' MOHAMMAD AZAM KHAN, CJ. --- The instant appeal with the leave of the Court arises out of an order passed by the Service Tribunal on 30.1.2012, hereby service appeal No, 147 of 2012 has been dismissed in limine.
2. The appellant was serving as Senior Computer Instructor in Girls Higher Secondary School, Miani Bandi. Vide Notification dated 23rd January, 2012, she was transferred to Girls High School Narul and respondent No, 7 was transferred in her place from the said school. After a period of only four days, on 27.1.2012 through another notification, the aforesaid notification was ordered to be kept in abeyance. The appellant challenged the Notification dated 27.1.2012 by way of an appeal in the Service Tribunal. The service Tribunal vide its order dated 30.1.2012 dismissed the appeal in limine on the ground that the notification dated 27.1.2012 is not a final order, therefore, no appeal is competent against it.
3. Mr. Sadaqat Hussain Raja, the learned counsel for the appellant, argued that the judgment of the Service Tribunal is against law and the record. The departmental authorities passed order in an arbitrary manner. The transfer order/notification dated 23.1.2012 was issued on the ground of period of stay. The appellant is resident of municipal limits of Muzaffarabad city. She remained out of municipal limits for a period of four years and respondent No, 7, Sara Farooq, has been serving within municipal limits since 15.9.2006. The order/notification dated 23.1.2012 was kept in abeyance with mala fide intention on political considerations. After the issuance of transfer notification, the appellant joined her new place of posting and was allowed to join on 26.1.2012. Once the order has been implemented, it cannot be cancelled/suspended. The learned counsel submitted that it is correct that the appeal is competent against a final order, but- the order impugned before the Service Tribunal is in fact a final order. The Service Tribunal incorrectly declared that it is not a final order. The order/notification dated 27.1.2012 is in fact cancellation of transfer order, but it has been couched as an order for keeping in abeyance the original order to defeat the provisions of Section 4 of the Service Tribunals Act, 1975. He submitted that after the lapse of a period of one year, the order/notification dated 23.1.2012 has not been restored which is a proof that the order/notification dated 27.1.2012 was in fact a cancellation order and as such is a final order and not an order for keeping in abeyance the earlier order.
4 . While controverting the arguments, Ch. Shokat Aziz, the learned Additional Advocate-General, defended the order passed by the Service Tribunal and submitted that appeal is competent against a final order and the order/notification dated 27.1.2012 is not a final order. On Court direction the learned Additional Advocate-General inquired from the department and informed the Court that the order/notification dated 23.1.2012 has not been restored and it is still in abeyance.
5. We have heard the learned counsel for the parties and perused the record. At the outset we may observe that under Section 4 of the Azad Jammu & Kashmir Service Tribunals Act, 1975 any civil servant aggrieved of any final order whether original or appellate made by an authority in respect of terms and conditions of his service may prefer an appeal to the Service Tribunal. The appeal is competent only against a final order which adversely affects the terms and conditions of service of a civil servant. The term "final order" has nowhere been defined either in the Azad Jammu & Kashmir Service Tribunals Act, 1975 or in the rules made thereunder. However it came under consideration of Supreme Court of Pakistan and this Court in a number of cases.
' In a case reported as Dr. Sabir Zameer Siddiqui v. Mian Abdul Malik and 4 others [PLD 1991 SC 226] it has been observed as under:--- "5 There is no requirement of law provided anywhere as to how a final order is to be passed in a departmental proceeding. In the present case, not only the representative of the competent authority considered the comments offered in the High Court to be the final order but the High Court itself acted on such representation thereby inducing the appellant to seek further relief in accordance with law. The appellant could, in the circumstances, approach the Service Tribunal for the relief."
' In another case reported as The Azad Government and another v. Dr. Latafat Amin and another [2006 SCR 116] it has been observed as under:- "6 I have considered the respective arguments of the learned counsel for the parties. In the fiscal matters relating to civil servants of AJ&K, the decision of the Finance Department is considered as effective and final. Its opinion carries weight till the time the same is either overruled by the Prime Minister in due course of law or by a Court of competent jurisdiction. The respondent was denied benefit of four advance increments despite the fact that he had obtained higher education when the law for grant of advance increments was still in force. An order for the purpose of Service Tribunals Act which gives rise to grievance of civil servant and is final in nature can be challenged before the Service Tribunal. There are so many authorities on this subject. In a case reported as Muhammad Arshad Saeed v. Government of Pakistan and others [1994 SCMR 1033] an appeal was filed against the policy letter of Government. The same was dismissed by the Service Tribunal in limine. The order of Service Tribunal was challenged with the leave of the Court before the Supreme Court. The Supreme Court while placing reliance upon an earlier authority given by it in another case opined as under:- ' In the second appeal (Civil Appeal No, 141/1992), the Tribunal was in error in holding that the policy letter of 10.2.1980 did not amount to an order or a departmental order or a final order. An order for the purposes of Service Tribunals Act can have many forms. It may be a general order. It may be a particular order directed against an individual. It may be a policy decision. It may be a decision of a particular grievance or an order refusing to redress a grievance. All such orders, if they affect the terms and conditions of the service of the employee would qualify as departmental orders ex-facie issued by the authority within the department empowered to do so. Hence, such orders would be amenable to appellate jurisdiction of the Service Tribunal. A similar policy decision in the case of revision of pension had been the subject-matter of litigation in I.A. Sharwani and others v.
Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 2041) and the jurisdiction of the. Service Tribunal was upheld in all such cases.'
' This view was owned by this Court in a case titled Mubasher-ul-Haq v. Azad Government and others [1991 PLC (CS) 426].
7. In the present case, before the withdrawal of policy of advance increments by the Government, the respondent had passed the examination of M.Phil, which was notified on 29.11.2001 by Quaid-e- Azam University. It will make no difference due to some administrative procedures, requisite degree was issued to contesting respondent later on by the University authorities. The order of Finance Department refusing him benefit of advance increments in the light of afore-mentioned policy was bad in law which was rightly set aside by the Service Tribunal."
6. The use of the term "final order in Section 14 of the Service Tribunals Act, 1975 seems to be that if the terms and conditions of service of a civil servant are finally determined and controversy is concluded, he may file an appeal from such order. If the words "final order" had not been used in the aforesaid provision of law, then a civil servant would have been at liberty to file an appeal from any order which in his wisdom adversely affects the terms and conditions of his service whether it finally concludes the controversy or not. Any order which determines the rights of the parties and concludes the controversy so far as a particular authority or forum is concerned, notwithstanding that such an order may be open to challenge in appeal etc. Is a final order. While dealing with the definition of "final order", the Supreme Court of Pakistan in a case titled S.H.M. Rizvi and 5 others v.
Maqsood Ahmed and 6 others [PLJ 1982 SC 36] observed as under:- "Right of appeal has been conferred by sub-section (1) of Section 4 only against a "final order whether original or appellate". A final order has the distinction of determining the rights of the parties. Where any further step is necessary to perfect an order, in this case the disposal of the objections received or finalization of the provisional seniority list, the order cannot be taken to be final. An order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc. This aspect of the concept of the finality of an order has been taken care of by adding the words "whether original or appellate" in the enacted law itself." -
7. In the instant case the transfer order was issued on 23.1.2012. After the period of only 4 days the aforesaid order was kept in abeyance vide order dated 27.1.2012. An authority which has power to pass an order is also empowered to cancel, withdraw or suspend the same. If a transfer order is cancelled from, the date of issuance, it can be tennedas a "final order". It is amenable to appeal before the Service Tribunal under Section 4 of the Service Tribunals Act, but where order is not cancelled rather it is kept in abeyance, further order in continuation of such order has to be passed wherein the authority may restore the original order by withdrawing the suspension order or pass an order for cancellation of original order. Such order may be a "final order". It has been observed in a number of cases that the departmental authorities exercise their powers in an arbitrary manner for defeating the provisions of law. It is often observed that in the Education Department, after passing a transfer order, it is kept in abeyance without any justification. In fact the authorities want to cancel the same but to defeat the provisions of Section 4 of the Service Tribunals Act so that the affected party be deprived of his/her right of filing appeal before the Service Tribunal, the order is couched as suspension order or an order keeping in abeyance the original order. A careful perusal of the order/notification dated 27.1.2012 shows that it is couched as an order for keeping in abeyance the notification dated 23.1.2012 but in fact it amounts to cancellation of the notification dated 23.1.2012. This fact is proved by the information furnished by the Additional Advocate-General on the Court order that despite the lapse of more than one and half year, the order/notification dated 27.1.2012 for keeping in abeyance the notification dated 23.1.2012 is still intact. The notification dated 23.1.2012 has neither been restored nor cancelled. Therefore, keeping in view the peculiar circumstances of the case, we are of the view that the order/notification dated 21.1.2012 in fact amounts to an order for cancellation of transfer notification dated 23.1.2012 and it falls in the definition of "final order".
8. The result of above discussion is that we accept the appeal, set aside the order passed by the Service Tribunal on 30.1.2012. The appeal filed in the Service Tribunal is admitted for regular hearing.
It is remanded to the Service Tribunal for decision on merits. Since the appeal was filed in the Service Tribunal on 30.1.2012, a period of more than one and half year has elapsed, therefore, it is desirable that the Service Tribunal shall hear and decide the appeal expeditiously. The parties are directed to appear before the Service Tribunal on 25.7.2013.