1. ' GHULAM MUSTAFA MUGHAL, J.--- Through the above captioned petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the petitioner, seeks a direction to the respondents for payment of increases in pension granted to the High Court Judges from time to time.
2. ' Necessary facts to be noticed for the proposed order, are that the petitioner, herein, was a member of the judicial service of Azad Jammu and Kashmir and was promoted as Secretary Law in due course of time. On 16-12-1996, he was appointed as Chairman Service Tribunal, subject to the condition that terms and conditions of his service shall be determined later on. On December 21, 1996, he was transferred and posted as Chairman Zakat Council in the same manner. On 2-9- 1998, he was again transferred and appointed as Chairman, Public Service Commission. It was again reiterated in the said Notification that terms and conditions of his service will be determined later on. On 14-5-1998, another Notification was issued whereby terms and conditions of his service stood determined. The case of the petitioner is that he was granted pension equal to the Judge of High Court but increases in the pension of the retired Judges have been refused by the Accountant-General office without lawful authority.
3. ' The petition has been resisted by the respondents by filing written statement. Their precise reply is that the petitioner, herein, was appointed as Chairman P.S.C. For a period of 3 years. He was not entitled to the pension equal to the Judge of High Court because he is lacking the qualifying service i.e, 5 years, provided by High Court Judges (Leave, Pension and Privileges) Order, 1997. It is also stated by them that petitioner's pension has been fixed as a civil servant in view of Notification No,FD/R/(33)/81 dated 23-9-1986, on the basis of last pay drawn by him which does not mean that he was granted pension equal to the Judge of High Court.
4. The petitioner has addressed the Court at length, in support of his petition. He argued that terms and conditions of his service were determined by the President vide Notification dated 14-5-1998, whereby he has been declared entitled to receive the pay and privileges admissible to a Judge of High Court. He maintained that pension being a part and partial of the terms and conditions of service cannot be separated from the pay and other privileges, hence, the refusal on behalf of the respondents is arbitrary, illegal and unjustified. He further submitted that he has already received the other privileges admissible to a Judge of High Court, hence, is also entitled to the increases in pension. The case of the petitioner is that his request was considered by the Law Department and was opined in his favour but even then the Accountant-General Office has not accepted the same which was binding upon it in view of the Rules of Business.
5. ' Sardar Abdul Sami Khan, the learned counsel for the respondents, controverted the arguments advanced by the petitioner and submitted that the petitioner, herein, has not qualified the maximum length of service, required for grant of pension to a Judge of High Court, hence, his case has been rightly rejected. He argued that no illegality has been committed by the respondents. No law or rules has been violated, therefore, grievance of the petitioner has no substance. He also argued that appointment of the petitioner as Chairman Service Tribunal and Chairman Zakat Council was for few days and thereafter he was appointed as Chairman P.S.C. According to the learned Advocate, though, vide Notification dated 14-5-1998, petitioner has been declared entitled to the pay and privileges equal to the Judge of High Court but there is no specific mention in the said Notification that petitioner, herein, will also be entitled to the pension equal to the Judge of High Court, therefore, claim of the petitioner on the basis of said Notification is misconceived. He argued that contractual service is not pensionable, therefore, petition is liable to be dismissed.
6. ' We have taken into consideration the respective contentions of the parties and perused the record with due care.
7. ' It may be stated that unlike Punjab, no rules for determination of pay, privileges of the Chairman of Service Tribunal have been framed in Azad Jammu and Kashmir. Prior to amendment made in the Service Tribunal Act, 1975 (vide Act No,XXVIII of 1993), a schedule was attached to the said Act through which terms and conditions of Chairman Service Tribunal were to be settled but this schedule is deleted in the amended Act mentioned above. Under section 4 of the amended Act, the appointment of Chairman and Member of the Service Tribunal is to be made by the President on such terms and conditions as may be determined by the rules. As stated above, no rules have been framed yet for the purpose and the President has been determining the terms and conditions of service of the Chairman on the basis of the afore-amended provision in the past. There is no provision in the Interim Constitution Act, 1974, unlike section 224-A of the Constitution of India whereby a person can be appointed as Judge of the High Court for the purpose of pay and privileges. The terms and conditions can only be settled by an Act or rules. A perusal of the provisions of Service Tribunal Act, 1975 shows that office of the Chairman is subject to the pleasure of the President. Even this office is not declared as a tenure office unlike the Chairman P.S.C., therefore, it can safely be concluded that the terms and conditions of Chairman Service Tribunal, in absence of the rules have been determined by the President to the extent of pay and privileges of the petitioner for the period only he remained as such. The right of pension is creation of the statute and in absence of statutory backing the same cannot be extended to the contractual appointments. In case of contractual appointment it can be claimed only when it is one of the conditions of the contract. Under section 3(11) of the Azad Jammu and Kashmir Shariat Court Act, 1993, the Judges of Shariat Court have been declared entitled to receive salary, allowances, pension and privileges equal to the Judge of a High Court of Pakistan. Relevant section of the Shariat Court Act is reproduced as under:- "3(11) A Judge of Shariat Court who is not a Judge of High Court shall be entitled to the same salary, allowances, pension and privileges as are admissible to a Judge of High Court in Pakistan."
8. ' Similarly there is a statement in Fifth Schedule of the Interim Constitution Act, 1974 that the Chief Justice and the Judges of the High Court of Azad Jammu and Kashmir shall be entitled to the same salary, allowance, privileges and pension as are admissible to the Chief Justice and Judges of the High Court of Pakistan. In I.A. Sharwani and others v: Government of Pakistan through Secretary Finance Division Islamabad and others 1991 SCM R 1041, "it was observed that right to a pension depends upon statutory provisions, therefore, existence of such right in particular instance is determinable preliminarily from the terms of the statute under which right or privilege is granted."
9. ' The opinion of the Law Department on which the petitioner, herein, has heavily relied is contradictory. The opinion is based on the interpretation of the word `remuneration' which is defined in the Interim Constitution Act, 1974 for the purpose of Constitution Act only. This term is not defined in the Service Tribunals Act, therefore, stretching the same for the purpose of grant of pension to the Chairman Service Tribunal is not correct. The said opinion is partly based on a full Court judgment rendered in Raja Bashir Ahmed Khan's case Writ Petition No,4 of 1997, decided on 17-4-1998. In that case it was held that when a civil servant, is appointed on contract he is no more a civil servant. This is not a correct interpretation of law rather the same militates against the interest of civil servants who are appointed on tenure posts and have to be repatriated to the parent department after the expiry of their tenure. Viewing the controversy from the petitioner's point of view it may be stated that the terms and conditions of the petitioner, herein, were determined finally vide Notification dated 31-10-1998, when he was appointed as Chairman P.S.C.
10. And except allowing him the pay and privileges equal to a Judge of High Court nothing else is granted to him. Under the said Notification his appointment is made for a period of three years. For the purpose of pay and privileges he is declared entitled to receive the same equal to the Judge of High Court up to the age of 62 years and his remaining period is treated under contract policy. It was enjoined upon the petitioner to challenge this Notification. The petitioner has also not challenged his P.P.O. The Accountant-General Office after deliberation with the Law and Finance Departments has rightly verified his pension in light of the Notification dated 23-9-1986 as a civil servant.
11. ' Before parting with the case it may be observed that privileges admissible to the Judge of High Court under Part-IV of the High Court Judges (Leave, Pension and Privileges) Order, 1997, already received by the petitioner will not be recoverable. It is also directed that the petitioner will receive the increases in the pension granted to the civil servants from time to time. Except the above, the petition has no substance, which is hereby dismissed.