The supra titled petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, following prayer is made by petitioner: "It is therefore, humbly prayed that by accepting the instant writ petition the non-petitioners may kindly be directed to adjust the petitioner, to pay the salary of the petitioner from 07.09.2020 up to 02.03.2021 to issue the retirement notification of the petitioner w.e.f 02.03.2021 and also to pay the pension and other emoluments to the petitioner as admissible."
2. Precise facts forming background of the instant writ petition are that petitioner is 1st class State Subject of Azad Jammu and Kashmir serving as Headmistress in Education Department of Azad Jammu and Kashmir. It is stated that due to personal problems petitioner requested to Secretary Education Elementary and Secondary Education for deputation in Islamabad or Rawalpindi as the children of petitioner are studying there. The Secretary in light of the request issued an NOC vide script dated 23.02.2006. After due process the Federal Directorate of Education Government of Pakistan has been pleased to borrow the service of petitioner on deputation as Deputy Headmistress B-17 under the Federal Directorate of Education through notification dated 02.05.2006. Thereafter, petitioner join in the Federal Government Public School Islamabad vide notification dated 25.05.2006. After completion of deputation period the petitioner again applied for is issuance of NOC for more two years from 12.05.2007 to 11.05.2009, which was allowed to her.
The petitioner remained continuously on deputation however, vide notification dated 29.03.2013 process for permanent absorption was initiated. The matter was under process, meanwhile, vide notification dated 19.08.2020, the service of petitioner has been repatriated to her parent department with immediate effect. In light of the said notification petitioner submitted her joining report, however, petitioner was not allowed to join. In the meantime, the petitioner submitted an application to the Minister Education for her adjustment, salary and retirement, however, needful has not been done, hence, the petitioner constrained to file the instant constitution petition.
3. The writ petition has been resisted by respondents through comments, whereby, the contents of writ petition have been controverted and submitted for dismissal of writ petition in limine.
4. Syed Nazir Hussain Shah Kazmi, Advocate, appearing on behalf of petitioner submitted that petitioner is a permanent employee of Education Department who remained on deputation about 15 years on the basis of NOCs issued by the competent authorities and after repatriation in the parent department the concerned authorities disallowed his client to join. The learned counsel further submitted that his client has attained the age of superannuation on the basis of which she applies for retirement, however, authorities refused to do so, which is against fundamental rights of the petitioner, hence, submitted for admission of writ petition.
5. I have perused the contents of writ petition and examined the appended documents made available with utmost care.
6. A contemplate perusal of file reveals that petitioner was permanent employee of Education Department serving as Headmistress who due to personal problems requested the Secretary Elementary and Secondary Education to sent her on deputation in Islamabad or Rawalpindi as her children are studying there. The concerned Secretary accepted petitioner's request and after due process the Federal Directorate of Education Government of Pakistan has been pleased to borrow the service of petitioner on deputation as Deputy Headmistress B-17 under the Federal Directorate of Education through notification dated 02.05.2006. The petitioner remained on deputation from 02.05.2006 to 19.08.2020, about 15 years in Pakistan. It appears from record that in the light of notification dated 19.08.2020, petitioner submitted her joining report, however, respondents disallowed petitioner to join. As per rule vii(x) of the Azad Jammu and Kashmir Deputation Policy the period of deputation should not exceed 05 year. The relevant extract is reproduced as under: "x) The period of deputation should not exceed 05 years.
Provided that the Government may extend the said period up to one year in special circumstances.
Provided further that after completion period of deputation, a Government servant shall be required to serve in his/her parent department for a minimum period of tun years before he/she is allotted to proceed on deputation again."
A contemplate perusal of the aforesaid rule makes it abundantly clear that after completion period of deputation, a Government servant shall be required to serve in parent department for a minimum period of two years, however, petitioner remained 15 years continuously presuming herself on deputation while ignoring the deputation policy on the basis of NOC's, which is not admissible under law. The same proposition came under consideration before the Apex Court of Arad Jammu and Kashmir in ease titled Shahid Hussain Malik v. Azad Govt. and 3 others (2014 SCR 466). At page 469, of the precedent case, it was observed as under "Under the deputation policy dated 12.11.1979, the period of deputation of a civil servant shall not exceed a period of five years. Initially the period of deputation may be three years and after completion of three years period the Government servant is required to serve in his parent Department for a minimum period of two years, Therefore, he can again be sent on deputation.
Although the Government has authority to extend the period of one year but before proceeding on deputation for second time it is mandatory that n civil servant shall serve in his parent department fora minimum period of tun years."
7. A perusal of comments filed by respondents on 28.09.2021, reveals that due to absent from the department about 15 years from 2006, the petitioner was dismissed from service through Govt. notification dated 24.11.2019 and her name has also been deleted from the strength of the department. The petitioner lion filed an application before Deputy Registrar High Court on 28.02.2022 which is on file, for seeking amendment in the writ petition for challenging the notification of her termination from service dated 24.11.2019. The application cannot be entertained as the termination order dated 24.11.'2019 was liable to be challenged before the Service Tribunal B because the petitioner was a civil servant and if any adverse order passed by the authority against a civil servant, the Mime can be challenged before the Service Tribunal under Section 4 read with Section 5 of the Arad Jammu and Kashmir Service Tribunal Act, 1975. Therefore, this Court cannot exercise the constitutional jurisdiction in presence of alternate remedy available to the petitioner, therefore, the application for amendment is disallowed.
8. The crux of above discussion is that finding no substance in the instant writ petition the same is hereby dismissed in limine.