' RAJA SAEED AKRAM KHAN, J.--- The supra titled appeal, with the leave of the Court, has been filed to assail the correctness of the judgment recorded by the Service Tribunal on 10-5-2012, whereby the appeal filed by the appellant herein has been dismissed.
2. The gist of the facts as emerged from this appeal is that vide transfer Order No,4091-93, dated 28-12-2010, the appellant, Abida Parveen, Primary Teacher, was transferred from Government Girls Primary School, Shahpur to Government Girls Primary School, F-2, District Mirpur, in place of Rukhsana Kausar, respondent No,2. Rukhsana Kausar was transferred from Government Girls Primary School, F-2, Mirpur to Girls Primary School Dhara Mir Shah in place of Samina Nawaz and from Girls Primary School Dhara Mir Shah, Primary Teacher, Samina Nawaz was transferred to Girls Primary School Shahpur in place of appellant, Abida Parveen. The appellant submitted her joining report in compliance of her transfer order on 1-1-2011 in Government Girls Primary School, F-2, Mirpur and she was allowed to join. The appellant filed a writ petition before the High Court on 11-1- 2011 for protection of transfer order dated 28-12-2010. On 12-1-2011, the High Court issued the status- quo order prevailing at the moment and on the same day, i.e, on 12-1-2011, on the orders of Prime Minister,' the department cancelled the transfer order dated 28-12-2010 from the date of its issuance. Feeling aggrieved by the order dated 12-1-2011, the appellant filed an appeal before the Service Tribunal. The Service Tribunal dismissed the appeal filed by the appellant vide impugned order dated 10-5-2012. Hence, this appeal.
3. Mr. Sadaqat Hussain Raja, Advocate, the learned counsel for the appellant, has argued that the order passed by the Service Tribunal is against law and facts of the case which is not sustainable in the eye of law. He argued that in pursuance of the transfer order dated 28-12-2010, the appellant joined her duties on 12-1-2011, therefore, there was no justification to recall the same. The cancellation of transfer order dated 28-12-2010 was without application of judicious mind. He further argued that the Service Tribunal failed to take into consideration the fact that the order was implemented and once the order has been acted upon it cannot be cancelled as laid down by this Court in a case reported as Azad Jammu and Kashmir University and 6 others v. Muhammad Arif and 3 others [2006 SCR 420]. He further submitted that the order which has been acted upon, there must be strong and cogent reasons for its cancellation. He submitted that the Service Tribunal failed to adhere to the law laid down by this Court while passing the impugned judgment. He contended that the Service Tribunal was not justified to dismiss the appeal on the ground of limitation as the appeal was filed immediately after coming into knowledge of the impugned order.
He stated that it is settled law that the limitation starts from the date of communication of the order, whereas the factual position is that the order impugned was not communicated and the same was issued secretly. He further submitted that in the memo. of appeal before the Service Tribunal, the appellant has shown sufficient reason for condonation of the delay but the Service Tribunal has failed to consider the same. Therefore, the judgment of the Service Tribunal dated 10- 5-2012 is not maintainable.
4. On the other hand, Sardar Muhammad Habib Zia, the learned counsel for the respondents, has supported the judgment passed by the Service Tribunal on 10-5-2012, while arguing that the same is perfect and in accordance with law, which cannot be disturbed. He argued that under section 9 of the AJ&K Civil Servants Act, 1976, a civil servant is bound to serve under the Government wherever he is transferred and posted. He further argued that a civil servant cannot claim to remain posted at a particular station for an indefinite period. He submitted that admittedly, the appeal was filed after the lapse of 113 days, therefore, the Service Tribunal has rightly dismissed the same on the ground of limitation. He contended that in para 'g' of the written statement, the department has given a satisfied reply to the ground taken by the appellant in the memo. of appeal.
5. We have heard the arguments of both the parties at length and also perused the record made available along with the impugned judgment dated 10-5-2012, passed by the Service Tribunal. The appellant is a Primary Teacher in the Education Department who was transferred from Girls Primary School Shahpur to Girls Primary School, F-2, Mirpur on 28-12-2010. It is also the part of record that she filed a writ petition before the High Court for seeking protection of the transfer order dated 28- 12-2010. It is also evident from the record that in pursuance of the order dated 28-12-2010, she submitted her joining report at the new place of posting. The transfer order dated 28-12-2010 was cancelled on 12-1-2011 after 15 days of its issuance. We are A conscious that the transfer of civil servants falls in the exclusive domain of the Authority but while passing the order it is the duty of the Authority to apply its judicial mind and the powers in this regard should not be exercised in an arbitrary manner. The order dated 28-12-2010, was acted upon and the appellant was working at new place of posting. The order dated 28-12-2010 was cancelled after a very short span of time and for its cancellation, no valid reason whatsoever has been assigned. The order dated 12-1-2011 itself shows that the same has not been passed in exigency of the service instead the same is passed with mala fide intention as has been held in a case reported as Raja Muhammad Manzoor Khan v. The Secretary Education and 8 others [2004 SCR 305], as under:-- ".... I have repeatedly laid down that transfer and posting is within the jurisdictional competence of the concerned authority and Courts cannot substitute their wisdom in such matters. The Courts can intervene only if transfer and posting is made by the departmental authority in colourable exercise of jurisdiction in disregard of law and the policy of the Government having the force of law...."
' Similarly, in the case titled Misbah Mushtaq v. D.P.I. Colleges, Azad Jammu and Kashmir, Muzaffarabad and 2 others 2012 PLC (C.S.) 1446 it has been held as under:--- "(5) I have heard the arguments, perused the record and also gone through the impugned judgment. It is admitted position that the petitioner has been posted/transferred in a female institution against the post of Computer Lab Assistant. It is also apparent from the record that in compliance of transfer order both the transferees have jointed their new places of posting and started performing their duties. Islamgarh is not a far-flung area of Mirpur but it is situated in District Mirpur. I could not find anything from the record that any element of political victimization is there. Even otherwise under section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976, every civil servant shall be liable to serve anywhere within or outside Azad Jammu and Kashmir in any post under the Government.. "
' In another case titled Mst. Nazia Tabassum v. Mst. Robina Latif (Civil P.L.A. No,80 of 2012 decided on 7-6-2012 it has been observed by this Court as under:--- "6. Although under section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976, a civil servant can be transferred anywhere and the transfer and posting is the sole prerogative of the Government, but this power must be exercised judiciously and not arbitrarily. The word "judicious" has been interpreted by this Court in a case titled Mst. Sabia Aziz v. Director Technical Education and 5 others 2012 PLC (C.S.) 538 in the following manner:---
(15) The word "judicious" ordinarily connotes the meaning of doing an act with wisdom and good sense. In the Black's Law Dictionary, it has been defined as "well considered, discreet and wisely circumspect". The Chamber 20th Century Dictionary has assigned it the meanings of "according to sound judgment possessing sound judgment; discreet", whereas in the Webster's New Explorer Encyclopaedic Dictionary definition of this word is "having exercising, or characterized by sound judgment; discreet.
' In the Qaumi English-Urdu Dictionary published by the {{URDU TEXT}} following Urdu meanings are assigned to the words "Judicious" adj. {{URDU TEXT}} ' Thus the consensus of meanings assigned to the word 'Judicious' by all the dictionaries conveys and connotes passing of an order taking an action after due application of mind in consideration of all the relevant facts, laws and rules wisely in good sense in exclusion of arbitrariness, favouritism; nepotism or any type of influence or pressure."
' In the same judgment the Court has further held as under:-- " Broadly speaking the exercise of powers in judicious manner is synonymous to like a judicial judgment, which means to do justice between the concerned interested/affected and the contestant parties keeping the scale of justice balance and even without tilting it into favour of any one of parties."
6. This Court has time and again held that the authority should exercise its discretion in a judicious manner but in the instant case, the authority failed to adhere to the dictum laid down by this Court which is highly deplorable. Such like order cannot be allowed to remain in the field. Normally, this does not interfere with the orders passed by the competent authority in exigency of service after due application of mind but if the order seems to be illegal ab initio void the Court always intervenes. At this stage, we painfully like to observe that we do not expect from the Chief Executive of the State to pass such like orders. In a number of pronouncements of this Court, it has been constantly held that normal tenure of stay at one place will not be less than three years. The wisdom behind it is that a civil servant can perform his duties without any fear of successive transfers. We have observed that such practice of successive transfers should be discouraged and this practice cannot be allowed more to pass an order which has no legal footing. However, this Court does not debar the authority to pass the transfer order which the authority deems fit necessary in the exigency of the service even before the normal period of stay. Our this view finds support from the case reported as Secretary Education, N.-W.F.P., Peshawar and 2 others v.
Mustamir Khan and others (2005 SCMR 17), wherein it has been observed as under:--- "5. We are conscious of the fact that transfer of any Government servant can be made by the Competent Authority in the exigency of service and public interest. No Government servant has a legal right to remain posted at a particular place but where transfer order is mala fide and for extraneous consideration to accommodate some blue-eyed chap is justiciable. In such an eventuality the matter would squarely fall within jurisdictional domain of learned Service Tribunal.
There is no cavil with the proposition that where orders passed by the Departmental Authority are male fide, the Service Tribunal has jurisdiction to interfere and set aside the order...."
' Similarly, in a case titled Rabia Akram v. Azad Government and others (Civil Appeal No,108 of 2012 decided on 11-10-2012), it has been observed by this Court as under:--
(5) We have heard the arguments of the learned counsel for the parties, perused the judgment and other record made available. Admittedly, the appellant was transferred after lapse of a period of three years in Girls Degree College, Kotli vide notification dated 28-11-2011. It is also admitted that the private respondent has been transferred after a period of three years stay at one station. A perusal of the notification of transfer reveals that the appellant has not been discriminated. This Court has held in a case titled Misbah Mushtaq v. D.P.I. Colleges, Azad Jammu and Kashmir, Muzaffarabad and 2 others 2002 PLC (C.S.) 1446 that normal tenure of a civil servant at one station must be not less than three years. However, in exigencies of service, a civil servant can be transferred before three years, Time and again, this Court and the Supreme Court of Pakistan have held that transfer of a civil servant falls within the exclusive domain of the Government. The Court has only to see whether the powers enjoyed by the Government have been exercised in a judicious manner or not...."
7. The cancellation order, passed after a short span of time itself supports the contention of the appellant that although, the same was passed in the exigency of service but the reason advanced has no nexus with the spirit and object of the Rules governing the transfer of a civil servant, especially, when the transfer order dated 28-12-2010 was implemented and acted upon. Such-like attitude is undesirable which cannot be permitted or protected further especially the Authority who has passed the order is the Chief Executive of the State who is supposed to protect the rights of the people and not to do injustice with any citizen of the State. It is the duty of the Secretary concerned to place the correct picture before the Chief Executive of the State while briefing that in what manner he has to exercise the authority. Moreover, at this stage, it has been brought in our notice that vide notification dated 3-1-2013, the Government has formulated the new transfer policy according to which the normal tenure shall not be less than two years at one place. This case is worst example of violation of the transfer policy formulated by the Government itself. Once an order issued has been acted upon, it cannot be rescinded or recalled unless very strong grounds are available. The impugned transfer order dated 28-12.2010 itself speaks that the same has been passed without assigning any reason. In this regard reliance can be placed on a case reported as Azad Jammu and Kashmir University and 6 others v. Muhammad Arif and 3 others [2006 SCR 420], wherein it has been held as under:--- "4. .... It has repeatedly been held by this Court that furnishing of an opportunity of hearing is a right of the holder of a civil post even if the statute under which he has been appointed does not contain a specific provision. It has also been repeatedly held by this Court that once an order issued has been acted upon, it cannot be rescinded or recalled unless very strong grounds are available...."
8. While coming towards the question of limitation, it is evident from the record that a writ petition was filed by the appellant for seeking protection of transfer order dated 28-2-2010 and the status quo order was issued. When the transfer order dated 28-12-2010 was cancelled and the order dated 12-1-2011 was issued, there is nothing on the record that the same was communicated to the appellant. The cogent reason in respect of limitation has been given in the memo. of appeal before the Service Tribunal supported by an affidavit. It is also admitted position that neither any specific rebuttal came on record from the other side to meet the grounds taken by the appellant, nor a counter affidavit was filed in this regard. The reply submitted by the official respondents before the Service Tribunal is evasive in nature. It is a settled principle of law that when some fact is alleged and supported by an affidavit, if, there is no IC rebuttal from the other side by filing counter affidavit, the same shall be deemed admitted. We agree with the argument of the learned counsel IC that the limitation starts from the date of communication of order. The respondents failed to substantiate that the order was duly communicated to the appellant, therefore, we can safely hold that the Service Tribunal was not justified to dismiss the appeal on the ground of limitation.
' Resultantly, this appeal is accepted, while setting aside the order passed by the Service Tribunal dated 10-5-2012 and declaring that the D order dated 12-1-2011 has been issued without lawful authority and is void ab initio.