1. The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, following relief is solicited by the petitioner.
(i) Direct the respondents, jointly and severally to release the entire pension of the petitioner including pension contribution on the prat of electricity department other outstanding emoluments as admissible to him under law, without further delay.
(ii) Directed the respondents to pay the petitioner leave encashment as admissible to him under law;
(iii) Quash order dated 28.03.2023 issued by respondents;
(iv) Direct the respondents to issue PPO in favour of petitioner.
(v) Costs of litigation is also solicited.
(vi) Direct the respondents to pay reasonable amount as compensation for victimizing the petitioner.
2. The facts forming the background of the instant writ petition are that the petitioner was permanent employee of Electricity Department and performed his duty as Stenographer BS-12. It is stated that the petitioner was transferred from Electricity Department to Mirpur University of Science and Technology (MUST) by the competent authority in the year 2010 on the recommendations of respective selection committee. It is further stated that the petitioner was adjusted in the year, 2010 as Private Secretary in MUST and by the approval of syndicate the post firstly upgraded in BS-17 and then BS-18. It is submitted that the petitioner after attaining the age of superannuation, he has been retired from service vide order dated 20.04.2022. It is further submitted that NOC has been issued in favour of petitioner on 23.02.2023. It is alleged that vide notification dated 12.12.2022, the Electricity Department has transferred the amount as Rs. 48,09,840/-in the account of MUST but instead of releasing the pension the Respondents No. 1 and 3 have levelled the allegations against the petitioners and banned the entry of petitioner in the premises of MUST. It is further alleged that the official respondents merely on the basis of personal grudge, the pension of petitioner has not been released and due to which his family faced financial hardships.
3. The writ petition was admitted for regular hearing vide order dated 21.09.2023. Written statement has been filed on behalf of MUST wherein it is stated that the petitioner has no locus standi to file the instant writ petition, hence, the writ petition is liable to be dismissed. It is further stated that he has an alternate remedy before the proper forum but the petitioner did not avail alternate remedy and filed this constitution writ petition which is liable to be dismissed. It is contended that petitioner was transferred and appointed as Stenographer BS-12 in MUST by the Chief Secretary vide order dated 19.08.2010, however, the only Hon'ble President of AJ&K is competent authority to transfer the service of petitioner. It is contended that the petitioner did not join the University being stenographer and was not regular employee of the University.
4. I have heard the learned counsel for the parties and gone through the record of the case.
5. The perusal of record shows that the petitioner was appointed as Stenographer BS-12 in the Electricity Department. The petitioner was transferred from Electricity Department to MUST vide order dated 19.08.2010 and on the recommendations of concerned selection committee, the petitioner was adjusted as Private Secretary BS-16 in MUST. The post of Private Secretary has been upgraded from BS-16 to BS-17 firstly and then BS-17 to BS-18. The petitioner has attached his retirement order dated 20.04.2022, whereby the Vice Chancellor MUST retired the petitioner from his service as Private Secretary BS-18, on attaining the age of superannuation w.e.f 24.04.2022. For better appreciation, the retirement order of petitioner is as under: Mirpur University of Science and Technology (MST) Mirpur- 10250 (AJK), Pakistan Order: The Vice Chancellor has been pleased to approve the retirement from service in favour of Mr. Ijaz Saleem, Private Secretary (BS-18) on attaining the age of superanduation w.e.f 24.04.2022 (A.N) under rules.
6. However, NOC for payment of pension and Leave Encashment shall be issued on provision of NOC from concerned departments and extra payment (if any) shall be recovered from pension shares of the Pensioner.
7. Deputy Registrar The petitioner has attached certificate with the writ petition which transpires that the University has showed no objection for payment of pension and other shares in his favour. The Certificate is as under: No. R/Admin/3267-70/2023 Dated 23.02.2023 To Whom it may Concern This is to certify that here is nothing outstanding against Mr. Ijaz Saleem, Private Secretary (PBS-18).
8. Therefore, the University has no objection for payment of pension and other shares in his favour.
9. Deputy Registrar A bare reading of above-mentioned certificate reveals that the there is nothing outstanding against the petitioner. The petitioner has attached a notification dated 12.12.2022, whereby, the pension contribution on the part of Electricity Department amounting to Rs. 48,09,840/-has been transferred in the Account of MUST. The notification is as under: The learned counsel appearing on behalf of MUST. University filed an order dated 13.10.2023 whereby the Senate approved the pension share only to the extent of MUST. As stated earlier, Electricity Department has already transferred the amount to the account of MUST, so, the MUST is duty bound to pay whole amount of pension to the petitioner. A query was made to learned counsel for the respondent that under what law the University has not paid pension to the petitioner he replied with an arrogant manner that the petitioner may take pension from the University. The behavior of learned Advocate for the respondent/MUST is not tenable, however, while taking lenient view, he is warned to be careful in future.
10. The University took a categorical stance that when the petitioner was promoted, he was not fulfilled the required qualification. It may be stated here that the post of petitioner was upgraded as per the recommendations of respective selection committee and his promotion was made due to the act of the authority, so, he cannot be penalized for the fault if any committed by the authority. My this view finds support from case reported as 2020 SCR 834.
11. It is worthwhile to mention here that the Vice Chancellor approved an inquiry committee on the incident on March 15th, 2023 at 12:45 PM, consisting of Dr. Amir Saghir, Associate Professor Department of Statistics, Dr. Yasir Mehmood Assistant Professor Department of CS&IT vide order dated 16.03.2023. The inquiry committee concluded that the petitioner founded guilty of misconduct. According to the statutes of Mirpur University of Science and Technology (MUST)
12. Mirpur Employees Efficiency and Discipline Statutes, 2009 Section 6 the procedure for inquiry was prescribed. The relevant Section 06 is reproduced as under:
6. Inquiry Procedure to be Observed by the Authorized Officer.
(i) The following procedure shall be observed by the authorized officer when he/she is directed to proceed against a University employee under these Statutes; a. In case a University employee is accused of subversion, corruption or misconduct the authorized officer may require him/her to proceed on leave, if due, or, with the approval of the competent authority, suspend him/her. b. Provided that any continuation of such leave or suspension shall require the approval of competent authority after every three month.
(ii) ................................................................................
(iii) ...............................................................................
13. It is the claim of the petitioner that he retired from service and he is not an employee of University so the University initiated the whole proceedings with mala fide intention. In Black's Law Dictionary the definition of employee is as under: Employee: someone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employee has the right to control the details of work performance.
14. The Civil Servant in Black Law's Dictionary is defined as under: Civil Servant: Someone employed in a department responsible for conducting the affairs of national or local Government.
15. So, the petitioner was not the employee of University when the inquiry was initiated against him.
16. Impugned order of inquiry in which the petitioner found guilty of misconduct was without jurisdiction and nullity in the eye of law. The University has attached detailed reply of petitioner which has attached as Annexure "RA/4" with the written statement, the last pare of reply of petitioner as under: A bare reading of reproduced reply of petitioner reveals that respondents have availed alternate remedy and after failed to achieve their aim, they initiated departmental proceedings against him.
17. It is established from the record that the official of University with malice and mala-fide intention is not completing the retirement file of petitioner. Element of malice has been well elaborated by Hon'ble Supreme Court in "Ahmed Nawaz Tanoli's case reported as 2016 SCR 360. Relevant paragraphs 11 and 12 of the afore-cited judgment are reproduced as under: The petitioner has rendered service in the MUST and after rendering service and on attaining the age of superannuation the petitioner has been retired from Service. As per the petitioner is entitled to release the pension and other shares, so he is entitled to equitable relief of writ jurisdiction.
18. The nutshell of the above discussion is that the writ petition is accepted and the impugned order dated 28.03.2023 is hereby set aside. The official respondents/MUST University is directed to release the entire pension of the petitioner including pension contribution on the part of Electricity Department and others outstanding emoluments as admissible to him under law. The respondents are further directed to pay leave encashment to petitioner as admissible under law and issue PPO in his favour forthwith.