SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).----This is an appeal by Meer Maqbool Hussain Ex-Headmaster, Primary School, Battal, Tehsil and Distict Muzaffarabad. Through this appeal, the appellant has impugned Order No. SE/(SM)/1796/91, dated 30th of May, 1991 made by Secretary, Education Department, Azad Government by which the appellant was refused pension for the service rendered by him under the Azad Government and the foreign Government. The appellant has impleaded Azad Government through its Chief Secretary, Secretary, Education, Director, Education and the District Education Officer, Muzaffarabad as respondents for seeking his remedy against them.
2. In the memo. Of his appeal, it is submitted by the appellant that he joined service of Education Department as early as 22-10-1948 and completed 17 years of his service in that Department till 27- 9-1965. Thereafter, the appellant left for abroad for further education where he accepted service also for earning foreign exchange for his country. He remained on furlough leave and had resumed his duty on 20-9-1970. Soon after, the Government of Pakistan issued a Notification dated 23-9- 1970 to the effect that the civil servants desirous of service abroad will be permitted to do so and their stay abroad will be treated as foreign service provided they will contribute foreign exchange towards pension under rules. The appellant went back and once again joined the foreign service w.e.f. 19-6-1971 and remained in that service till 22-12-1975 and. Has been. Contributing foreign exchange as before. Thereafter, the appellant returned to his country and reported for duty in 1980.
But unfortunately he contacted liver disease and after some treatment at Rawalpindi he had to go back to England for further treatment. Now he is pulling on with the aid of oxygen and he has become quite unfit for back journey to his home. The appellant has been approaching the respondents for counting his foreign service and allowing him full pension for the service rendered by him because he had put in total service of 38 years. But respondent No. 2 rejected his claim and informed the counsel of appellant about that on 7-7-1991 without assigning any reason. The appellant seeks reversal of the impugned order on the following grounds:--
(i) That the order of respondent No. 2 is against law and facts and is liable to be vacated.
(ii) That the appellant was never served with any show-cause notice and the impugned order was ab initio void.
(iii) That the service of the appellant is intact and it has never been terminated by the respondents as yet.
(iv) That the impugned order is discriminatory and is also violative of rules of procedure. The appellant has not been afforded an opportunity of personal hearing by the competent Authority before making the impugned order and as such the said order is not maintainable for being against the principles of natural justice.
(v) That civil servants gone abroad have been benefited by the respondent/Government and service rules have been relaxed in their cases but the respondents have exercised their complete ignorance about the legitimate claim of the appellant.
(vi) That the grievances of the appellant were brought before the Prime Minister through an appeal by the appellant but no action was taken on that appeal, therefore, this appeal before this Tribunal.
3. At the end of his appeal, it is submitted by the appellant that the impugned order made by respondent No. 2 may be vacated and the respondents be directed to allow pension to the appellant for the service rendered by him and any other relief to which he may be held entitled may also be given to him.
4. The above-noted appeal was admitted for regular hearing in this Tribunal and the respondents were asked to submit their objections, 'if any. On behalf of the respondents it is submitted that the services of the appellant were dispensed with about 20 years ago because of his absence from duty and for that reason he is not entitled to get pensionary relief allowance. The appeal does not fall within the definition of a service appeal and the appellant is also not an aggrieved civil servant.
It is true that the appellant has rendered 17 years in the Education Department and No---Objection Certificates were issued to him to enable him to go abroad but he was never treated to be on duty for the period of his absence from his office. The appellant was never sent to a foreign country under some agreement nor he was given any assurance to be treated on deputation for the period of his foreign service.
5. We have considered the arguments as were addressed at the Bar by the learned counsel of each party. We have examined the contents of appeal and copies of the orders attached to it as well as the personal file of the appellant. It is duly admitted in the written statement placed on the file by the respondents that the appellant has been a Primary School Teacher in the Education Department and before proceeding abroad he had completed seventeen years' service. It is also admitted that he availed of furlough leave w.e.f. 10/1965 to 10/1966 and his total period of service combined with furlough leave comes to near about 18 years. It is also accepted by the respondents that the appellant. Has been going abroad with due permission of respondent/Government after obtaining No-Objection Certificates from the concerned quarters. But it is contended on their behalf that the appellant was never sent on deputation to join any foreign service in United Kingdom. He has not contributed any amount in the shape of foreign exchange to his parent Department and, therefore, he was not entitled to get pensionary relief allowance for the service rendered by him under the Azad Kashmir Government and in the foreign country. Tae appellant's service' in the Education Department was dispensed with about 20 years before his attaining the age of superannuation and for that reason he was not entitled to any pension. There is no denying the fact that the appellant remained absent from duty for a fairly long time but it seems that no disciplinary action was taken against him nor his service was properly terminated under some regular order of the Department. The appellant's claim of foreign service also appears to have been put forward on very flimsy grounds. The appellant has not supplied particulars of foreign service to his Department and he has simply placed it before Department that for such and such period he has been his in the service of foreign country and that period should be counted towards pension despite the fact that he has not actually made any contribution in the shape of foreign exchange to his Department. As per instructions of the Azad Government of the State of Jammu and Kashmir issued under No. Admin./717-57/74, dated 14-1-1974 only those civil servants are entitled to get foreign service included towards their pension who proceed abroad on deputation or under some agreement with the respondent/Government and the terms of agreement are strictly followed by the civil servant putting any kind of service abroad. In the instant case after issue of No-Objection Certificate by the respondent/Government the appellant was never heard of about his pursuits of life in the foreign country. If the appellant has been doing any service in the foreign country without the knowledge of his parent Department that service cannot be added towards the regular service which he had put in the Education Department.
6. It is next argued on behalf of the respondents that the present appeal cannot be defined to be a service appeal and as such the appellant was not legally entitled to invoke the jurisdiction of this Tribunal. This objection does not appear to be well-founded because under section 4 of Azad Jammu and Kashmir Service Tribunal Act, '1976 this Tribunal is competent to hear appeals against all those final orders whether original or appellate as are made by the Departmental Authority in respect of any of the terms and conditions of civil servants. It is duly admitted by the respondents that the appellant has been in the service of Education Department and hence the claim of pension being a necessary part of the terms and conditions of his service can be gone into by this Tribunal and it does have the jurisdiction to hear the present appeal. The objection is, therefore, repelled. At the same time it is further argued on behalf of the respondents that since the appellant has remained absent from duty for a number of years, he cannot get pension because his service stood terminated automatically long ago. We cannot contribute to this view that without a proper charge-sheet a civil servant can be deprived of his earned service benefits. If the respondents have hitherto failed to make proper order about the service of the appellant then it will be too late to place him under charge of absence from duty and thereby refusing him any service benefit. We agree with this view that the appellant cannot claim pension out of right, but his case should be sum pathetically considered for other benefits of service available under rules. With this observation the appeal is rejected.