1984 PLP (C (PLC(CS))

Kh. ABDUS SAMAD (MEMBER).‑Sh. Mahmood Ahmed, Ex‑Director of Education Azad Kashmir Government has filed this appeal against the order passed by the respondent under No. S&GAD, A‑2 (113) 18054/81, dated 10th September, 1981. By virtue of this order the period of service w. e. f. 20th October, 1972 to 10th March, 1976 under the Federal Government of Pakistan was not counted towards his pension by the respondent. The appellant prays for setting aside the Office Memorandum Annexure "G" issued by respondent and grant of pension for the additional service rendered by, him under the Federal Government of Pakistan.

3. Briefly the facts of the case are that the appellant was working as Officer‑on‑Special Duty in the Service of the respondent when on 19th October, 1972 his services were placed at the disposal of the Ministry of Education, Government bf Pakistan for appointment as O. S. D. In this order it was stated that during the period of his depu tation the appellant will hold lien against the post of Director, Education Annexure `A' and is reproduced for convenience and reference :‑ "Office of the Chief Secretary, S & GAD, Azad Government of the State of J & K. Notification.‑The Azad Government of the State of J & K is pleased to place the services of Sheikh Mahmood Ahmed presently working as O. S. D. in the Office of the Chief Secretary in the pay scale of 2,000‑100‑2,200 at the disposal of the Ministry of Education, Government of Pakistan' for appointment as O. S. D. in that Ministry. During the period of his deputation, Sheikh Mahmood Ahmed will hold lien against the post of Director, Education, Azad Government of the State of J & K. (Sd.) (S. REHMATULLAH KHAN), Secretary, S&GAD No. S & GAD/21217‑22/'72, dated 19th October, 1972. Copy to etc. etc."

4. After joining the service under the Federal Government of Pakistan the appellant was appointed as O. S. D. in the Ministry of Education, on deputation from A J & K Government for a period of 3 years. The relevant notification Annexure `B' reads as under :‑ "Government of Pakistan, Ministry of Education and " Provincial Co‑ordination. Islamabad, 21‑10‑1972 No. F. 3‑18772/ Admn.‑On transfer from the Azad Government of the State of J & K Mr. Sh. Mahmood Ahmed is appointed as O. S. D. in the Ministry of Education on deputation for a period of three years w. e.‑ f. the forenoon of 20th October, 1972. (S d.) (Dr. W. M. ZAKI) T. Pk. Deputy Secretary. Copy to :-- A copy of this notification was endorsed to Kashmir Affairs Division, Islamabad with a charge report."

5. The respondent issued an order on 24th February, 1973 retiring the appellant w. e: f. 10th March, 1973 and the appellant received pension till November, 1975. This order is, Annexure `C' and is reproduced for reference :‑ The concerned quarters of the Federal Government of Pakistan and the appellant were properly informed by the respondent about his order of retirement.

6. In spite of the retirement order issued by the respondent the appellant continued to serve the Government of Pakistan and he was promoted as Joint Secretary. He carried on as such till 10th March, 1976. The appellant on being relieved by the Federal Government of Pakistan, approached the respondent i.e. Azad Government of the State of J & K for counting his service in Pakistan for purpose of pension. The Central Minister for Education, Government of Pakistan addressed the following letter to the Minister for Kashmir Affairs Division, Government of Pakistan and Annexure `D' is reproduced below :‑ No. 846‑MKA (Admn) Minister for Education and Provincial Co‑ordination Islamabad, Feb. 7, 1977. My dear Qaim Ali Shah, In 1972, the Ministry of Education borrowed the services of Sh. Mahmood Ahmed from Azad Kashmir Government where he was working as Director of Education. It was stipulated that "during the period of his deputation" be would continue to hold lien on his substantive post (Annexure `A') and we appointed him in the Ministry for three years (Annexure `B'). However, within six months A. K. Government retired him (Annexure `C') we in the Ministry considered this in the light of notification. issued by Pakistan and A. K. Government assuring counting of service, rendered by an employee of either Government under the other Government towards pension (Annexures `D' and `E') and reached the decision !o continue to avail of his service in National interest. Later he was promoted and appointed Joint Secretary by the Government of Pakistan in which position he worked till 10th March, 1976. (2) Since then he has been trying to have his service under Govern ment of Pakistan counted towards his pension without receiving any positive response. The language of the relevant provisions of Kashmir Service Rules (Article 226) appears to support grant of extension in service in suitable cases and scores of precedents exist in which this has been done. I enclose a copy of Government order under which an identical case was given favourable consideration (Annexure 'F'). I shall, appreciate if you kindly assure that Azad Kishmir Government extends similar treatment to him, to which he is entitled both on account of his distinguished services and his eminence as a writer and research scholar. With kind regards. Yours sincerely (Sd.) (ABDUL HAFEEZ PIRZADA) Syed Qaim Ali Shah. Minister for Kashmir Affairs, Govt. of Pakistan, Islamabad.

7. All this bore no fruit and the appellant requested the President of Pakistan to intervene. The President of Pakistan as Chairman of the Council, directed the authorities for detailed report Annexure `F'.

8. This direction from the Chairman, Kashmir Council (President of Pakistan) resulted in office memorandum issued by the respondent Government Annexure `G' and is material for the disposal of this appeal. The respondent Government has explained their stand vide Annexure `G' in the following terms :‑ No. S & GAD/A‑2(113)/81 18054. S & GAD, Azad Government of the State of J & K, Muzaffarabad, The 10th September, 1981. Office Memorandum Subject :‑ Sh: Mahmood Ahmad Ex‑O. S. D. Education Department question regarding counting of service for pension. With reference to the CMLA Secretariat office Memorandum FO‑6085/GC/III/ML‑II/81, dated the 15th July, 1981 on the above mentioned subject, the undersigned is directed to invite a reference to this Government's letter No. S&GAD/19737‑38, dated 17th November, 1980 (Copy enclosed for ready reference). (2) For further elucidation, it may be stated that while holding the post of Officer‑on‑Special Duty in the Education Department of this Government Mr. Mahmood Ahmed was selected for appoint ment to an identical post in the Ministry of Education, Govern ment of Pakistan, Islamabad, at Mr. Mahmood Ahmad's or at that Ministry's own initiative under the scheme for exchange of officers between the Azad Government of the State of J & K and Government of Pakistan. He joined that Ministry on the 20th October, 1972. Apparently, having been unaware of his age of superannuation, that Ministry on its own fixed his period of deputation at three years. It was not, however, treated as a case of transfer on foreign service, or of deputation, in the strict sense of the term, and did not confer upon Mr. Mahmood Ahmed any title to be retained in service after attaining the age of superan nuation. (3) Under the Kashmir Service Regulations (K. S. R.) the age of superannuation of a Government servant in superior service was 60 years. Nevertheless, the Government reserved the right to require any such servant to retire at the age of 55 years. At the same time, a Government servant also had an option to seek permission to retire at that age. On introduction of the Civil Pension Rules, with effect from the 1st July, 1970 the age of compulsory retirement of all Government servants was refixed at 55 years. Government Servant who were prior to that date, governed by the relevant provisions of K. S. R. were given an option either to elect to continue to be governed by those Regu lations or to choose to be subject to the application of the new rules. Those who failed to exercise the option were to be governed by the new rules. Mr. Mahmood Ahmed does not appear to have exercised an option for either of the two sets of rules and thereby rendered himself liable to application of the new rules. As Mr. Mahmood Abroad had sometimes dec lared the 1st of March, 1918 to have been the date of his birth. the Accountant‑General, Azad Government of the State of J & K and Mr. Mahmood Ahmed on the 15th August, 1972 that he would attain the age of 55 years, and be deemed to have retired, on that date. Subsequently, the Services and General Administration Department, informed all concerned including Mr. Mahmood Ahmed that the President, Azad Government of State of Jammu and Kashmir had approved of his retirement from service on the 10th March, 1973 as he had at times declared his date of birth to have been the 10th March, 1918 also: Further, on an application for grant of pension submitted by Mr. Mahmood Ahmed, the Services and General Administration Department conveyed on the 19th June, 1973 the President's sanction to the grant of pensionary benefits to him and commu tation of part thereof. (4) As mentioned in 3 above, Mr. Mahmood Ahmed had retired compulsorily on attaining the age of 55 years in accordance with the Civil Pension Rules, 1970. Even, the requirements of K S R Nos. 226 and 229 which bad ceased to be applicable to him as stated above, were fully met by the issuance of intimation and orders, referred, to as well as through submission by him of an application for grant of pensionary benefits. All these steps are irretraceable and irrevocable. Under the normal rules, even a mere option to seek retirement before the age of superannuation is treated as final and is not allowed to be withdrawn. Having readily complied with the orders of retirement despite his so- called deputation for three years on which he is now laying great emphasis and after receiving the pensionary benefits conse quential thereto Mr. Mahmood Ahmed's agitation against his retirement on the 10th March, 1973 is an afterthought. His claim to retention in service upto the aforementioned date is misconceived and untenable. The Ministry of Finance and Establishment Division, have, in unequivocal terms advised that Mr. Mahmood Ahmed is to be treated as a retired employee of the Azad Government of the State of J & K with effect from the 10th March, 1973 and the period of his appointment under the Government of Pakistan is to be treated as of re‑employment. (5) The Finance Division has conceded that it was for this Govern ment to take a decision on the question of Mr. Mahmood Ahmed's retirement. It is evident from the facts stated above that this question has been finally settled. And, it is a well -established principle that settled issues should not be reopened. Finality of a Government decision cannot be nullified on the ground whether the same hurts anyone else or whether any additional financial burden is created on Government Rules and Regulations are intended to ensure smooth functioning of Governmental agencies and uniformity of treatment to all con cerned. One who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or misuse by Government of its power. None of these elements are involved in the instant case. Mr. Mahmood Ahmed has, as a matter of fact, been retired from service on attaining the age of superannuation, not as a measure of punishment. (6) Mr. Mahmood Ahmed has himself admitted that an amendment to his retirement order, and grant of extension in service to him will involve an increase in the amount of pension, though it will be reimbursed by the Government of Pakistan. Whether the incidence of increase in' pension otherwise not admissible to him falls on this Government of Pakistan is immaterial. The .fact of the matter is that it does create additional financial burden. Pensionary claims payable by this Government from a part of its non‑development expenditure, bulk of which? met by re curring progressive annual grants made by the Federal Govern ments. (7) It has already been stated that the precedents quoted by Mr. Mahmood Ahmed are not relevant to his case. (8) The undersigned, is therefore to state that this Government regrets its inability to find any valid justification to review the decision already taken in the case of Mr. Mahmood Ahmed and acted upon. C M L A Secretariat RWP (Sd.) (Commodore Ejaz Mehdi), P N (RAJA ABDUL KHALIQ KHAN), Copy to etc Secretary S&GAD

9. The appellant alleges that this office memorandum is the final order that has entitled him to file this appeal under section 4 of the Service Tribunal Act. On the basis of this office memorandum Annexure 'G' the appellant has attempted to bring his appeal within the scope of the above section 4 of Service Tribunals Act, 1975. The grounds as alleged by him are that soon after completion of his service with the Government of Pakistan on 10th March, 1976. he made his representation to the respondent on 28th May, 1976 and the same is Annexure 'H'. He prayed for inclusion of his service rendered in Pakistan towards pensionary benefits as has been provided in the notification of A J & K Government No. S&GAD/2027/78/CS/73, dated 22nd February, 1973. The same is shown as Annexure 'I'.

10. The respondent Government rejected the representation on 5th January, 1977 under section 12 of A J & K Civil Servants Act, 1976. This is Annexure'`P. The appellant challenged the. plea of the respondent. All the time the request of the appellant was turned down by the Government. 11. 'The matter of counting of service rendered by the appellant with Government of Pakistan towards pensionary benefits ;vas considered by the Chief Executive, Chief Secretary. Secretary Finance, on different occasions, and all the representations and requests, as' made by the appellant did not meet any favour and the appellant was forced to seek remedy in this Service Tribunal on 12th December, 1981, saying that his case was finally rejected by the Government on 10th September, 1981 intimated to the appellant on 19th November, 1981. The same order is Annexure'G'. The appellant prays for setting aside of the order dated 10th September, 1981 Annexure `G' on the ground that under reciprocal arrangements retirement between the two Governments i.e. Azad J & K and the Government of Pakistan, the appellant is entitled to additional pension and that his retirement from A. K. Service does not debar him from his right.

12. It is on record that the appellant has all along been approaching the higher authorities of the Government of Pakistan and Azad Kashmir, but his claim was not accepted by the respondent. The Government of Pakistan, on the representations of the appellant, sought clarification from the A. K. Government. The President of Pakistan in the capacity of Chairman, Kashmir Council and Chief Martial Law Authority also interfered but with no success for the appellant.

13. On 29th May, 1:382 the appellant put in an application in the Tribunal for condonation of delay and the learned Member of the Tribu nal (My Predecessor) recorded the order and relying on 1981 P L C 763, and left the point of limitation open for determination by the Tribunal. (Unfortunately, this citation is not relevant to the present appeal).

14. The respondent through Advocate‑General denied the claim of the appellant and written objections to this effect explain their stand. The respondent has taken up specific stand regarding the retirement of the appellant from Civil Service of Azad Kashmir. The office memo randum claimed to be the final order of Government by the appellant has been‑denied by the respondent in the following form :‑ Office Memorandum this form shall be used :‑ (a) For correspondence between various departments. (b) For conveying information not amounting to an order of Government to attached Departments and subordinate authori ties. Beside;, it has been pointed out by the respondent that the appellant was retired fro the Civil Service of A.K. Government on 24th February, 1973 and on the basis of this order the appel lant received the pension from the respondent‑Government. After that order of retirement and pension of the appellant was not a Government servant and was only a pensioner. Prior to his order of retirement the appellant was properly informed by the respondent‑Government, about L. P. R., and the age of superannuation. The appellant did not object to the action of respondent. He received the amount of pension and kept on serving the Government of Pakistan. In directly the plea of the respondent is to the effect that after 24th February, 1973 the appellant was no more in the service of A. K. Government and his service with the Government of Pakistan is no more respon sibility or liability of the respondent. The respondent prays for dismissal of the appeal.

15. The learnt6a counsel of the parties have argued this appeal. The appellant requested for permission to argue his appeal personally. He was permitted.

16. The appellants counsel has referred to the order of retirement of the appellant issued by the‑respondent‑Government.

17. The appellant has laid‑ great emphasis on the service rendered by him with the Government of Pakistan after his retirement from Azad Kashmir Civil Services saying that this period be counted towards pension, The Government of Pakistan has to pay this pension and A. K. Government has to undergo no financial loss. lie prays for enhancement in his pension. He has challenge the order of retirement issued by the respondent, saying that the same cannot be issued because he was serving Pakistan Government as a deputationist and could not be retired before the completion of deputation. At the time of his deputation to Govern ment of Pakistan, the period of deputation was not fixed by the A. K. Government, and this period was to be treated as 3 years as he continued to serve the Government of Pakistan. Though he was retired by the respondent‑Government, and after counting the period of L.P.R., the period of deputation comes to 20 days only. He contends that deputa tion for a period of 20 dais is no deputation and his period of deputation is to be counted as 3 years. He has again relied on .the correspondence (Already on file) between Government of Pakistan and A.J.K. Govern ment, whereby the matter of retirement, deputation and lien remained unsolved controversy.

18. In order to appreciate the factual position of the appellant's prayer, it is necessary to reproduce the 'Annexure `Q'. This annexure explains the controversy between the appellant, Government of Pakistan and A.J.K. Government. In my opinion the real cause of action and the prayer of the appellant becomes very clear. The same is reproduced here: (Personal Pad the appellant used) February 28, 1979. The President, Azad Kashmir Government, Muzaffarabad. Sir, Sub : Request for calculation of my service in Pakistan towards pension. It is now three and a half years since I am trying to secure formal orders of Azad Kashmir Government to the inclusion of my service in Pakistan towards pension. The notification of the two Govern ments in this regard are so clear, unequivocal and mandatory, that the long delay in meeting my request has been exceptionally oppressive, particularly because in effect, it has deprived me of my pension for the last 3 years and 3 months. One point which I do not appear to have been able to make sufficiently clear is that acceptance of my request does not involve any financial burden for Azad Kashmir. I shall confine my present application to yet another elucidation of this point. The audit office reported to you once that if my request is accept ed, I shall have to be paid additional commutation money of Rs. 20,148 and my pension will increase by Rs. 120 p.m. This is the expense side of the case. On /the income side A.G. Azad Kashmir will be entitled to claim from A.G.P.R. My leave and pension contribution for the period of my service in Pakistan which works out to about Rs. 24,

000. He will also claim refund of the pension I have received during the period of the pension I have received during the period of my Pakistan Service which comes to Rs. 8,

673. Total receipts of A.G. Azad Kashmir, add upto Rs. 42,

673. This amount more than compensates for the two items of expenditure, viz. Rs. 20,000 as commutation and Rs. 120 p.m. as pension. After paying me Rs. 20,060, Rs. 22,000 are left over with Azad Kashmir which give a return of Rs. 120 p.m. in fixed account, out of which I have to be paid Rs. 120 p.m. only. This means that Azad Kashmir Government far from bearing any financial burden, has a net advantage of about Rs. 100 of permanent income on account of the acceptance of my request. I hope with this clarification you will be able to see that the non- agreement of Finance Department of Azad Kashmir is the result of my inability of bringing home to item this point. Because if a case is supported all the way by rules and involves no expenditure, it is the duty of Finance Department to accord acceptance to it, even if it is regarded a case whose reference to Finance is at all necessary. I request for your personal consideration of this. case and your early decision on it. Yours obediently, (Sd.) (Sh. Mahmood Ahmad)

19. After this request to the President A.J.K. Government by the appellant, the matter was taken up by Secretary, Finance Division, Government of Pakistan. This letter is Annexure 'R' and very fairly speaks about the plea of Respondent‑Government with regard to the claim of the appellant. We, reproduce the same for reference and con venience (Annexure 'R'). No. FD/69/79 The 9th June, 1979. My dear Muhammad Nazir. We spoke about the pension case of Sh.' Mahmood Ahmed Ex -O.S.D. A.K. Government a few days ago. (2) I enclose a self‑contained summary giving the main fact of the case. To facilitate a proper understanding of the matter I also attach relevant copies of noting and correspondence. (3) I would draw your kind attention to the main fact that the Officer accepted his retirement and drew his pension, gratuity commutation etc. in 1973 immediately after the issue of retire ment orders but continued to draw full pay from A.‑G., Pakistan Revenues, Islamabad. . In this connection the D.O. Letter, dated 2nd June, 1978 from Chief Executive A.K. Government to Brig. M.A. Ghosi, Officer on Special Duty Establishment Division, narrates very succinctly the salient features of the case: (4) You will kindly note that the matter of his retirement was deliberately not made known to A.‑G., Pakistan Revenues, Islamabad. An effort was made to get L.P.R. from Pakistan Government and even additional pension which was turned down by Establishment Division vide letter No. 8/20/75‑C.I., dated 14th October, 1975 and U.O. note No. 8/20/75 C. I., dated 29th November, 1976 as service in Pakistan was less than five years. (5) It was only when full facts came to the notice of the Accountant- General, Pakistan Revenues, Islamabad, and Establishment Division and an overpayment was discovered that the Officer started a case for getting an extension of service in Azad Kashmir Government to wipe out this liability as intimated by the Accountant‑General, Pakistan Revenues, Islamabad. (6) I have been advising that there is no case for reconstruction of facts especially because of the fact that the officer submitted a pension application and draw all his dues in 1973 after the issue of retirement orders. At that time the retirement age in Azad Kashmir was 55 years. The Officer in my opinion was lucky to have secured re‑employment in ‑Pakistan Government. Increase in pension is never allowed for re‑employed Service. (7) I have been directed to seek your kind advice in the matter namely that in similar circumstances the ruling of the Finance Division would be on the same lines as given by my office here. With best regards, Yours sincerely, (Sd.) (Muhammad Shafi) Mr. Muhammad Nazir, Joint Secretary, Finance Division, 'Q' Block, Islamabad. The above annexure was written by Muhammad Shafi the then Secretary, Finance, A. J. K. Government, Muzaffarabad to Muhammad Nazir, Joint Secretary, Finance Division, Government of Pakistan who replied as under D.O. Annexure 'S'. From: Muhammad Nazir, Joint Secretary, Tel. 20293. D.O. No. 633‑R‑7/79 J Ministry of Finance Government of Pakistan Islamabad. 25th June, 1979. My dear Muhammad Shafi, Please refer to your D.O. letter No. F.D./P.A./67/79, dated the 9th June, 1979 regarding the case of Sh. Mahmood Ahmed, Ex- O.S.D., A.K. Government. We agree with the views expressed in Establishment Division D.O. No. 8/20/75‑C.I, dated 29th November, 1976. Mr. Mahmood Ahmed will be treated as a retired employee of A.K. Government w.e.f. 10th March, 1973 and re‑employed by Government of Pakistan. His pay will be fixed accordingly. With regards. Your sincerely, (Sd.) (Muhammad Nazir) Mr. Muhammad Shah, Secretary, Finance Azad Government, A.K. M'abad.

20. Vide Annexure 'J' the appellant was informed by the respon dent that his request cannot be accepted and his claim for counting of his service in Pakistan, towards pension was turned down. Again the appellant addressed another application to the President A. K. Govern ment vide Annexure `V'. The appellant was not satisfied with the views of the Secretary, Finance A.K. Government Mr. Muhammad Nazir, Joint Secretary, Government of Pakistan wrote another letter to the then Secretary Finance (Mr. Ehsanul Haq), A. K. Government on 17th December, 1979. It was pointed out by the Joint Secretary that the main contention of Mr. Mahmood is that his retirement from Azad Kashmir on attaining the age of 55 years was not justified. A decision on this point entirely rests with the Azad Kashmir Government. As regards the financial implications etc, incidental to the acceptance of Mr. Mahmood Ahmed's requests, the issue is yet hypothetical. We therefore, have no further comments to offer. With regards, Yours Sincerely (Sd.) (Muhammad Nazir) Mr. Ehsan ul Haq, Secretary Finance, A.K. Government, M'abad.

21. The matter remained under correspondence between the con cerned authorities in A.K. and Government of Pakistan. It is on record that all the concerned authorities were prompt in replying the letters, applications and representations of the appellant. On 5th January, 1976 the appellant addressed an application to the then Prime Minister (Khan Abdul Hamid Khan) and requested that the order of retirement be amended as be had put in 3 years service with Pakistan Government. On 28th May, 1976 the Prime Minister recorded his order asunder

22. Apparently the order of Prime Minister was subject to Rules and Regulations, and on the basis of office memorandum (already referred) Annexure `G', dated 19th November, 1981, the appellant preferred this appeal on 12th December, 1981. Relying on 1981 P L C 763, the appel lant presented an application for condonation of delay on 29th May, 1982. This citation as referred to by us is quite different from the facts of the present appeal.

23. The controversy between the appellant and the respondent be comes very clear from the applications, representations of the appellant made to the respondent‑Government after his retirement from the service of Government of Pakistan. The Secretary, Finance of Azad Kashmir Government vide his D. O. Annexure 'R' has also been of great help in appreciating the real controversy between the parties. The memorandum of appeal, and the written objections of the parties are also material for disposal of this appeal.

24. The appellant during his arguments referred to all the annexures on the file and he successfully traced the history of his long service in Azad Kashmir and Government of Pakistan.

25. We have considered, the appeal as a whole and after going through the record as requested by the appellant, we have come to the conclusion, that the appellant's service under Azad Kashmir Government came to an end when he was retired on 10th March, 1973, but was serving the Government of Pakistan. After his retirement from A. K. Government Service he applied for pension and another benefits. (Past Service). He was accordingly paid all the pension as demanded by him under the then rules of pension. So, after receiving pension from the A. K. Government, he was no more a Government Servant, but he remained only a pensioner before the respon dent and continued in service the Government of Pakistan as Joint Secre tary till 10th March, 1976. The period of service rendered by the appellant with Government of Pakistan was not counted by the respondent towards pension and the request of appellant for amendment of retirement order was turned down. The important matter that deserved thorough consideration by this Tribunal is about the accrual of cause of action. Under Article 226, K. S. R., the respondent issued the Government order for the retirement of appellant and the same order was conveyed to the Government of Pakistan. The appellant could be aggrieved only with the order of retirement dated 10th March, 1973, but he did not challenge this order at the relevant time and remained satisfied with the pension and other consequential benefits.

26. The appellant never challenged the order of retirement till the matter of overpayment in favour of appellant came to the notice of Government of Pakistan (A. G. P. R.). The appellant started a case for counting of service and amendment in his order of retirement, as issued by respondent. The D. O. of Secretary, Finance A. K. Government Annexure `R' is self‑explanatory and throws light on all the aspects of the appellants service in Pakistan and his retirement from A. K. Government. His request for additional pension has been turned down by the Pakistan Government, on the ground that his service in Pakistan was less than 5 years. The appellant has finally relied on the bilateral agreement between the Government of A. K. and Government of Pakistan regarding pension and other emoluments of officers both the Governments (on deputation etc). In this amendment the relevant office memorandum Annexure 'AF' is very clear. The appellants claim could be accepted by the Pakistan Government on the basis of his continuous service with A.K. Government. Unfortunately his service came to an end in 1973 and the office memorandum `AF' is not relevant to his case.

27. Since the question of limitation and cause of action are material questions for the disposal of this appeal and considering the appeal, we are of the opinion that under section 4 of the A J K Service Tribunal Act, 1975, the terms and conditions of the appellants service have not been violated. The appellant very gladly received the amount of pension commutation, gratuity etc under the rules of pension in 1973. His service came to an end and his lien, and deputation also came to an end when be was retired by A. K. Government under Article 226 K. S. R. at the age of 55 years. Deputation and lien were part of his service with A. K. Government and these elements came to an end at the time of retirement. Office Memorandum Annexure `G' was addressed to Commo dore Ejaz Mehdi P. N. of M. L. A. Secretariat, Rawalpindi by Secretary, Administration A. K. Government. This was done in reply to Office Memorandum Annexure 'F' written by the said Officer from C. M. L. A's Secretariat. Both the Office Memorandum F & G relates to the Service of appellant in A. K. and Pakistan and the story of his retirement. These memoran dums do not decide or alter the terms and conditions of appellants service, since these terms came to an end in 1973 vide Government order Annexure 'C'. Consequently upon that he was no more a Government servant and was only a pensioner of the respondent‑Government.

28. Finally the prayer of the appellant for amendment of order o pension Annexure 'C' and enhancement in the same is quite untenable These matters are not covered by section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975. The appellant has failed to make out any case and the said appeal is not maintainable. The facts and merits of the case also do not help the appellant. Besides, the citation 1981 P L C 763 is not at all applicable and relevant to the facts of this appeal for con donation of delay.

29. As discussed above, the appeal is clearly time‑barred on the ground that the appellant was competent to challenge the Government Order Annexure `C' issued on 24th February, 1973. The appeal has been presented on 12th December, 1981 after a lapse of about 8 years. Condona tion of this period under section 5.12 of the Service Tribunals Act and section 4 of Service‑Tribunals Act, 1975 is not warranted. The facts and merits of the appeal do not help the appellant, besides this appeal being time‑barred is dismissed, but with no order as to costs. JUSTICE SARDAR MUHAMMAD ASHRAF KHAN, (CHAIRMAN).‑While agreeing with the judgment recorded by the learned Member of this Tribunal that this appeal is liable to be dismissed both on legal grounds as well as on merits, I would like to add few lines in support thereof. The facts giving rise to the present appeal are given in detail in the judgment of the learned Member which I need not repeat here and I, therefore, straightaway proceed to take up for discussion the points requiring determination in this case and to give my decisions thereon. As regard the legal position, it may be stated that this appeal is not maintainable on account of both being incompetent as well as barred by limitation. Section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975 (hereinafter referred to Act) confers right on the aggriev ed civil servant to file an appeal before this Tribunal against any final order, whether original or final, made by a competent authority in respect pf any of the terms and conditions of his service including the disciplinary matters and thus the present appeal shall be maintainable before this Tribunal only if it has been preferred against any order whether original or final made by the competent authority in respect of, any of the terms and conditions of the service of appellant. But, in my view, so‑called order impugned in this appeal cannot be considered to be either original or final order of the competent authority pertaining to any of the terms and conditions of the service of the appellant and as such the appeal against it does not lie. The case of the appellant appears to be that he was entitled to extension in service till 10th March, 1976, the date upto which he served under the Government of Pakistan on being sent on deputation and to counting of his service rendered under the said Government towards his pension but he was unlawfully retired from service with effect from 3rd October, 1973 by the Azad Kashmir Government vide its order, dated 24th February, 1973 (Annexure 'C'). The claim of the appellant, for extension in service and for counting his period of service under the Government of Pakistan towards pension, is not tenable and cannot be admitted without first setting aside the order of his retirement. The appellant, thus, had the right to file an appeal against the aforesaid order of the Government or any final order passed by its on his application for review against the same but the impugned order, dated 10th November, 1981 cannot be considered by any stretch of imagination, to be a final order of the competent authority made on' his review petition against the order of his retirement which in fact is only an office memorandum issued in reply to the office memorandum received by the Chief Secretary of the Azad Kashmir Government from' the Chief Martial Law Administrator's Secretariat Rawalpindi. It appears pertinent to briefly mention the circumstances which resulted in the issuance of the said memorandum by the Secretary, Services and General Administration, Azad Government of the State of Jammu and Kashmir. What happened was that the appellant submitted a petition to the General K. M. Arif, Chief of Staff to the President of Pakistan and Chief Martial Law Administrator, Rawalpindi (Annexure 'AB') wherein referring to his previous petition to the President of Pakistan, dated 17th March, 1980 for directing the Azad Kashmir Government to include the period spent by him in the service of the Government of Pakistan for the purposes of his pension, a request was made to him to take up the matter with the Azad Kashmir Government and issue directive for the counting of his aforesaid service towards his pension as a last resort, whereupon the Chief Martial Law Administrator Secretariat issued an office memorandum on 15th July, 1981 under the signature of Ijaz Mehdi, Commodore PN which was addressed to the Chief Secretary of the Azad Kashmir Government. In para. 3 of the said memorandum, it was stated that "the President had been pleased to direct that a detailed report as to why the request of the appellant which neither hurts any incumbent in office nor imposes any financial burden on the Azad Kashmir Budget could not be acceded to". It was, the reply to the above office memorandum that an impugned office memorandum embodying the detailed grounds on which the appellant's request for counting of his service rendered under the Government of Pakistan towards his pension was refused. Thus in view of the circumstances enumerated above, the impugned office memorandum cannot be treated to be the final order of the Government of Azad Kashmir made in respect of any of the terms and conditions of the services of the appellant thereby giving rise to the right of appeal‑ against it to him before the Service Tribunal under the Act. It was, as stated earlier, the com. munication of information asked for by the Chief Martial Law Administrator's Secretariat and not any order on the representation of the appellant against the order of his retirement to the Azad Kashmir Government which was only the competent authority to review the said order. It needs hardly any mention that office memorandum is not a Government Order and it is used for correspondence between various departments and for conveying information not amounting to an order of the Government to attach departments and subordinate authorities. In this view of the matter, it is not a final order, as alleged by the appellant, made by the competent authority pertaining to the terms and conditions of his service as is visualized by section 4 of the Act providing right of appeal against the same before the Service Tribunal. It may be out of place to mention here that the averment made in para. 7(iv) of the memorandum of appeal to the effect that the representation of the appellant addressed to the President of the respon dent Government on 22nd June, 1981 was finally rejected by the said Government on 10th November, 1981 and he was intimated about it on 19th November, 1981 by endorsing a copy of the same (Annexure `C'), does not appear to be factually correct because, as stated earlier, the above‑impugned memorandum was not an order made on the aforesaid representation of the appellant but was only a reply sent to the Chief Martial Law Administrator's Secretariat Rawalpindi in response to their office memorandum dated 15th July, 1981. A number of repre sentations of the appellant for setting aside the order of his retirement and for counting of his service rendered under the Government of Pakistan towards his pension had already been rejected by the compe tent authority. For the above reasons, the appeal against the impugned officer memorandum does not lie before the ‑service Tribunal which is liable to be dismissed on this score alone. Even, if it is assumed for the sake of argument that the impugned order was made on the representation of the appellant, dated 22nd June, 1981 addressed to the President of the respondent‑Government, it cannot be treated as final order of the said Government made in respect of any of the terms and conditions of the service of the appellant thereby con ferring upon him the right' to file present appeal under the Act. The case of the appellant himself, as made out in para. 7 of the memo randum of appeal, is that he had made his first representation against his retirement order on 28th May, 1976 (Annexure 'H' which was rejected vide order, dated 5th January, 1977 (Annexure 'J') and that his subse quent Second, Third, Fourth and Fifth representations were also rejected vide orders, dated 1st March, 1977 (Annexure `E'), 24th November, 1979' (Annexure 'T') 17th November, 1980 (Annexure 'Y') and 10th September, 1981 (Annexure 'AA'), respectively. Thus in the light of the above stand taken by the appellant the final order passed on his representation against the order of his retirement would be considered to be one made on 5th January, 1977 and not the one passed on any of his subse quent representation made by him after his rejection .of his first one. The appeal of the appellant is, therefore, also not competent against the so‑called Government Order impugned in this appeal as the same is not final order of the competent authority which can only be made the subject of appeal before the Service Tribunal under section 4 of the Act. This appeal is also not entertainable yet on the other ground. Under Article 49 of the K. S. R. a Government Servant is given the right to make a review application against the Government Order of which he is aggrieved within 90 days of‑the passing of the said order. The appel lant was retired by virtue of Government Order, dated 22nd February, 1973 but no application for review against it was made to the Govern ment by the appellant within the stipulated period referred to above. On the contrary, he acquiesced in the order of his retirement without any demur and accepting the same got the pension sanctioned in his favour and consequently received the amount of commuted pension, gratuity as well as monthly pension till November, 1975. Proviso (a) to section 4 of the Act, envisages that no appeal against any order of the competent authority shall lie to the Service Tribunal unless the civil servant aggrieved by it has first availed of departmental remedy provided under law and since the appellant had failed to avail of the departmental remedy of review available to him against the order of his retirement before coming to this Tribunal by way of this appeal, he was debarred from lodging an appeal against the same. The representation made by the appellant to the then Prime Minister of Azad Kashmir Government for the first time on 28th May, 1976 shall not be considered to be a review petition against the order of his retirement which he had the statutory right to file, as the same was made beyond the period prescribed under law for such a review petition. Therefore, the present appeal is no maintainable as having been filed without first availing of the depart mental remedy against the order of retirement of the appellant provided under law as filing of a review petition after the lapse of prescribed period of limitation does not amount to availing of departmental remedy. This appeal is also hopelessly time‑barred. Under section 4 of the Act, a Civil Servant aggrieved by the final order of the competent autho rity, whether original or appellate, has the right to file an appeal against it before the Service Tribunal within the period of 30 days from the date of the communication of such order. It is the case of the appellant himself that his first representation for the amendment of the order of his retirement and grant of extension in service was rejected on 5th January, 1977 and he was intimated of the same vide letter (Annexure 'J') and thus in view of the above stand of the appellant, the final order of the competent authority in this case for the purpose of appeal before the Service Tribunal shall be deemed to be the one which was passed by it on 5th January, 1977 on the representation of the appellant against the order of his retirement. But the appellant failed to come to this Tribunal in appeal against the said order within the aforesaid prescribed period and had, in his own wisdom chosen to file the present appeal more than four and half years after the passing of the same. The appellant claims this appeal to be within time on the ground that although his claim was rejected a number of times, but it was reopened each time on representa tion submitted by him with the result that the period of limitation shall commence from the order passed endorsed to him on 19th September, 1981. The above contention of the appellant is not tenable under law and is devoid of any substance. Assun3ing but not conceding for the sake of arguments that his first representation, dated 28th May, 1976 was a valid review petition against the order of retirement of the appellant, the final order of the competent authority on it shall even then be the one passed on the said representation on 5th January, 1977 and not any subsequent order made on his any representations submitted by him after the rejection of his aforesaid first representation. The appellant's repeated representations made subsequent to the rejection of first one to the different authorities of both the Government of Pakistan and Azad Kashmir, carry no legal value as having not been made under any vested service right and consequently are of no avail to him for bringing his appeal within the limitation. They will not have the effect of suspending the period of limitation which had already started, running from the date of the final order of the competent authority referred to above nor will keep it alive till the filing of the present appeal. If such a device is held to be permissible in law then the very purpose behind prescribing the period of limitation within which a civil servant aggrieved by the final order of the competent authority has the right to file an appeal against it shall be frustrated as there could be no end to the filing of the fresh representation after the rejection of the previous one. The order passed on the review petition against the Government Order allowed under law shall be the final order of the competent authority for the purpose of appeal to the Service Tribunal under the Act and subsequent unnecessary representations/review petitions filed after the rejection of the first one, permissible by law, will not keep the matter alive for the purpose of limitation. It is settled‑principle of law that if a civil servant has exhausted his legal departmental remedy provided under law to him and the competent authority has passed final order, the period of limitation for filing an appeal under the Act, cannot be extended in his favour on account of his chosing on his own whims and fancy to keep on filing representations to the authority which had already closed his case by making final order to keep the period of limitation alive. The above view finds full support from the cases cited as 1982 P L C (C. S.) 151, 1982 P L C (C. S.) 461 and 1984 P L C (C. S.) 54 and

130. This being the legal position, the period of limitation in this case had started running from tae date, the appellant" had received the order, dated 5tb January, 1977 whereby his first repre sentation was rejected and not from the date of any subsequent order made on his any further representation to the Government. Apart from the above reasons, even in view of the case made out by the appellant himself in the memorandum of appeal, the period of limita tion in this case cannot be reckoned from the date of the impugned order. The impugned order, as stated earlier, is not an order of the Government made on any representation of the appellant against the order of his retirement but is only an office memorandum sent to an officer of the Chief Martial Law Administrator Secretariat in reply to an office memorandum seeking certain information from the Chief Secretary of the Azad Kashmir Government. According to the appellant himself, his fourth representation to the Government was rejected on 17th November, 1980 (Annexure `Y') and thus even if, it is assumed for the argument's sake that the order passed by the Government on his last representation is to be deemed final order for the purpose of limitation in this appeal, the same is still barred by limitation by more than one year. For the reasons stated above, this appeal is liable to be dismissed on the ground of having been filed beyond the period of limitation. During the pendency of this appeal, the appellant had filed an appli cation on 29th May, 1982 requesting therein that if the Tribunal considers the appeal being time‑barred, it may condone the delay occurred in filing the same. I do not find any sufficient cause for acceding to the above request of the appellant because the mere fact that the appellant kept on making unnecessary representations even after the rejection of his review petition against the order of his retirement, allowed by law cannot be considered to be sufficient cause for condoning the delay of more than four and half years caused in the presentation of this appeal. Even on merits this appeal has substance. The appellant has assailed the order of his retirement and rejection of his claim for extension in service and counting of the period served by him under the Government of Pakistan towards pension on the fol lowing grounds :‑ (1) That the Government Notification, dated 19th October, 1972 placing the service of the appellant at the disposal of the Government of Pakistan on deputation contained unequivocal commit ment and unqualified assurance that during the period of deputation, the appellant will hold his lien against the post of Director of Education Azad Jammu and Kashmir Government and as such the Government was under the legal obligation to grant extension in his service as prayed for by him and was debarred from retiring him on his attaining the age of 55 years. (2) That the appellant was entitled to the extension to service under the provision of Article 226 of the K. S. R. instead of being liable to be retired under it, in view of the fact that the then Minister of Education, Government of Pakistan in a D. O. letter to the then Minister of Kashmir Affairs had stated that "the Govern ment of Pakistan had reached the decision to continue to avail of the service of the appellant in the national interests", and had further appraised his service as "distinguished" and that since the word "useful" appearing in the aforesaid Article, is fully covered by the word "distinguished", the Government was under legal obligation to grant extension in his service, inasmuch as the aforesaid Article of the K. S. R. prohibited the retirement of the Government Servant on the attainment of the age of 55 Years, who was capable of rendering useful service. (3) That in the absence of any period of deputation having been specified in the order of deputation, the unwritten convention is that the same shall be deemed to be for three years and as such the appellant could not be retired by the Government only within five months after being sent to the Government of Pakistan on deputation. (4) That there is no precedent of Government Servant having ever been sent on deputation to the foreign service whose retirement was due within a few months and since the appellant was due retire within the period of five months, when his services were placed at the disposal of the Government of Pakistan on deputa tion, his service shall be deemed to have been extended till he remained in the service of the said Government. (5) That under ‑the Government Notification No. S&GAD/2038‑78/CS/73, dated 22nd March, 1973, Annexure 'I', the service of the appellant rendered on deputation under the Government of Pakistan shall be treated as qualifying service for the purpose of pension and therefore, his retirement is unlawful and the Government could not refuse extension in his service as prayed for by him and was bound to count the same towards his pension. (6) That in identical cases, the extension in service was granted to a number of officers by the Government and therefore, the appellant was also entitled to similar treatment. Now, I proceed to take up the above grounds seriatim for considera tion and decision thereon. As regards the contention of the appellant mentioned at (1) above that under the terms of his order of deputation, he was entitled to extension in service I am unable to subscribe to the meaning given to and interpretation placed by him on the Notification of the Government, placing his services on deputation at the disposal of the Ministry of Education, Government of Pakistan for appointment as Officer‑on‑Special Duty. It is, of course correct that according to the above Notification the appellant's lien was kept against the post of the Director of Education, Azad Jammu and Kashmir Government during the period of his deputation but by no stretch of imagination, the above stipulation had the effect of extending his service beyond the age of 55 years under Article 226 of the K. S. R. or keeping his lien against the aforesaid post so long as he served under the Government of Pakistan. Such an interpretation would run counter to the definition of lien given in Article 21 of the K S. R. according to which "lien means .the title of the Government servant to hold substantively or in an officiating capacity either immediately or on the determination of a period or a period of absence of permanent post including a tenure post or an acting appoint ment to which he has been appointed." In view of the above definition of the lien, it is only the Government servant whose lien, during the period of his deputation to the foreign service is retained against the substantive or in an officiating post which he a was holding, under the Government, which shall come to an end as soon he is retired from the service by the lending Government for the simple reason that on retirement he ceases to be a Government servant. Therefore, in view of the above legal position, the question of his retaining the lien against any post under the Azad Kashmir Government after his retirement does not arise unless, of course the retirement order is amended and the extension in service is granted by the competent authority. Under Article 185 of the K. S. R., a civil servant on deputa tion to the foreign service is subject to the general and disciplinary rules of the Government and as such the Government had the power to retire the appellant in exercise of the powers vested in it under Article 226 of the K. S. R. with the result that by doing so it has not contravened any of the provisions of the service rules or any of the terms of the deputation guaranteed to the appellant under the Government Notification placing his service on deputation at disposal of the Government of Pakistan. The next ground, advanced by the appellant in support of his claim under discussion that on the basis of the opinion of the then Minister of Education, Government of Pakistan expressed about the services of the appellant as being `distinguished' in a D. O. letter, entitled him to the extension in service under the provisions of the Article 226 of the K. S. R. has equally not impressed me as the same has no legal force behind it. To appreciate the above contention of the appellant, it appears appro priate to reproduce the aforesaid article of the K. S. R. which reads as under :‑ "

226. An officer in superior service, who has attained the age of 55 years, may be required to retire, unless the competent authority considers him to remain it the service. But as the premature retirement of an efficient officer imposes a needless charge on the Government, this Article should be worked with great discretion ; and no officer should be retired who is capable of rendering useful service." The bare reading of the above Article would show that an officer in the superior service of the Government is to retire on attaining the age of 55 years unless the competent authority considers him efficient and decide to retain him in service. The last sentence of the above Article, of course, lays down a guideline for the competent authority to be kept in view, while making the decision as to whether an officer to a superior service should be retired from or retained in service after his attaining the age of 55 years which is to the effect that in order to avoid the unnecessary burden on the Government exchequer, it would be in the interest of the Government not to retire an officer who is capable of rendering useful service. But in spite of the above guideline, the discretion either to retire from or retain in service, such an officer, entirely rests with the competent authority, and to form an opinion about such a civil servant as to his efficiency and capability of rendering further useful service is its ex clusive privilege and any such opinion formed and decision taken either way is conclusive and final upon which this Tribunal cannot sit, on judgment. In case of an officer in the superior service, it is only his competent authority which is in a position to make assessment about his efficiency and capability of rendering useful service after attaining certain specified age because of its having the opportunity of watching his work and performance under it. The contention of the appellant that since Minister of Education, Government of Pakistan in his D.O. letter had called his services as `distinguished', it was incumbent upon the Govern ment to grant extension in his service, in view of the provisions of the aforesaid Article of the K.S.R. is not tenable as the said D.O. letter is not at all relevant for the purpose of determining as to whether or not the Government had exercised his discretion legally and judiciously in the matter of retiring the appellant on his attaining the age of 55 years. In the first place, it was the Government of Azad Kashmir which was com petent authority in the case of the appellant to form an opinion as to whether or not the appellant was capable of rendering further useful service under it after reaching the age of 55 years and not the then Minister of Education Government of Pakistan. Any such assessment made by the said Minister about the past services of the appellant cannot, be considered to be the opinion of the Azad Kashmir Government for their purposes of the Article 226 and thus calling the services of the appellant as 'distinguished' by the said Minister is of no avail to him to contend that the Government could not retire him on account of his being capable of rendering useful service after the attaining of 55 years of age. Secondly, the D.O. Letter under consideration was not written by the said Minister to the Azad Kashmir Government but to his colleague in the then Council of Ministers of Government of Pakistan and that too after four years of the passing of the order of the retirement of the appellant. Thus not only, no such assessment by the Minister about the services of the appellant existed at the time of making the order of his retirement but the same was not communicated to the Government and therefore, one fails to see, how could Azad Kashmir Government know about the opinion of the said Minister which was formed four years after the passing of the said order in a D.O. letter to the Minister of Kashmir Affairs, Government of Pakistan recommending the claim of the appellant for counting of his services under the Government of Pakistan towards his pension. In this view of the matter, it cannot be claimed that the competent authority which was Government in the case of the appellant, made the order of his retirement despite considering him to be capable of render ing useful service after the attainment of 55 years of age. The Govern ment exclusively enjoyed the power either to retire the appellant from or to retain him in service under Article 226 of the K.S.R. and this Tribunal lacks the power to call in question the exercise of the said discretion in favour of retiring the appellant. In this context, it has also been con‑I tended by the appellant that since he was serving under the Government of Pakistan at the relevant time, it was the said Government which was competent to determine as to whether or not the appellant was capable of rendering useful service and thus the Government of Azad Kashmir has acted illegally by making order of his retirement without consulting the Government of Pakistan in the matter. The above contention also has no merit in it. The capability of an officer of rendering useful service referred to in Article 226 of the K. S. R. was to be determined by the Azad Kashmir Government which was competent to retain the appellant in service on attaining, the age of 55 years and not only that but he would have been' capable of rendering such services to the Azad Kashmir Government and not to any other authority or Government. In view of this legal position. the above contention of the appellant does not hold good. The remaining grounds put forth by the appellant in support of the prayer for acceptance of this appeal and enumerated above are mostly irrelevant and merits no serious consideration. The contentions of the appellant that unwritten convention w ith regard to the period of deputa tion being three years or existence of precedent in which the extension in service was granted to some officers of the Government, entitled him to the acceptance of his claim for the extension in service, cannot form the basis of the decision of this appeal. Without commenting on the exis tence or non‑existence of such unwritten convention or precedent, it would suffice to say this Tribunal is only empowered to set aside the order of the Government pertaining to the terms and conditions of the service of a civil servant which is made in contravention of the terms and conditions of such civil servant guaranteed to him under law and service rules, but any such order though violative of any unwritten convention or precedent cannot be impeached and set aside by this Tribunal. There is nothing in the relevant service rules laying down that the period of deputation to the foreign service shall be three years or that a civil servant nearing his retirement shall not be sent on deputation and if sent, he should not be retired but extension in service should be granted. Similarly, as regards the Government Notification which envisage that the services rendered on deputation under the Government of Pakistan by the Civil Servant of Azad Kashmir shall be counted towards his pen sion, has no application in this case because such a service would be counted towards pension, if the same are rendered while being the Government Servant of Azad Kashmir and not otherwise. The appel lant, as stated earlier, ceased to be the Government Servant of Azad Kashmir on coming into force his retirement order made by the com petent authority. The net result of the above discussion is that the Government order retiring the appellant or refusing to amend the same so as to extend his services till the date on which he was relieved from service in Pakistan and to count the period upto that date towards his pensionary benefits, is not violative of any of the terms and conditions of his service guaranteed to him under law. However, it may be pointed out that the Government had the discretion to rescind the order of the retirement of the v appellant and to pass amended order retiring him from the date he was relieved of his duties in Pakistan by making extension in his service from the date of his attaining the age of 55 years till the said date. But this Tribunal is under legal disability to compel the Government to exercise the said discretion in favour of the appellant. For the foregoing reasons, the appeal is dismissed with no order as to costs. A. E. Appeal dismissed.