The captioned writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby , a direction in the nature of mandamus is solicited against respondents that they should process the case of petitioner in accordance with law and to retire him on reaching superannuation age w.e.f. 31.12.201 1 with full benefits of pension.
2. Precise facts culminating into filing of the instant writ petition are that petitioner is first class State Subject, hails from District Mirpur , who was appointed as Gardner on work charge basis in Nursery of WAPDA, Mangle District Mirpur , during the year, 1988. However , later on, he was appointed on permanent basis as Gardner in Mangle Nursery of Mirpur Sub Division w.e.f. 02.07.1998 vide order dated 13.02.1997. The petitioner served for the last 40 years as Gardner-Field Man B-1, and according to his date of birth his superannuation date was 31.12.201 1. He moved repeated applications for regularization of his service since, 1988, for the purpose of pension; however , respondents responded that as service of petitioner was less than 05 years w.e.f. 11.04.2008, therefore, he was not entitled to pension. It is claimed that petitioner was regularized w.e.f. 02.07.19 96, therefore, his total service became more than 15 years, qualified for pension but respondents declined to extend him the aforesaid benefit, hence, the instant constitutional petition.
3. The writ petition has been controverted by respondents through written statement, wherein, it is stated that petitioner was initially appointed as Gard ner on Work Charge basis against Estimate Work w.e.f. 01.08.1994 vide order dated 12.06.1995. Later on, his appointment was converted as Beldar into Daily Wages instead of Work Charge against estimated work w.e.f. 02.07.1997, to onward upto 10.04.2008. He was brought on regular cadre w.e.f. 10.04.2008, vide appointment order dated 01.04,2008. It is further maintained that as per the Azad Kashmir Civil Services Pension Rules, 1977, if a regular WAPDA employee retires, after completing qualifying service of 5 years but less than 10 years, he may be granted gratuity not exceeding one month' s emoluments for each completed year of qualifying service, therefore, service of petitioner was only 03 years, 02 months and 21 days on regular basis, at the age of his superannuation i.e. 30.06.201 1, hence, submitted for dismissal of petition.
4. Ch. Muhammad Suleman, Advocate, appearing on behalf of petitioner strenuo usly argued that petitioner was appointed as Gardner-Filed Man in Nursery of WAPDA, Mangla Mirpur , during the year, 1968, on Work Charge basis and his permanent order was issued w.e.f. 02.07.1996, on 13.02.1997, hence, a right in his favour was accrued to receive pension who completed more than 15 years regular service, hence, submitted for acceptance of writ petition.
5. Mr. Javaid Najam-us-Saqib, Advocate, appearing on behalf of _respondents vehemently argued that petitioner was inducted on regular basis in service on 10.04,2008, as Gardner-Field Man B-1, vide order , dated 01.04.2008, who on reaching age of superannuation, completed only 03 years, 02 month and 21 days service, therefore, he was not entitled to pension under law , hence, craved for dismissal of writ petition.
8. I have perused the contents of writ petition and examined the appended documents made available with utmost me.
7. A contemplate perusal of original service book of petitioner appended alongwith writ petition reveals that he was appointed as Gardner-Filed Man B-1, in Mangle Nursery of Mirpur w.e.f. 02.07.1996, vide order dated 13.02.1997.
The respondents, however , in written state ment stated that service book was prepared by petitioner himself, hence, forged, perusal of service book reveals that the same was duly signed by Sub-Div isional Watershed Management Officer, WAPDA, Mirpur (AK). The petitioner also specifically pleaded in Paragraph No,2, of his writ petition that he was appointed on permanent basis as Gardner in Mangle Nursery of Mirpur w.e.f. 02,07,1998, vide order dated 13.02,1997, The writ petition filed by petitioner is duly supported by an affidavit, The respondents although controverted the aforesaid paragraph No.2, of writ petition through written stateme nt, however , neither the same is verified nor any counter affidavit is appended in support of the same. It is settled principle of' law that if other party failed to file counter affidavit, stance took by petitioner in writ petition duly supported by an affidavit shall be presumed as true and correct. The aforesaid proposition came under consideration before the Apex Court in case titled "Abida Parveen Vs. District Education Officer Schools Elementary (Female) Mirpur and 4 others" [2014 PLC (C.S.) 999 ], wherein, at page 1006 of the report, it was opined as under:- "8.......... Is a settled principle of law that when some fact is alleged and support ed by an affidavit, if there is no rebuttal from the other side by filing counter affidavit, the same shall be deemed admitted............
The similar view was expressed by the Apex Court of Pakistan in case titled "Islamic Republic of Pakistan through the Secretary , Ministry of Defe nce, Government of Pakistan, Rawalpindi and another V. Amjad Ali Mirza" ( PLD 1977 SC 182 ). At page 187 of the precedent case, it was held as follows:- "Before coming to the merits of the case, it is necessary to dispose of two prelimina ry objections raised on behalf of the respondent on points of abatement and limitation. During the pendency of the appeal, the respondent died on 11.01.1972. An application for bringing on record his legal representatives was filed on 16.05.1972 i.e. about a month beyond limitation. Since no counter affidavit has been placed on record to controvert the ground for condonation of delay , this alone should be good enough to justify the setting aside of the abatement of appeal and I hold accordingly ."
The stance of respondents that petitioner in his credit had only 03 years, 02 months and 21 days service on regular basis, at the age of superannuation i.e. 30.06.201 1, therefore, he was not entitled to pension is baseless. Even otherwise, it is settled principle of law that temporary/adhoc service followed by regular service shall be counted for pensioner benefits. The aforesaid proposition came under consideration before the Apex Court of Pakistan in case titled "Mir Ahmad Khan Vs. Secretary to Government and others " [1997 SCMR 1477 ]. At page 1480, of the report it was observed as follows:- "Admittedly the appellant put in more than ten years' temporary service before his services were terminated he was, therefore, entitled to pensionary benefits under Regulations 371-A(i) of Civil Service Regulations."
An identical preposition came under consideration before the Peshawar High Court, in case titled "Abdul Khaliq Vs. Government of Khyber Pakhtunkhwa through Secretary Health and 3 others" [2018 PLC (C.S.) Note 134], wherein, at page 129, of the report, it was opined as follows:- "Petitioner -employee after being regulariz ed in service had become entitled to be paid pensionary benefits from the date of his first appointment. Temporary and officiating service followed by confirmation would be counted for pension or gratuity . When contract employee was absorbed into regular employment with no break in his service, period of contract employment had to be considered for counting length of service for pensionary benefits."
A perusal of record reveals that petitioner is in service w.e.f. 2.7.1996, without any break till age of superannuation i.e. 30.6.201 1, therefore, he is entitled to pensionary benefits accordingly .
8. The crux of above discussion is that by accepting the instant writ petition, respo ndents jointly and severally are hereby directed to extend benefit of pension in favour of petitioner as a Gardner-Field Man B-1, from the date of his appointment w.e.f. 02.07.1996, vide order dated 13.02.1997, and issue his retirement order from the age of Superannuation i.e. 30.06.201 1, within a period of 01 month. The costs shall follow the eventuality .