2018 PLP (C (PLC(CS)N)

SARDAR ABDUL HAMEED KHAN, J.

The captioned appeal by leave of the Court is directed against the judgment passed by the Azad Jammu and Kashmir High Court on 23.05.2017, whereby, Writ Petition No. 06 of 2014 filed on behalf of the respondent, herein, has been accepted with the direction to the official respondents to proceed for payment of pension to the respondent, herein, within a period of 04 months.

2. The facts necessary for disposal of the instant appeal are that the respondent, herein, filed writ petition in the High Court whereby he sought direction to the official respondents to discharge his whole arrears and pensionary benefits. It was further alleged in the writ petition that the respondent, herein, was appointed as Baildar vide order dated 31.10.1984 on contingent basis in the Forest Department. Later on, vide order dated 19.10.1988, he was attached for looking after Closure No. 34, Raj Mahal Block against contingent payment of Rs. 800/- per month. It was further alleged that vide order dated 21.09.2015 on attaining the age of superannuation, he has been discharged from service without payment of pensionary benefits. After necessary proceedings, the learned High Court accepted the writ petition in the manner indicated in paragraph 1 hereinabove. Hence, this appeal by leave of the Court.

4. Mr. Muhammad Hanif Minhas, Advocate, the learned counsel for the appellants, argued that the judgment passed by the High Court is against law and the facts of the case. He argued that the respondent was never appointed against the post of normal budget and all the appointments have been made on contingent basis but the learned High Court has not taken into consideration this important aspect of the case. He argued that the impugned judgment of the High Court is based on misreading and non-reading of record. The learned High Court fell in error of law while holding that the respondent who was serving in the department on contingent paid was not entitled for any pensionary benefits. He submitted that the respondent in presence of different termination orders due to negligence, misconduct etc. is not entitled to any discretionary relief but this important aspect of the case escaped the notice of the learned High Court. He further submitted that the writ petition filed by the respondent before the learned High Court was hopelessly time-barred as the principle of laches is attracted in the writ petition. The learned counsel argued that if the respondent would be a civil servant then he must approach the proper form i.e. Service Tribunal to challenge his termination order well within time, therefore, the impugned judgment passed by the learned High Court is liable to be set aside. The learned High Court has not provided an opportunity of hearing to the appellants and without admitting the writ petition for regular hearing accepted the same, hence, the impugned judgment of the High Court is contrary to law and has been passed without examining the record in its true perspective and prayed for acceptance of the appeal and dismissal of the writ petition filed by the respondent.

5. On the other hand, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the respondent, while controverting the arguments advanced on behalf of the appellants, submitted that the judgment passed by the learned High Court is perfect and legal, therefore, no interference is warranted by this Court. He argued that the learned High Court has rightly accepted the writ petition in the light of the judgment of this Court reported as Secretary Forests and another v. Umer Din [2005 SCR 103]. He argued that the learned High Court while delivering the impugned judgment has not committed any illegality, hence, the appeal filed on behalf of the respondent is liable to be dismissed on this sole ground. He argued that the contingent appointment of the respondent has been brought on normal budget in the light of the Government notification dated 05.05.1981 and 01.09.1986, therefore, the respondent is entitled for pension after retirement after attaining the age of superannuation and prayed for dismissal of the appeal with costs.

6. We have heard the arguments of the learned counsel for the parties and perused the record with utmost care.

7. At the very outset, it is pertinent to mention that the objection/argument of the learned counsel for the appellants regarding the acceptance of the writ petition by the Hon'ble High Court without admission is not correct. A perusal of the record shows that the writ petition was filed on 29.01.2014 and was admitted for regular hearing vide order dated 18.09.2014 and the respondents (appellants, herein) were ordered to file written statements. However, after availing some opportunities, they failed to file the written statements and the defence of the respondents (appellants, herein) was closed vide order dated 23.04.2015. Hence, it is obvious that the respondents (appellants, herein) have not specifically rebutted the claim of the petitioner (respondent, herein).

8. The case of appellants is that the post of Baildar, as the case may be, is not permanent post but part time non-pensionable post paid out of the contingent fund, hence, the respondent is not entitled to pension. Mr. Muhammad Hanif Minhas, appearing on behalf of appellants, stressed that the pension is admissible only to the permanent employees of the Government not to the part time contingent paid or temporary employees, as the respondent was. According to him, temporary nature of employment does not create any pensionary or other rights in favour of Govt. employees.

9. The learned Advocate appearing on behalf of the respondent, on the other hand, relied upon the Govt. Notification dated 05.05.1981 and 01.09.1986, whereby, all the contingent paid employees are brought on the normal budget and those appointed against the contingent paid posts are declared entitled to pension. According to the learned Advocate, as the contingent paid employees are brought on the normal budget, hence the respondent, herein, is entitled to the pensionary benefits as other Government servants.

10. We have perused the impugned judgment of the Hon'ble High Court on the touchstone of the Government Notifications dated 05.05.1981 and 01.09.1986 as relied upon by this Court in the cases reported as Secretary Forests and another v. Umer Din [2005 SCR 103] and Aziz-ur-Rehman v. Azad Government and 5 others [2007 SCR 258]. For proper appreciation, it will be useful to reproduce the same here. In the case reported as Secretary Forests and another v. Umer Din [2005 SCR 103], this Court while dealing the proposition has held that: "

9. His further contention that Beldar in any case is not equal to the Closure Watcher, hence not entitled to any pensionary benefit, is also devoid of force, as both fall in B-1 and are inter-transferable.

10. The perusal of the budget for the years 2002-2003 placed on record as Annexure "DA" in the case of Umer Din reveals a list of the employees of the Forests Department, which includes the Closure Watcher. Perusal of the rules called as Azad Jammu and Kashmir Forests Department Servants Rules, 1984 also reveals at item No. 36 that appointment to the post of the Forest Guard/Khuth Guard is to be made by initial recruitment @ 75% and by promotion from amongst Beldar/Watcher/Depot Guard a 25%. It unequivocally spells that posts of Beldar and Watcher are of equal cadre, opening of which is the Forest Guard. Both are in scale B-1 and inter-transferable. Thus, the arguments that these are contingent paid posts and not entitled to pension and not falling in the definition of the civil servants, is misconstrued. Whereas, in the case reported as Aziz-ur-Rehman v. Azad Government and 5 others [2007 SCR 258], it has been held as under:- "

5. From the perusal of the record it appears that the controversy as to whether the appellant is a civil servant BPS-1 or not has since been settled by the High Court in two writ petitions filed by the appellant and referred to herein above. Not only that even this Court in a case titled Secretary Forests and others v. Umer Din [2005 SCR 103] dealing with the same subject held that in view of the Government orders dated 5.5.1981 and 1.9.1986 all the contingent paid employees have been brought to normal budget and those holding the posts of Beldars and Closure Watchers are declared to be entitled to pension, being employees of BPS-1 and all the functionaries of the State are bound under Constitution to implement the judgment of the superior judiciary in letter and spirit ."

11. Now we advert to the Notifications dated 05.05.1981 and 01.09.1986, through which all the contingent paid employees are brought on the normal budget and those appointed against the contingent paid posts are declared entitled to pension. It will also be useful to reproduce here the Notifications dated 05.05.1981 and 01.09.1986. The notification 05.05.1981 reads as under:-- Whereas, the notification dated 01.09.1986 reads as under:- Muzaffarabad, dated 1.9.1986 "Notification No. FD-R/I-(II)81 (part-II) Dated 1st. September 1986. In supersession of item (i) to rule 1.5 of Notification issued under No. FD/2372/2422/71 dated 15.7.1971 and in partial modification of Government Orders issued from time to time with regard to pension benefits of contingent paid staff and work-charged Establishment brought on normal budget, the President, Azad Jammu and Kashmir has been pleased to declare that the continuous previous service of whole time contingent paid and work-charged Establishment shall be treated permanent and pensionable on full rate under rules.

2. Any rule, regulation, circular, order contrary to this notification shall be treated, to have been amended to this extent.

3. The amount of pension and/or gratuity already drawn by such employees in accordance with pension rules will be adjusted while making payment of pension/gratuity under this order. (Ch. Muhammad Latif) Joint Secretary Finance (Regulations) Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

12. A perusal of the above reproduced notifications as well as the reports from the case law shows that the contingent paid employees are brought on the normal budget and are declared entitled to the pension. The contention of the learned counsel for the appellants that as the posts were temporary and the respondents were paid from the contingent fund and are not entitled to the pension, runs counter to the above referred Government notification which is not helpful to the appellants.

13. It is evident from the record that the respondent has served from 1984 to 2005 with some breaks but the fact of the matter is that after his removal from service, he has been reinstated, hence, it is obvious that the respondent has a long service of more than two decades at his credit, therefore, it is not justified at the end of department after sucking the youth of respondent and kicked him out on the pretext of his non-satisfactory performance, being not in the interest of the department and that the post held by him being temporary and contingent paid being not pensionable. It is in total disregard to the above quoted notifications, as well as the judgments of this Court. It is also proper to add that all functionaries of the State are bound under Constitution to implement the judgment of the superior Courts in letter and spirit.

14. The learned High Court in the operative part of the judgment has held that:- "As it is not denied by the respondents that petitioner was appointed as Baildar and has been discharged from the service on attaining the age of superannuation, therefore, in view of the Govt. Orders dated 05.05.1981 and 01.09.1986, petitioner is entitled to pensionary benefit of grade BPS-1. In view of the above, the writ petition stands accepted and the respondents are directed to proceed for payment of pension to the petitioner within a period of 04 months."

15. The High Court in view of above, does not appear to have committed any illegality in allowing the writ petition and passing the impugned judgment. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to costs. ZC/10/SC(AJ&K) Appeal dismissed