated 13-6-2014 [Annexure 'C' to the MoP] is absolutely valid and proper as such, under the facts and circumstances of the present case, the same is not opened to be questioned muchless under the discretionary Constitutional Jurisdiction of this court under
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Article 199 of the Constitution of Pakistan, 1973. In the end of arguments they all prayed for dismissal of the Petition as being frivolous and incompetent in law. 20. Conversely, Mr. Khalid Javed, learned counsel for the petitioner vehemently argued that the application under Order VII, Rule 11 read with section 151, C.P.C. Along with Article 199 of Constitution of Islamic Republic of Pakistan, 1973 bearing C.M.A. No.20214 of 2014 filed by the respondent No.5 besides, misconceived, misleading, meritless is not maintainable in law. According to the learned counsel, the provisions of Order VII, Rule, C.P.C. Are not applicable to the proceedings filed under Article 199 of the Constitution. Per learned counsel, Article 212[2] of the Constitution is not applicable under the given facts and circumstances of the instant Petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as such the same is quite maintainable and also deserves to be granted as prayed. 21. Mr. Khalid Javed, learned counsel for the petitioner also argued that the shifting/transfer of Office/Post of Director [F&P] to Karachi, by the Director-General Military Lands and Cantonments Department, Ministry of Defence [ML&C Deptt.] i.e. Respondent No.4 is not valid and proper. Be that as it may, the impugned order dated 13-6-2014 [Annexure 'C' to the MoP] is nothing but a crystal clear case of mala fide thus liable to be declared as illegal, coram non-judice and without any bona fide authority. The transfer of the petitioner even to the post of Director [F&P] Karachi, is illegal and tainted with mala fides. 22. Mr. Khalid Javid, further urged that by mere appointment of a Chairman of Federal Service Tribunal, the Tribunal does not become complete functional. Elaborating his arguments, learned counsel further submitted that in terms of section 3 of the Service Tribunals Act, 1973 [Act No.LXX of 1973], the Tribunal ought to consist of a Chairman and such other number of Members not less than three. Accordingly, per learned counsel for the petitioner, despite the appointment of the Chairman of FST, in fact till date, there exists no Federal Service Tribunal [FST] much-less, in the eyes of law. 23 The only proper, adequate, efficacious and effective remedy per Mr. Khalid Javid, is available to the petitioner was/is the remedy by way of filing of the instant Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The 'Departmental remedy' though available and has also been availed by the petitioner, however, does not bar jurisdiction of this court under Article 199 of the Constitution, 1973. Even the observation of Hon'ble Division Bench of this court in the judgment of 12th June, 2014 passed in C.P. No.D-877 of 2014 filed by the present petitioner viz. Mrs. Zeenat Ahmed, to the effect that 'the setting aside of impugned transfer order will not restrict or prevent the competent authority to transfer the petitioner to any other post commensurate to her grade in Karachi', per Mr. Khalid Javid, does not absolutely entitle the official respondents to transfer the petitioner. 24. The averments of the petitioner in the present Memo. Of Petition [in short MoP] as well as in the early round of litigation to the effect that matter in dispute involves/involved the questions that are relating to the 'terms' and 'conditions' of service and do fall within the jurisdiction of Federal Service Tribunal [FST], in any event, per learned counsel, do not make applicable the principle of 'estopple' or bar the jurisdiction of this court and/or otherwise renders the instant petition as in-competent in law. Lastly, Mr. Khalid Javid prayed for the dismissal of the Application bearing C.M.A. No.20214 of 2014 for rejection/dismissal of the instant Petition. 25. Mr. Khalid Javid, learned counsel for petitioner in support of his contentions placed reliance on the following case-laws:--- (i) Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others [1994 SCMR 826]. (ii) Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi [PLD 1965 SC 698]. (iii) Suo Motu and Human Rights Cases [PLD 2011 SC 277].
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(iv) Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others [PLD 2013 SC 195]. (v) Zahid Akhtar v. Government of Punjab Through Secretary, Local Government and Rural Development, Lahore and 2 others [PLD 1995 SC 530]. (vi) Syeda Adeeba Anjum v. Secretary Government of Punjab Education Department Lahore and another [2004 PLC (C.S.) 622] (vii) Muhammad Zia-ul-Haq v. Secretary to Government of The Punjab, Livestock and Dairy Development Department, Lahore and 4 others [2003 PLC (C.S.) 1322]. 26. The case-laws cited by Mr. Khalid Javid in support of his contentions are as follows:--- (a) Muhammad Zia-ul-Haq v. Secretary to Government of The Punjab, Livestock and Dairy, Development Department, Lahore and 4 others [2003 PLC (C.S.) 1322] wherein regarding 'wedlock policy' it was held as under:--- "7. It is true section 9 ibid has an overriding effect on all circulars notifications and policies. However, if any policy of the Government enunciated in its circular has to be deviated from good reasons have to be given. Undoubtedly, the policy of the Government is that spouses have to be allowed to work at the same station to avoid hardship. On the other hand, section 9 ordains that…
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