MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).--The appellant has brought this appeal against order No. 1395-1403 dated 7-6-1984, whereby he was retired from service and order dated 5-6- 1985, whereby his review petition against retirement order was rejected. The appellant raised a number of grounds in the appeal but the counsel for the appellant confined his arguments to only one ground that the Government of Azad Kashmir could not retire the appellant from service because the appellant was a servant of Government of Pakistan. According to him, he was in the service of Government of Pakistan, prior to 1-7-1976, when the Food Department (then known as Civil Supply Department) was functioning under the Government of Pakistan. According to the counsel for the appellant, even if the department was transferred to the Government of Azad Kashmir, the appellant remained a servant of Government of Pakistan, therefore, he was not governed by the service laws of Azad Jammu & Kashmir, nor the Government was competent to change the terms and conditions of the appellant. The learned counsel for the respondent pleaded that this Tribunal has already decided the point, in issue in the case of Agha Ghulam Hussain v.
Azad Government, therefore, the appeal merits dismissal. We perused the record and also requisitioned some record from the Food Department of Azad Kashmir Government.
2. It is correct that the appellant was a servant of Government of Pakistan, prior to the transfer of Food Department to the Government of Azad Kashmir but the notification No. 682-732/SF/76, dated 5-8-1976 shows that Directorate of Civil Supply and Transport, which was functioning for Azad Kashmir as well as for Northern Area was bifurcated into two Directorates i.e. One for Azad Kashmir and other for Northern Areas. The Directorate for Azad Kashmir, alongwith the entire staff working in the direction office as well as in the field was transferred to the Government of Azad Kashmir, with effect from 1-7-1976, in view of the aforesaid notification. The posts transferred have been indicated in Annexure 'A' to the notification. Then another notification was issued in continuation of notification dated 5-8-1967. The latter notification of 22-9-1976 contains the detail of the employees working against the pests, which were transferred through the earlier notification.
Appellant's services were thus transferred to the Government of Azad Kashmir in compliance with the aforesaid order. The appellant by his conduct opted to serve in Azad Kashmir, therefore, he can no longer claim to be a civil servant of Government of Pakistan.
3. So far as the terms and conditions of the appellant are concerned, those have not been changed. The Civil Servant Act of Pakistan also contains a provision authorizing the Government to retire a civil servant in the public interest after putting in 25 years service qualifying for pension. The relevant provision of laws in Azad Kashmir is in no wail different from the corresponding provision of Pakistan, therefore, it cannot be said that the terms and conditions of the appellant were changed.
The order of retirement is an action of Government of Azad', Kashmir in exercise of its lawful power and order passed by the Government does not amount to the changing of the terms and conditions. The retirement in public interest under the Civil Servant Act of Azad Kashmir or that of Pakistan is a part of the terms and conditions of civil servants. It may also be noted that once a person is treated as civil servant of Azad Kashmir Government, he will be subject to the laws of Azad Kashmir and cannot claim any different treatment, even if the laws of Pakistan are different, although there is no conflict in the legal position in Pakistan or Azad Kashmir in this respect as pointed out earlier. The counsel for the appellant had referred to an office order of Ministry of Kashmir Affairs No. E-1/1/74 dated 5-3-1977, which we had ourself placed on record, alongwith some other documents. The Ministry of Kashmir Affairs pointed out that civil servants in Pakistan could not be retired on completion of 55 years age, under normal rules, therefore, some persons retired in Azad Kashmir, under the rules, then applicable should be taken back in service, for the reason that the Government of Pakistan was providing funds far the establishment etc. To the Azad Kashmir Government. It was suggested that person retired after having attained the age of 55 years may be recalled. This office order is not a legal document and Government of Azad Kashmir is not bound by this office order passed by Joint Secretary of Kashmir Affairs Division. The law should have its own course, notwithstanding such an order, unless there is an agreement to the contrary. There is on file another document which is an extract from the minutes of the meeting between Kashmir Affairs Division and the representative of Azad Kashmir Government. Para 8, is reproduced below to which reference was also made by the counsel for the appellant:- "The staff of the Directorate dealing with A.J.K. Supplies as mentioned in Annexure 'A' will be transferred to A.J.K. Government and that dealing with Northern Areas supplied as mentioned in Annexure 'B' to the Northern Areas Administration on the date decided upon say 1-7-1976. The post of Director will be transferred to the Northern Areas Administration. However, hp will continue to function as Director, Civil Supplies and Transport of Kashmir Affairs Division for a few months to clear the arrears and old bills of contractors etc;
(b) As regards the conditions of the Azad Jammu and Kashmir Government regarding non- acceptance of the staff who have completed 25 years of service and those who do not possess clean record, it was made clear to the representatives of the Azad Jammu and Kashmir Government that since the Federal Government is paying for the establishment charges they will have to accept the staff as mentioned in Annexure 'A' including the staff of Liaison Office Karachi.
The Azad Jammu and Kashmir Government can deal with the staff according to their rules governing the temporary employees. However, the Pakistan Government will share the liability of pension contribution to the staff in respect of the service rendered by them under the Kashmir Affairs Division, as under the rules."
4. From the contents of the aforesaid paragraph of the minutes of meeting, it is clear that Government of Pakistan insisted upon the Government of Azad Kashmir to accept the staff, working in the department, under the Government of Pakistan but at the same time it was made clear that the Government of Azad Kashmir can deal with the staff according to the rules, governing the temporary employees. Thus, even if this letter is taken as an agreement between the two Governments, in respect of the employees, who were so accepted by the Government of Azad Kashmir, the Government is nevertheless competent to deal with the affairs of such employees under the laws in force in Azad Kashmir and by no stretch of imagination it can be concluded that such employees retain the status of civil servants of Government of Pakistan. It was rather indicated that such employees were to be treated as temporary employees. In view of the legal position in Azad Kashmir, the retirement of appellant could be ordered in the public interest because he had completed 25 years service, qualifying for pension. The impugned order thus suffers no legal defect, so as to give us a jurisdiction to interfere with the same.
5. The appeal is dismissed, with no order as to the costs.
A.A. /41-S/Lb/S