MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).--This appeal has been brought against the order of the Government, passed vide No.1395-1403, dated 7-6-1984, whereby the appellant was retired from the service, under provisions of section 12(ii) of Civil Servants Act, 1976. The appellant also challenged order, dated 5-6-1985, whereby his review petition was rejected. In the memorandum of appeal, a number of grounds were taken, but the learned counsel for the appellant argued only one point viz. That the appellant was a servant of Government of Pakistan and the Government of Azad Jammu and Kashmir had no authority to retire him from service. The Government denied the averments, made by the appellant in the memorandum of appeal. The counsel for the Government pleaded that the service of the appellant was transferred to the Government of Azad Jammu and Kashmir and he became subject to the laws of Azad Kashmir. According to him, the appellant opted for service in Azad Kashmir and after his transfer alongwith the post, he was no longer an employee of Government of Pakistan, therefore, Government of Azad Kashmir had every right and authority to exercise power vesting in it under any law in force in Azad Jammu and Kashmir. According to the learned counsel for the respondent, the order suffers from no legal defect.
2. In view of the arguments of the learned counsel for the appellant, that the appellant was a servant of Government of Pakistan, we summoned record from the Food Secretariat to ascertain the truth or otherwise of the averments, made in this behalf.
It is an admitted fact that the Civil Supply Department was functioning under the control of Government of Pakistan, prior to 30-6-1976 and it is borne out from the record that this department was transferred to Government of Azad Kashmir with effect from 1-7-1976. The appellant verbally told us during the argument that he had submitted an option for service, in Pakistan instead of Azad Jammu and Kashmir, at the time of transfer of department to Azad Kashmir. We in spite of our best efforts could not find any such option on the record. Even otherwise, it was the duty of the appellant to place on record such documents, which could support the plea, taken by him or he should have requested the Court to summon such documents, from the concerned office. We have to take other documents and the circumstances into consideration for disposal of the point in issue, in this case.
4. There is a notification of the Government of Azad Jammu and Kashmir, which is reproduced below:-- "OFFICE OF THE SECRETARY FOOD, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD NOTIFICATION The Directorate of Civil Supplies and Transport under Kashmir Affairs Division, Government of Pakistan, has been bifurcated into two Directorates i.e. One for Azad Kashmir and the other for Northern Areas. As a result of this bifurcation, the posts mentioned in Annexure 'A' attached with this notification have been transferred to the Directorate of Food Azad Kashmir under Azad Kashmir Government. The said posts as per Annexure 'A' are hereby formally notified as existed on 1-7-1976, the date of take over of the Department by Government of Azad Jammu and Kashmir.
(Sd.)
(KHALIL AHMED QURESHI)
Secretary Food.
No. 682-732/SF/76, dated 5th August, 1976."
Through this notification, number of posts transferred to Azad Kashmir Government alongwith the transfer of the department have been indicated. The appellant was an Accountant at that time.
The entry in Annexure 'A' of the notification is also reproduced below:-- "ANNEXURE 'A'
Sr. No. Designation of the post. No. Of the posts.
(1) ...........................................................
(2) ...........................................................
(3) ...........................................................
(4) Accountant 4"
5. The second notification passed on the subject is also reproduced below:--- "OFFICE OF THE SECRETARY FOOD, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD NOTIFICATION (Sd.)
(RAJA ABDUL KHALIQ KHAN), Secretary Food Azad Govt. Of the State of J & K, Muzaffarabad.
No. 1057-1117/SF/76, dated the 22nd September, 1976."
Entry No. 4, in the Annexure 'A' to the aforesaid notification is also reproduced below:-- "STATEMENT SHOWING THE PARTICULARS OF OFFICERS AND STAFF POSTED IN THE AZAD JAMMU AND KASHMIR WING OF THE DIRECTORATE OF CIVIL SUPPLIES AND TRANSPORT S.No. Designation of Number of Name the post. Of posts.
(1)
(2)
(3)
(4)Accountant 4.1. Mr. Muhammad Isma il.
2. Mr. Muhammad Din.
3. Mr. Ghulam Hussain.
4. Vacant."
6. The first notification, dated 5-8-1976, reproduced hereinbefore shows that 4 posts of Accountants were transferred to the strength of Azad Jammu and Kashmir Government and second notification, dated 22-9-1976 issued in continuation of the earlier notification shows the names of the incumbents transferred to the service of Azad Kashmir. The name of the appellant figures at S.No. 4, against the entry No. Pertaining to the Accountants. From the above notifications, it is established that the appellant's services were transferred to the Government of Azad Kashmir, without any' condition. It is nowhere indicated in these notifications nor any other order or notification to the contrary has been, produced by the appellant to show that he was on deputation with the Government of Azad Kashmir on behalf of the Government of Pakistan or that the transfer of his services was conditional and he retained any lien with the Government of Pakistan. The appellant continued in service from 1976 to 1984 and it is nowhere shown that he ever protested to his transfer to Azad Kashmir, which would thus mean that he by his conduct accepted the services of Government of Azad Jammu and Kashmir, even, if at anytime earlier, he opted otherwise.
7. Apart from the above, we have also seen some correspondence between the Government of Azad Kashmir and the Government of Pakistan, wherein it has been shown that Government of Pakistan transferred the services of the employees of Food Department to the Government of Azad Jammu and Kashmir and it was agreed that the Government of Pakistan will contribute proportionate share towards the pensions of the employees, transferred to the Government of Azad Jammu and Kashmir. The correspondence observed by us and the notifications issued by the Government of Azad Jammu and Kashmir lead us to the conclusion that the officials, who were transferred to Azad Kashmir and accepted a job in Azad Kashmir in pursuance of orders of Government of Azad Jammu and Kashmir, were the servants of Azad Jammu and Kashmir Government for all practical purposes and such employees were subject to the laws of Azad Jammu and Kashmir. The Government of Pakistan ceased to have any connection with the affairs of such employees after the date of their transfer to the service of Azad Jammu and Kashmir i.e., 1- 7-1976 except that the contribution towards the pension is to be made by the Government of Pakistan as is normally done in all such cases, where a civil servant happens to have served under two Governments and there is an agreement between such Governments to share the expenses to be incurred, for the payment of pension.
8. In view of this, the argument put forth by the counsel for the appellant that authorities in Azad Kashmir had no power to pass order, of the appellant's retirement is repelled as being without any substance. No other point was canvassed before us by the counsel for the appellant.
9. The appeal is, therefore, dismissed, however, we do not make any order as to the costs.
M. Y. H./51-S/Lb/S