Вы находитесь на странице: 1из 68

2011 P L C (C.S.

) 744

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

KHURSHID ALAM

Versus

SECRETARY DEFENCE, MINISTRY OF DEFENCE, RAWALPINDI and 3 others

Constitutional Petition No.D-2333 of 2006, decided on 12th November, 2010.

(a) Civil Aviation Authority Ordinance (XXX of 1982)---

----S. 4---Civil Aviation Authority Rules, Rr.3.28 & 3.30---Constitution of Pakistan,


Arts.63 & 199---Constitutional petition---Taking of respondent-employee of Parks &
Horticulture Authority, on deputation in Civil Aviation Authority (CAA) in a grade higher
than grade in which he was working in PHA and his subsequent absorption in CAA on
permanent basis in such higher grade---Validity---Persons in an organization created by a
statute would not become Government employees and civil servants---PHA as a separate
corporate entity was created by an Act of Provincial Assembly, thus, its employees were
not employees of Provincial Government---Only persons employed by Defence
Organizations, Federal or Provincial Governments could be taken on deputation in CAA,
but none else---Civil Aviation Authority had never requested' for taking respondent on
deputation in a higher grade nor could he be taken so under Civil Aviation Authority
Rules---Civil Aviation Authority had absorbed respondent in higher grade without
prescribing any qualification therefor---Where there was a post, there was prescribed
qualification and method of induction---Absorption of one person (respondent) by CAA
could not be considered a question of policy---Approval for induction of respondent on
deputation had been granted by Chairman, CAA and not by Federal Government---
Decision for creation of higher post and absorption of respondent thereon had been taken
by Board of CAA and not by Chairman CAA and Federal Government---Director
General, CAA was appointing authority, impugned act of CAA to have taken respondent
on deputation from PHA and absorbed him subsequently in higher grade was without
lawful authority and of no legal effect---High Court directed CAA to repatriate
respondent back to PHA within specified time.

(b) Corporation---

----Legal status of corporation stated.

Once a corporation is created, whether by a statute or in accordance with the provisions


contained in a statute, such as incorporation of a company under the Companies
Ordinance, 1984 or registration of a trade union under the Industrial Relations Ordinance,
1969, such created entity becomes and acquires a distinct and separate personality, its
legal status as a person is distinct and separate from its creators or its shareholders.

Ch. Muhammad Ashraf for Petitioner.

Ashiq Raza, D.A.G. for Respondent No.1.

Ainuddin Khan for Respondents Nos.2 and 3.

Nemo for Respondent No.4.

Date of hearing: 2nd November, 2010.

JUDGMENT

SHAHID ANWAR BAJWA J.--- Respondent No.3 was an employee of Parks and

Page No. 1 of 5
Horticulture Authority Lahore in a grade equivalent to PG-9 grade of respondent No.2.
On 28-9-2001, General Manager of Civil Aviation Authority wrote, a letter to the
Ministry of Defence requesting approval by the Secretary/Chairman, Civil Aviation
Authority Board for taking services of respondent No.1 on deputation basis for a period
of three years. It was also stated that there was no post of PG-9 in Horticulture trade and
therefore, Civil Aviation Authority has approved creation of a post temporarily for a
period of one year. The Chairman Civil Aviation Authority vide letter dated 18-10-2001
after referring to letter dated 28-9-2001 conveyed approval for acquiring services of
respondent No.3 in Civil Aviation Authority in PG-10 on deputation basis for a period of
three years. Consequently, respondent No.3 was taken on deputation. Thereafter on 22-
10-2004 letter was issued to the respondent No.3 whereby he was informed that he has
been absorbed as General Manager in PG-10 with effect from 25-10-2004. This
Constitution Petition has been filed with the following prayers:

(A) appointment of the respondent No.3 as General Manager (Horticulture) in Pay


Group No.10 is illegal, uncalled for, void and non-existent in the eye of law and
may further be pleased to set aside the said absorption and appointment and
declare the post as vacant.

(B) Petitioner was/is qualified to be posted/promoted and/or considered for


posting/promotion as General Manager (Horticulture) in Pay Group-10.

Learned Counsel for the petitioner straightaway stated that he is not pressing prayer
clause (B) and is only concerned with prayer clause (A). Learned Counsel for the
petitioner made the following submissions:

(1) Although request was made to the Chairman Civil Aviation Authority Board
vide letter dated 28-9-2001 for taking the petitioner on deputation in PG-9,
however, when approval was conveyed though it referred to letter dated 28-9-
2009 but it had approved his deputation in PG-10.

(2) Under the Rules of Civil Aviation Authority (Learned Counsel referred to Rule
3.30), a person can be taken on deputation only in the grade in which he is already
working and not in a grade higher than the grade in which he is working at the
time when he was taken on deputation. Respondent No.3 was working equivalent
to PG-9 and therefore, in any case, he could not have been taken in PG-10. In this
regard Learned Counsel referred to Rule 3.30, relevant portion whereof is
reproduced as under:

"3.30 Subject to Regulation 3.29(d), Defence/Federal/Provincial Government


servants may be taken' on deputation to CAA in specialized areas in PG-7 and
above. They are to be appointed in CAA Pay Groups equivalent to their pay
grades only. Such officers may, if found suitable, be absorbed in the Authority in
the same Pay Groups as regular employees in the exigency of service when no
suitable CAA Officer is available to fill the posts. Such absorption shall be subject
to the consent of the officer concerned and his parent Department/Organization.
Seniority of such officers for the purposes of promotion etc. shall count from the
date of absorption in the Authority".

(3) Under the Rules of the Authority in Horticulture Department there are
qualifications which are prescribed for PG-7, PG-8 and PG-9. There is no position
shown in the Rules in Horticulture Department in PG-10 and there are also no
qualifications prescribed for such a post without prescribing the qualifications it
was not available to the respondent No.2 to take a person in that grade. There is
no other post in Civil Aviation Authority without prescribed qualifications except
the post on which respondent No.3 was absorbed.

(4) Qualification for PG-7, PG-8 and PG-9 is at least a graduate in second
division in Agriculture whereas, the respondent No.3 has qualification of M.Sc.
Botany. If the respondent No.3 is not qualified for PG-7, PG-8 or PG-9 how could
he be qualified for PG-10.

Page No. 2 of 5
(5) No post in PG-10 has ever been created and yet the respondent No.3 taken on
that post.

(6) In Rule 3:30 only Defence /Federal/Provincial Government Servants can be


taken on deputation. Respondent No.3 was not an employee of any of the
Governments, he was employee of Parks and Horticulture' Authority, which is a
corporate body created under a statute. Therefore, in any case respondent No.3
could not be taken on deputation even.

Learned Counsel for the respondents Nos.2 and 3 referred to section 4 of the Civil
Aviation Authority Ordinance, 1982 and submitted that the approval by the Secretary
Defence constituted a directive in terms of section 4 of the Ordinance. The said section is
in the following words:

"4. Power of the Federal Government to issue directives.--- The Federal


Government may, as and when it considers necessary, issue directives to the
Authority on matters of policy, and .such directives shall be binding on the
Authority, and if a question arises whether any matter is a matter of policy or not,
the decision of the Federal Government shall be final".

Regarding creation of post in PG-10, learned Counsel referred to Minutes of the Meeting
of Civil Aviation Authority Board held on 24-8-2004 wherein, approval for the creation
of post of General Manager, Horticulture was granted by the Board. Since Punjab
Horticulture Authority has been established by the Punjab Government and since Chief
Minister of Punjab is Chairman of the Punjab Horticulture Authority, notwithstanding its
having been established by a statute employees of Punjab Horticulture Authority are
employees of the Provincial Government. No prayer clause has been made against
deputation of the respondent No.3. Respondent No.3 'has been working for six years and
now it would not be possible to repatriate him to his parent department.

Ch. Muhammad Ashraf Khan while exercising his right of reply submitted that even in
the letter of absorption challenged in this petition it was stated that respondent No.3
would have to tender his resignation from Punjab Horticulture Authority and this
resignation he tendered on 24-9-2006 or thereabout.

We have considered the submissions made by the learned counsel and also have gone
through the record.

When this petition was initially heard, it was deemed appropriate that Parks and
Horticulture Authority, Lahore be also impleaded as a party. Consequently, notice was
ordered to Parks Horticulture Authority. Initially the notice was returned by the District
and Sessions Judge, Lahore with the remarks that the notice was received there after the
date of hearing. Consequently, vide order dated 14-10-2010, it was ordered that notice be
served on respondent No.4 through registered post as well as through Courier. Learned
Counsel for the petitioner placed on record the Courier receipt as well as delivery
confirmation which showed that notice was received on 25-10-2010 at the office of
respondent No.4. No one was present for respondent No.4 and therefore, the matter was
heard ex parte against respondent No.4.

Rule 3.30 has been quoted above. Under the Rule it is only persons employed by Defence
'Organizations, Federal or Provincial Governments which can be taken on deputation in
the Civil Aviation Authority (CAA). Respondent No.3 was an employee of Parks and
Horticulture Authority, which is a statutory Authority created by an Act of Provincial
Assembly and is a separate corporate entity. Once a corporation is created, whether by a
statute or in accordance with the provisions contained in a statute, such as incorporation
of a Company under the Companies Ordinance, 1984 or registration of a trade union
under the Industrial Relation Ordinance, 1969, such created entity becomes and acquires
a distinct and separate personality, its legal status as a person is distinct and separate from
its creators or its shareholders. Therefore, mere fact that Parks and Horticulture Authority
is created by an Act of Provincial Assembly cannot lead to the conclusion that employees
of Parks and Horticulture Authority are employees of the Provincial Government. Had it
been so, there would not have been a separate provision made in Article 63 of the

Page No. 3 of 5
Constitution for persons employed by organization owned or controlled by a government
and even the late lamented section 2-A of the Service Tribunals Act would have been
superfluous and redundant because if persons in organization created by a statute etc. are
employees of the appropriate government then such persons would been ipso facto civil
servants. Therefore, contention of Ch. Muhammad Ashraf Khan that respondent No.3
being an employee of Parks and Horticulture Authority, and therefore not an employee of
Provincial Government could not have been taken on deputation, appears to be correct
and therefore, under the law the respondent No.3 could not have been taken on deputation
by the Civil Aviation Authority. However, after having been taken on deputation
respondent No.3 was absorbed by the Civil Aviation Authority and therefore, question of
validity and legality of deputation has become merely academic by now by force of
subsequent event of absorption.

Ch. Muhammad Ashraf Khan is also correct in relying upon rule 3.30 for his contention
that even if respondent No.3 could have been taken on deputation by the Civil Aviation
Authority he could have only been taken in PG-9 and not in PG-10 because under .Rule
3.30 it is mandated that employee shall be taken on deputation in the pay grade in which
he was serving in his parent organization and not in a higher pay grade. It is quite
intriguing that in letter dated 28-9-2001 the General Manager Personnel of Civil Aviation
Authority requested for his deputation in PG-9 and the Chairman Civil Aviation
Authority/Secretary Defence while approving it, though he referred to letter dated 28-9-
2001 and though there was no request for taking the respondent No.3 in PG- 10,
approved his taking in PG-10, for a period of three years. It is also note worthy that letter
dated 28-9-2001 requested for deputation for a period of one year. Therefore, without any
request by the functionaries of the borrowing department, who it must be presumed were
more familiar with the need of the organization, the Chairman Civil Aviation Authority
approved that respondent No.3 be taken on deputation for three years (instead of one
year) and in PG-10 though the request was for PG-9 and though the Rules mandated that
he should have been taken if at all could be taken in PG-9. It is not for this court to
discern the creaking sound of the wheels turning behind the decisions made by the
Chairman. In any case, as the saying goes ways of Gods are strange. And so are the ways,
at times, of powers that be. Therefore, in any case, the respondent No.3 could not have
been taken on deputation in PG-10. However, as observed above, since the respondent
No.3 we consequently, absorbed, the question of deputation and validity thereof has
become merely academic by now.

Vide letter dated 22-10-2004, respondent No.3 was absorbed in PG-10 in the Civil
Aviation Authority. Ground of attack on such absorption by the petitioner are three-fold.
His first ground was that petitioner held qualification of M.Sc. (Botany). Qualification
prescribed for PG-7, PG-8 and PG-9 in Horticulture Department is B.Sc. Agriculture (We
shall return later to the question of non-prescription of any qualification for PG-10).
Contention of the learned counsel for the petitioner was that since graduation in
Agriculture was qualification for PG-7, PG-8 and PG-9, it must be presumed to be
qualification for PG-10. Reply given by the respondent was that Botany is the mother
discipline and Agriculture is one, of its branches, therefore, one who is M.Sc. (Botany) is
ipso facto qualified in Agriculture also. Although it is difficult for us to subscribe to the
contention of the learned counsel for respondent No.2 in this regard. After all, Physics is
the mother discipline of all Engineering, Chemistry is the mother discipline of all
Pharmaceutical Sciences and Economics is the mother discipline of Business
Management, particularly, marketing. It cannot be argued that a M.Sc. Physics is an
Engineer, and M.Sc. Chemistry is a Pharmacist and M.Sc. Economics is equivalent to
M.B.A. Having said that, it is of course for the departmental authorities to determine
whether M.Sc. (Botany) meets the requirement and can be treated as equivalent to B.Sc.
or M.Sc. in Agriculture. There has not been any material placed or record, for or against
such proposition and therefore, we cannot decide sitting in Constitutional jurisdiction
whether the two qualifications can or cannot be treated as equal. We must also however,
hasten to add that on the record available for us, there is no determination by any
departmental authority that the two degrees can be treated equivalent qualifications for
the position.

Second contention of Ch. Muhammad Ashraf Khan was that position in PG-10 was never
created and therefore, the petitioner could not be absorbed-in a position in PG-10. Reply

Page No. 4 of 5
to this contention was given by the learned Counsel for Civil Aviation Authority by
referring to Minutes of a Meeting of Board of Civil Aviation Authority held on 24-8-
2004. Under Agenda Item No.12(b) there is approval for the post of General Manager
Horticulture PG-10 on permanent basis. Therefore, contention of Ch. Muhammad Ashraf
Khan that post of PG-10 was never created on a permanent basis does not appear to be
correct, particularly because absorption of the respondent No.3 took place vide Letter
dated 22-10-2004.

The third ground of attack of Ch. Muhammad Ashraf Khan was that under Rules of the
Authority for every post, there is a prescribed qualification and in the Horticulture
Department there are posts in PG-7, PG-8 and PG-9 and there are prescribed
qualifications for each of them. The only post created in the organization is the post on
which the respondent No.3 was absorbed and no qualifications have been prescribed here.
Contention of Ch. Muhammad Ashraf Khan is not without force. The respondent-
Authority has not placed on record any material whatsoever to substantiate as to why one
exception has been made from the previous established position of the organization that
where there is a post, there is prescribed qualification as well as method of induction.
Therefore, the action of creation of the post in the set of circumstances and the way in
which it has been created does not appear to be in accordance with the law, and therefore,
absorption of the respondent No.3 is without lawful authority and of no effect,

Mr. Ainuddin Khan, learned Counsel for respondents Nos.2. and 3 referred to section 4 of
the Civil Aviation Authority Ordinance, 1982 which section (quoted above) states that
Federal Government can issue directive to the Authority on a matter of policy and such
directives shall be binding on the Authority. It is also provided that question whether a
particular matter is matter of policy or not shall be exclusively for the Federal
Government to decide. Contention of Mr. Ainuddin Khan does not appear to be sound
and that is so for the reasons. Firstly, it is difficult to subscribe that one particular
individual may be absorbed can be treated as a question of policy. If absorption of one
person is a question of policy it will be difficult to decide as to what cannot be question
of policy. Secondly, approval for induction of respondent No.3 on deputation has granted
not by the Federation Government but by the Chairman Civil Aviation Authority who is
also Secretary Defence but he granted the approval not as Secretary Defence but as
Chairman Civil Aviation Authority. It may be pointed out that under the Rules of the
organization (Rule 3.28) for the position in PG-7 to PG-10, Director-General is the
appointing authority. Thirdly, and more importantly, decision for creation of the post and
absorption thereon was taken not by the Federal Government and not even by the
Chairman Civil Aviation Authority. It was taken by the Board and therefore, cannot in
any way be treated as having been taken as a direction by the Federal Government.

Lastly, Mr. Ainuddin Khan contended that respondent No.3 has been working for six
years and therefore, now it would not be possible to repatriate him to his parent
department. It was for this reason that notice was ordered to be issued to Parks
Horticulture Authority, Lahore.

In exercise of Constitutional jurisdiction this Court would not like to place any person in
an impossible situation, particularly, when the departmental authorities have been more
culpable in violating the law then the hapless employee himself. We therefore, hold that
absorption of the petitioner in PG-10 is without lawful authority and of no legal affect
and direct that he be repatriated back to Parks and Horticulture Authority. Till such time
he is accepted by Parks and Horticulture Authority and other inter departmental problems
are sorted out, respondent No.2 shall continue to remunerate the respondent No.3 in PG-
9. We expect Parks and Horticulture Authority to accept the petitioner in its fold within a
period of three months. Difference of pay and benefits between PG-9 and PG-10 paid to
the respondent No.3 on the year may not be recovered from him.

This constitutional petition is disposed of in the above terms.

S.A.K./K-34/K Order accordingly.

Page No. 5 of 5
2011 P L C (C.S.) 513

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

ABDUL JABBAR MEMON

Versus

FEDERATION OF PAKISTAN through Secretary Ports and Shipping Government


of Pakistan and 6 others

Constitutional Petition No. D-3061 of 2010, decided on 12th November, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil Service---Repatriation of


deputationist to his parent department after borrowing department refused to his
absorption---Absorption of a permanent employee could be made with concurrent
consents of lending department, borrowing department and civil servant concerned---
Such petition by deputationist for his continuation on deputation basis or regular
deputation would not be maintainable---Petitioner was not an aggrieved person by
termination of his deputation, thus, could not maintain such petition---High Court
dis miss ed constitutional petition in circumstances.

Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad and others 2010 SCMR 378 fol.

(b) Port Qasim Authority Act (XLIII of 1973)---

----Ss. 5(2), 50 & 51---Constitution of Pakistan, Art.199---Constitutional petition---


Termination of deputation by Port Qasim Authority---Non-absorption of petitioner by his
parent department after his repatriation thereto on ground of non-existence of vacant
post---Validity---Deputationist could always be repatriated to his parent department,
which was bound to post and adjust him upon his repatriation---High Court disposed of
such petition on above terms.

Petitioner in person.

Ashiq Raza, D.A.-G. for Respondents Nos. 1 and 2.

Sanaullah Noor Ghouri for Respondents Nos.3 to 7.

Date of hearing: 12th November, 2010.

JUDGMENT

SHAHID ANWAR BAJWA, J.--- Petitioner argued this petition in person. Petitioner is
an Officer in BPS-17 in the Ministry of Labour, Manpower and Overseas Pakistanis and
was posted as Assistant Director, National Institute of Labour Administration Training,
Karachi. Respondent No.3 Port Qasim Authority on 29-10-2008, advertised for the
position of Secretary (BPS-18/19) in the Authority. The Petitioner applied in response to
the advertisement. Thereafter letter dated 6-10-2008 was written by Port Qasim Authority
to the Secretary, Ministry of Labour, Manpower and Overseas Pakistanis, requesting
services of petitioner for the post of Secretary/Deputy Secretary (BPS-18/19) on
deputation basis for a period of three years. This request was accepted by the Ministry
and Notification dated 03-10-2008 was issued. Consequently, the petitioner joined as
Deputy Secretary on deputation basis for three years and office order in this regard was
issued by the Port Qasim Authority on 20-10-2008. Vide order dated 13-11-2008
Assistant Director (Admin) of Port Qasim Authority requested permission from
Establishment Division for posting/ appointment of the Petitioner on permanent basis.
Before anything further could be done, letter dated 1-1-2009 was issued by the Ministry

Page No. 1 of 6
of Ports and Shipping, repatriating the Petitioner to its parent department i.e. Ministry of
Labour, Manpower and Overseas Pakistanis. Consequently, repatriation order of the
petitioner was issued on 26-2-2009 by the Port Qasim Authority. When this letter was
received by Ministry of Labour, Secretary Labour wrote to the Secretary Ports and
Shipping taking the position that normally period of deputation from one department to
another Government department is three to five years and therefore, once the Petitioner
was sent on deputation to Port Qasim Authority the post on which he was employed was
filled up and therefore, there was no vacancy where the Petitioner could be adjusted. It
was therefore, requested that Petitioner be allowed to continue on deputation with the
Port Qasim Authority. The petitioner also approached the Ministry for Ports and Shipping
and consequently on 6-3-2009, it was ordered that he may be continued to be allowed on
deputation for two years in Port Qasim Authority. Office Notification in this regard was
issued on 17-3-2009. Consequently the Petitioner was posted as Instructor Training
Centre of Port Qasim Authority. On 28-2-2009, one Muhammad Zameer Farooqi was
appointed as Deputy Secretary in the Port Qasim Authority for two years on contract
basis. The Petitioner being aggrieved by such appointment wrote various letters including
those to the Chairman of the Port Qasim Authority. Finally on 28-9-2010, order for
repatriation of the Petitioner was issued. When this order was issued again the Secretary,
Ministry of Labour wrote to Secretary Ministry of Ports and Shipping and this time the
plea taken was that the Petitioner had been appointed in Port Qasim Authority. The
Petitioner with this petition has enclosed a letter dated 15-10-2010 written by a Joint
Secretary in the Prime Minister Secretariat conveying desire of Port Qasim Authority that
the Petitioner may not be relieved till decision of his permanent absorption is made. This
Constitution Petition has been filed with the following prayers:---

(a) Declare the Office Order dated 28-9-2010, issued by the Respondent No.5
with the approval of the respondent No.3, as arbitrary, illegal, void ab
initio, having been passed in colourable exercise of powers and thus has
no legal effect and liable to be set aside.

(b) Declare the Notification dated 28-2-2009, issued by the Ministry of Ports
and Shipping and subsequent appointment Order dated 5-3-2009 issued by
the Respondent PQA for the appointment of respondent No.7, as Deputy
Secretary (BPS-18) on two years contract basis, as illegal, arbitrary and
has been passed in colourable exercise of powers and in violation of the
dictum set forth by the honourable Supreme Court of Pakistan in Human
Right Case No. 104 of 1992 (Abdul Jabber Memon v. Federation of
Pakistan).

(c) Declare the Office Orders dated 6-7-2009 and 7-7-2009 as illegal,
arbitrary and against the law and principles of natural justice.

(d) Direct the respondents Nos.3, 4 and 5 to decide the case of the Petitioner
for his regular appointment in Port Qasim Authority as Secretary/Deputy
Secretary (BPS-18/19) against the vacant post as already approved and
NOC issued by the Cabinet Secretariat, Establishment Division,
Government of Pakistan vide Establishment Division's U.O. No. 4/1/93-
R(39), dated 13-11-2008.

(e) Direct the Respondents Nos.3, 4 and 5 to decide the case of fixation of pay
and allowances of the Petitioner as increased by the Federal Government
from the month of July, 2010 and -release the same to the Petitioner with
all arrears.

(f) Suspend the Operation of the Order dated 28-9-2010 issued by the
respondent No.5, and direct the Respondents to restore the Official
Vehicle No. GA- 4825, Suzuki Cultus Car, to the Petitioner, which was
forcibly taken away under Order dated 29-9-2010 from the house of the
Petitioner in his absence.

Notice was issued and Counter-affidavit and Comments were filed on behalf of Port
Qasim Authority. The position taken by the Port Qasim Authority is that petitioner was an

Page No. 2 of 6
employer on deputation and he has been repatriated because the Port Qasim Authority
does not require his services any more.

Earlier Constitution Petition No. 1469 of 2009 was filed by the Petitioner. This was
against Notification dated 3-10-2010 whereby his period of deputation was altered from
three years to two years and he submitted that this could not be done. When that petition
came up for hearing on 26-3-2010, it was pointed out to the petitioner that in terms of
Judgment of the Supreme Court in the case of Dr. Shafi-ur-Rehman Afridi v. C.D.A..
Islamabad and others 2010 SCMR 378 an employee on deputation has no right to
continue as such petitioner sought time. Eventually that petition was dismissed for non-
prosecution.

Petitioner who appeared in person submitted that now question regarding his permanent
absorption is under consideration of the Prime Ministry, proprietary demands that the
petitioner be allowed to continue on deputation in the Port Qasim Authority. The
petitioner further submitted that Port Qasim Authority has repatriated him and Ministry of
Labour is not prepared to accept him and petitioner being a family man has to feed his
children and look after his family and if both the Ministry of Labour as well as Port
Qasim Authority refuse to allow him to continue to work, which is the situation now, his
family would be and in fact is facing starvation.

Mr. Sanaullah Noor Ghouri, learned counsel for the respondents 3 to 7 submitted that
petitioner's earlier petition against deputation has already been dismissed for non-
prosecution and therefore, this petition is not competent. He further submitted that Port
Qasim Authority does not desire his services anymore. He stated that the petitioner has
been relieved on 28-9-2010 and has no long on any job at Port Qasim Authority.

We have considered the submissions made by the petitioner as well as Learned Counsel
for Port Qasim Authority.

Dr. Shafi-ur-Rehman's case (supra) is a very detailed judgment on the question of


deputation. Facts of the case were that petitioner who belonged to Office Management
Group, was selected for deputation for a period of three years in Capital Development
Authority for posting as Director Staff. He was relieved by Establishment Division and
joined C.D.A. in February 2008. His deputation period was terminated by the borrowing
agency vide Order dated 26-12-2008. He challenged such termination by filing a writ
petition which was dismissed. Subsequently Civil Petition for Leave to Appeal was filed
in, Supreme Court. Regarding curtailment of period of deputation, the Supreme Court
observed as under:---

"We may mention here that the deputationist by no stretch of imagination and in
absence of any specific provision of law can ask to serve the total period of
deputation and he can be repatriated being a deputationist by the Competent
Authority in the interest of exigency of service as and when so desired and such
order of the competent authority cannot be questioned. The Civil Servants Act,
1973 and rules made there under as well as ESTACODE are silent about the fact
that a deputationist must serve his entire period of deputation and this omission
seems deliberate enabling the Competent Authority to utilize the service of an
employee in the manner as it may deem fit and proper. The period of deputation
can at the best be equated to that of an expression of maximum period which can
be curtailed or extended by the Competent Authority and no legal or vested rights
whatsoever are available to a deputationist to serve his entire period of deputation
in the borrowing Department In this regard we are fortified by the dictum laid
down in the following authorities: ---

Zain Yar Khan v. Chief Engineer 1998 SCMR 2419, Aslam Warraich v. Secretary,
Planning and Development Division 1991 SCMR 2330, Pakistan v. Fazal-ur-
Rehman PLD 1959 SC (Pak) 82, Sheikh Abdul Rahim's case PLC 1964 Leh. 376,
Abdul Khaliq Anjum's case 1998 PLC (C.S.) 839, Government of Pakistan v.
Prof. M. A. Sneed C.P. No. 427-L of 1991. Prof. M. Ashraf Khan Niazi v.
Chairman Board of Governors, Allama Iqbal Medical College 2003 PLC (C.S.).
243."

Page No. 3 of 6
Regarding Maintainability of the petition i.e. whether deputation creates a legal right or
not, it was stated by the Supreme Court in the following words : ---

"On the touchstone of the criterion as discussed hereinabove the case of petitioner
has been examined and we are of the considered opinion that petitioner has no
legal right whatsoever and therefore, the question of its recognition or
enforcement does not arise. We have no hesitation in our mind to hold that
deputation can be defined as an administrative arrangement between borrowing
and lending authorities for utilizing the services of an employee in the public
interest and exigency of services against a particular post and the deputationist
cannot remain on deputation for an indefinite period or stipulated period in
accordance with his own whims and wishes.

The question as to whether any valuable right whatsoever was accrued in favour
of petitioner as deputationist not squarely falls within the jurisdictional domain of
competent authority and may be agitated subject to all legal exceptions."

Lastly on the question of maintainability of the constitutional petition, it was observed as


under:

"We have also examined the controversy from another angle that as to whether
.the Constitutional Petition was maintainable or otherwise? As mentioned
hereinabove it is well-settled by now that a civil servant has no vested right to
complete the deputation period and matter relating to the "terms and conditions of
service, the Constitutional jurisdiction as conferred upon High Court under Article
199 of the Constitution of Islamic Republic of Pakistan cannot be invoked. In this
regard reference can be made to the dictum laid down in the following cases:---

Pakistan v. Moazzam Hussain Khan and another PLD 1959 SC 13, PLD 1964
(W.P.) Lah. 376, Abdul Qayyum v. Nasrullah Khan Draishak and others 1975
SCMR 320, Ala-ud-Din Akhtar v. Government of Punjab and another 1982 CLC
515, Ch. Muhammad Bakhsh v. Government of Punjab PLD 1989 Lah. 1754,
Ayaaz Anjum v. Government of Punjab and others 1997 PLC (C.S.) 123,
1997.SCMR 169, Rafique Ahmad Chaudhry v. Ahmed Nawaz Malik and others
1997 PLC (C.S.) 124, 1997 SCMR 170 and Abdul Khaliq Anjum v. Secretary
Education 1998 PLC (C.S.) 839.

It is worth .mentioning that a deputationist could not be treated as an aggrieved


person provided he had been placed in the same grade and status in borrowing
cadre which he was enjoying before his status of deputationist. It may not be out
of place to mention here that a deputationist has no vested right to remain on a
post as deputationist forever or for a stipulated period as mentioned in the
notification and can be repatriated at any time. In this regard reference can be
made the case titled Muhammad Rafique v. Secretary, Wafaqi Mohtasib's
Secretariat, Islamabad and 2 others 1998 SCMR 2631."

Therefore, respectfully following the judgment of the Supreme Court in Dr. Shafi-ur-
Rehman's case the petitioner is not an aggrieved person by termination of his deputation
and is not entitled to maintain this constitutional petition.

The petitioner referred to letter dated 15-10-2010 whereby a Joint Secretary in Prime
Minister Secretariat communicated to the Secretary Ministry of Ports and Shipping
desiring that petitioner be not relieved till the decision of his permanent absorption is
made. Who is to decide the question of permanent absorption? ESTACODE is very clear
that for the purpose of absorbing a permanent employee three concurrent consents are
required:---

(a) that of a lending department,

(b) that of a borrowing agency, and

Page No. 4 of 6
(c) the civil servant concerned,

Since Port Qasim Authority has clearly stated that it does not require services of
petitioner the borrowing agency refuses to consent to absorption of the petitioner. The
provisions regarding employees of Port Qasim Authority are contained in sections 50 and
51 of the Port Qasim Act, 1973. The two sections are in the following words:

50. Appointment of Officers, Servants, etc. The Authority may, from time to time,
appoint such officers and servants as it may consider necessary for the
performance of its functions, on such terms and conditions as it may deem fit.

51. Recruitment Conditions of Service, etc. The Authority shall lay regulations
made with the prior approval of the Federal Government, lay down the procedure
for the appointment of its officers and servants, and the terms and conditions of
their service including the constitution and management of provident fund for
them, and shall be competent to take disciplinary action against them.

Section 5 subsection (2) of the Port Qasim Act, 1973 provides as under:---

(5) Management (1) ……………………

(2) The Board in discharging its function shall act on sound principles of port
planning and development and port management and shall be guided on questions
of policy by such direction as the Federal Government may, from time to time,
give.

The above provision indicates that the Federal Government has discretion to issue
directions to the Board of the Authority on matters of policy. No doubt power under
section 70 has been provided to the Federal Government but it is in respect of "Acts and
Proceedings of the Board". This power cannot be interpreted to mean the Federal
Government has power of micro manage. Question such as appointment of an employee
or his posting on deputation and repatriation, should be left to the discretion of the
management of the Authority, particularly, when the question involved is of a functional
level employee and not a policy making level employee. After all the management of the
Authority must be given power to manage the affairs of the Port and if the Government
assume to itself the power of micro managing each and every aspect of the organization
then the Board and all paraphernalia settled by the law is reduced to a mere a trapping on
a piece of paper and not even worth the paper on which it is written.

Be that as it may, since a deputationist does not have a right to continue in the department
in which he is deputed and it is also relevant to note that Port Qasim Authority does not
have statutory rules in terms of dicta laid down by the Supreme Court in the case of
Pakistan International Airlines Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676 that
constitutional petition by an employee in absence of statutory rules is not maintainable, it
is difficult to visualize that a constitutional petition for continuation on deputation basis
or regular deputation of a k person would be maintainable.

Ministry of Labour in its letter dated 22-3-2009 took the position that deputation is
normally for three to five years and that it has filled up the vacancy. However, in its letter
dated 11-10-2010 it has stated that petitioner was "selected" and "appointed" vide letter,
dated 16-3-2009. Letter dated 16-3-2009 is an office order issued by Director HRM of the
Port Qasim Authority. It states as under:---

"In pursuance of Ministry of Ports and Shipping, Government of Pakistan


Islamabad's Letter No.1(19)/2008 P&S-II dated 6-3-2009, Mr. Abdul Jabbar
Memon, Deputy Secretary (BS-18) of Port Qasim Authority is appointed and
posted against the vacant post of Instructor (BS-18) in Training Centre, under
Administration Division with immediate effect. The officer is however, attached
with the Chairman Secretariat in addition to his own duties as Coordinator."

Reference is made to letter dated 6-3-2009 (available at page 69 as Annexure-L) which


letter merely conveyed approval for allowing Petitioner continued on deputation for ten

Page No. 5 of 6
years. Therefore, use of word "appointed" in letter, dated 16-3-2009 is merely use of a
wrong word without any real intent behind it. It is more so because on 11-3-2009
Ministry of Labour itself stated that Petitioner was on deputation.

Result of the above discussion is that this constitutional petition as far as prayer clauses
(a), (d), (e) and (f) are concerned, is dismissed. As far as prayer clauses (b) and (c) are
concerned, if the petitioner feels that the persons appointed or the persons posted, were
appointed or posted in violation of law or without any authority of law he has the remedy
of filing a petition in the nature of quo warranto against such appointment or such
posting. Petitioner has been repatriated by the Port Qasim Authority to the Ministry of
Labour and it is the duty of the Ministry of Labour to allow him to rejoin. Contention of
the Ministry of Labour that they have filled up the position is not material as his position
did not become permanently vacant and depute can always be repatriated and therefore, it
is obligation of the Ministry of Labour, Manpower and Overseas Pakistani to post and
adjust the petitioner upon his repatriation.

This constitutional petition, subject to the above observations, is dismissed in limine.


Listed application is also disposed of.

S.A.K./A-122/K. Petition dismissed.

Page No. 6 of 6
2011 P L C ( C . S . ) 2 0 3

[Sindh High Court]

Before Saijad Ali Shah and Shahid Anwar Bajwa, JJ

DEEDAR HUSSAIN JAKHRANI and others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and others

Constitutional Petition No.465 of 2008, decided on 17th September, 2010.

(a) Civil service---

----Initial illegal induction in service challenged after thirteen years---Validity---Mere


passage of time could never and should never be allowed to convert an illegality into
pristine purity of legal existence.

(b) Administration of justice---

----Mere passage of time could never and should never be allowed to convert an illegality
into pristine purity of legal existence---Principles.

(c) Civil Servants Act (LXXI of 1973)---

----Ss. 2(b) & 8---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan,
Arts.199 & 212---Seniority---Constitutional petition---Maintainability---Seniority being
one of terms and conditions of employment would fall within exclusive jurisdiction of
Service Tribunal.

(d) Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Servants Act (LXXI of 1973), S.8---Constitution of Pakistan, Arts.199


& 212---Constitutional petition---Seniority---Deletion of word 'final" used in S.4 of
Service Tribunals Act, 1973---Effect---Constitutional petition challenging proposed
seniority list---Maintainability---Such deletion would not have effect of making each
and every step taken by competent authority as challengeable under S.4 of the Act,
rather what would be challengeable thereunder must be an "order" i.e. an official and
authentic decision though not final but must having shade of finality or s o m e
semblance thereof---Seniority list issued by competent authority being subject to
objections and decision thereon would be a tentative opinion or proposal and could not
be considered to be final list and clothed with mantle of "order" within contemplation
of S.4 of the Act---In a b s e n c e of i s s u a n c e of final seniority list, civil servant could
not approach Service Tribunal, thus, constitutional petition would not be barred by
Art.212 of the Constitution---Principles.

Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis


Foundation, Islamabad and another, 1999 PLC (C.S.) 409 rel.

(e) Words and phrases---

---"Order"-Meaning.

Black's Law Dictionary and Judicial Dictionary by K.J. Alyar 13th Edition ref.

(f) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----Rr. 3, 7 & 9---Civil Servants Act (LXXI of 1973), S.8---Civil Servants (Seniority)
Rules, 1993, R.4---Constitution of Pakistan, Art.199---Constitutional petition---
National Highway and Motorway Police Senior Patrol Officer (BS-16), posts of---

Page No. 1 of 13
Policy of department to take employees on deputation for posting on such posts---
Posting on such posts on deputation Police O ff ic er s serving in P olice Department
and Islamabad Capital Territory and their promotion at same time and subsequent
absorption in the department through its Induction Committee-Validity-According to
Rr.3 & 7 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, every
promotion and appointment must be through Departmental Promotion Committee---
Under R. 9 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973,
appointment by transfer could be made only from amongst persons holding
appointment on regular basis in the post in same basic pay scale or identical grade of
post to be filled in---Such Induction Committee could not be treated as Departmental
Promotion Committee for having mandate different from that Departmental Promotion
Committee; that nothing in record was available to show that competent authority had
conferred powers of Departmental Promotion Committee on Induction Committee; and
that Departmental Promotion Committee would always be in respect of employees of
same department and not in respect of employees of other departments or
deputationists, who would continue to be employees of their parent departments till
their confirmation in borrowing department---Deputationists should have been firstly
absorbed' and then considered for promotion by Departmental Promotion Committee
in deserving cases---Promotion could not be awarded to deputationists prior to an
e ff e c t i v e date of their absorption in the department---Deputationists would come in
the department in accordance with rules and in same pay-scale and grade in which they
were serving in lending department till their absorption in employment of the
borrowing department---High Court set aside promotion of deputationists granted at
e v e of their being taken on deputation and directed the borrowing department to
constitute Departmental Promotion Committee in accordance with rules to consider
cases for promotion of deputationists in accordance with law.

Hameed Akhtar Niazi's case 1995 SCMR 1185; Secretary to Government of The Punjab,
Education Department, Lahore v. Mrs. Kishwar Aslam and others PLD 1997 SC 578;
Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185;
Muhammad Yousuf and 4 others v. Abdul Rashid and others 1996 SCMR 1297; S.H.M.
Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612; Wall Muhammad
Khan Warsi and others v. Government of Sindh and others Constitution Petition No.1077
of 1990; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Dr.
Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299;
Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Peer
Muhammad v. Government of Balochistan, through Chief Secretary and others 2007
SCMR 54; Ghulam Muhammad Mallah v. Province of Sindh through Chief Secretary,
Government of Sindh and 5 others 2009 PLC (C.S.) 120; Muhammad Yousuf and 4
others v. Abdul Rashid and others 1996 SCMR 1297; Fasihuddin Siddiqui and 7 others v.
Government of Pakistan and others 1998 SCMR 637; Khalid v. Dr. Farzana and others
2001 PLC (C.S.) 1239 and Dr. Rehman Ibad Khan v. Employees Old Age Benefits
Institution and 3 others 2002 PLC (C.S.) 2032 ref.

(g) Civil service---

----Deputationist, legal status of---Deputationist would continue to hold new post in


officiating/temporary capacity till his confirmation thereon or reversion to his substantive
post---Deputationist could be returned by borrowing department or called back by
lending department at any time---Borrowing department seeking absorption of
deputationist would be required to initiate proposal, obtain his consent and request for
approval of lending department.

M.M. Aqil Awan for Petitioners.

Munsif Jan for Respondent No.11.

Muhammad Nawaz Shaikh for Respondents Nos. 10, 22, 25, 33, 151, 156 and 166.

Mian Khan Malik, D.A.-G. along with S.P.O. Khalid Iqbal Departmental Representative.

Date of hearing: 11th August, 2010.

Page No. 2 of 13
JUDGMENT

SHAHID ANWAR BAJWA, J.--- Factual contest of this petition is that when the first
Motorway, M-2, between Islamabad and Lahore, was about to be inaugurated, a summary
was put up before the Prime Minister on or about April 15, 1997 for establishment of
Motorway Police and regarding manpower, training and budget, it was inter alia, stated in
that summary that "considering the time constraint it is proposed to initially take police
officers on deputation from the Provinces and Islamabad Capital Territory for a period of
2 to 3 years. Criteria for selection included physical fitness, age limits and unblemished
service record. In deserving cases one stage promotion would be considered."
(underlining added). Subsequently in 2001 jurisdiction of the Motorway Police was
extended to National Highways and force was, re-designated as National Highway and
Motorway Police. Respondent Nos.6 to 268 were working in police departments under
various Provincial Governments and in certain cases in Islamabad Capital territory and by
giving one step promotion were taken on deputation basis in the Motorway, Police as
Senior Patrol Officers in BPS-16. The petitioners were directly taken in employment as
Senior Petrol Officers in BPS-16 after due advertisement and after going through the
selection process in 2001. Although private respondents were taken in the Motorway
Police as deputationists from their parent departments, after selection by an Induction
Committee, they were promoted at the time of being taken as deputationists and
thereafter, after lapse of a few years, they were absorbed in the employment of National
Highway and Motorway Police. Question that has arisen is regarding inter se seniority
between the petitioners who were directly taken in employments as S.P.Os. and the
private respondents who came on deputation, were promoted and subsequently absorbed
in National Highway and Motorway Police. In order to settle the question of seniority a
number of writ petitions were filed in the Lahore High Court and the following order was
passed on 21.3.2007:---

"This order shall dispose of Writ Petitions Nos.1183, 1184, 1185, 1186, 1187 and
1524 of 2005 because identical question of law and facts are involved in all the
cases.

(2) Learned Standing counsel has placed on record summary circulated to all
concerned vide letter No.NH&MP43(11)/06/EA dated 17th July, 2006 by
Inspector-General of Police National Highways and Motorway Police, Islamabad.
On instructions of DSP (Legal) learned Standing counsel states that seniority of
the petitioners shall be considered in accordance with the Esta Code Chapter-II.
Serial No. 204 page No.197 Edition 2003 which provides; fundamental rules
regarding the seniority of officers inducted into civil cadres which shall be based
on the following considerations:---

(i) the date of induction of the officer:

(ii) the grade in which he is initially inducted:

(iii) his seniority in that particular grade in which he is inducted, is fixed with
reference to his date of induction, and

(iv) his seniority in his original service to which he belonged becomes irrelevant
after he has been inducted into a civil cadre with effect from a particular date.

(2) It has been decided that the criteria to determine the seniority while inducting the'
police officers shall be as under:---

(a) Date of joining in NH&MP in a particular rank.

(b) Ranks in Parent Department.

(c) Date of Promotion in Parent Department.

(d) Date of Birth.

Page No. 3 of 13
(3) Officiating officials shall be treated as confirmed after .they complete three years
service in a particular rank from the date of their promotion on officiating basis. The
petitioners shall be promoted according to their policy contained in the above said
summary.

(4) The petitioners state that their grievance has been redressed. This writ petition has
borne fruit. Disposed of as such."

2. After this order was passed, on 27-3-2007 a seniority list of senior Patrol Officers BPS-
16 was circulated by the Inspector-General of Police, National Highway and Motorway
Police. The last para of covering letter of the list reads as under:---

"(2) It is requested that this Seniority List of SPOs may kindly be circulated
amongst all concerned Senior Patrol Officers presently serving under your
administrative control and the objections regarding entries, if any, may kindly be
sent to this office within 15 days i.e. up to 12-4-2007. If no objection is received
in this office within stipulated time, the entries mentioned in the seniority list will
be considered as final/correct." (underlining supplied).

3. Various objections were filed. It is the case of the petitioners that they had filed
objections and no decision was communicated to them. In this regard it is stated in Para-
10 of the petition that the petitioners filed their objections against the Seniority List
circulated vide letter dated 27-3-2007. It was also stated that one of the copies of the
objections (by petitioner No.16) is enclosed. It is stated by the respondents that the
objections were decided and they enclosed a letter dated 7-10-2007 which letter
evidences that the objections raised by petitioner No.1 were rejected. It is stated by the
learned counsel for petitioner that this letter was never communicated to the petitioner.
On 24-6-2010 learned D.A.-G. was directed to file final Seniority List of SPOs. D.A.-G.
filed copy of letter dated March 27, 2007 along with Seniority List circulated with that
letter. Last para from that covering letter has been already reproduced above.

4. Some of the persons similarly placed as the petitioners approached the Federal Service
Tribunal and their appeals were dismissed by the Federal Service Tribunal vide judgment
dated 13-5-2010. A perusal of that judgment reveals that the grievance expressed in that
appeal was against promotion of private respondents therein, who incidentally, and
substantially, are the same as private respondents in this petition. However none of the
present petitioners was appellant before the Federal Service Tribunal. Seniority List dated
27-3-2007 was referred to. Since this list was prepared keeping in view the order passed
by the Single Judge of Lahore High Court on 21-7-2008 it was argued by the appellant
before Federal Service Tribunal that judgment was per incuriam. This aspect was not
accepted by the Service Tribunal and it was held by the Service Tribunal that all are
bound by the order of the High Court and reliance in this regard was placed by the
Service Tribunal on Hameed Akhtar Niazi's case 1995 SCMR 1185 and finally the
Service Tribunal concluded as under:---

"(6) Similar question had arisen in Appeal No.338(R)CS of 2003 and 715(R)CS
of 2008. Appeal No.338(R)CS of 2003 was decided on 18-2-2009 by a Bench
comprising Mr. Zaheer Ahmed and Mr. Ismail Hassan Niazi whereas Appeal
No.715(R)CS of 2008 was decided on 7-1-2010 by a Bench comprising Syed
Bilal Ahmed and one of us Mr. Farrakh Qayyum. In both the judgments of the
Federal Service Tribunal it was held that seniority fixed under the order of the
Lahore High Court in the light of relevant provisions of Esta Code could not be
disturbed. The respondents are thus armed with judgment of the Lahore High
Court and the aforementioned judgments of the FST. In the presence of these
judgments no relief can be given to the applicants. It may be mentioned here that
the judgment of the Tribunal dated 18-2-2009 passed in Appeal No.338(R)CS of
2003 has been upheld by the honourable Supreme Court of Pakistan vide its Order
dated 19-2-2010 passed in Civil Petition No.513 of 2009 and C.M.A. No.2168 of
2009. The relevant paras of the Order are reproduced:---

"(2) Learned counsel for the petitioner submits that while dismissing the appear,

Page No. 4 of 13
the learned Service Tribunal did not consider the effect of Rule 4(b) of the Civil
Servants (Seniority) Rules, 1993, and that the impugned judgment on that score is
not sustainable.

(3) Having heard learned counsel for the petitioner at some length, we are of the
view that-the Rule to which learned counsel has made reference has no relevance.
with the instant case as the said Rule pertains to inter se seniority of those who
joined the organization in one batch. Learned Service Tribunal while dismissing
the appeal, considered the seniority position of the petitioner and he said criteria
has not been found by us to be against the law or rules. That being so the
impugned judgment is unexceptionable. Finding no merit in the petition, it is
dismissed and leave refused."

The honourable Supreme Court has confirmed the findings of the Federal Service
Tribunal that parameters for the promotion of the employees of National Highways and
Motorways Police were correctly fixed by the High Court were in accordance with Esta
Code. Thus there are many judgments of the FST and the honourable Supreme Court-
which go against the applicants.

(7) For the above reasons, we find no merit in the appeals which are hereby
dismissed."

5. Appeal against similar promotions was decided by the Federal Service Tribunal in
another appeal and matter was taken to the Supreme Court and the Supreme Court
dismissed the C.P.L.A.. Entire order of the Supreme Court has been reproduced in the
order of the Federal Service Tribunal quoted above.

6. Learned counsel for the petitioner made the following submissions:

(1) The petitioners were taken on deputation. They were taken a step higher
and were then subsequently absorbed. It is essential that D.P.C. be held
for promotion and promotion could only be given to a person who is
already in employment or has already been absorbed and not to a person
who is on deputation.

(2) Seniority List circulated vide letter dated 27-3-2007 is a tentative


Seniority List. Objections were raised in respect of the seniority list and
no decision on the objections has been communicated. In any case, it is
admitted by the official respondents that objections were received and no
document has been placed on record evidencing that final seniority list
was ever circulated.

(3) Since criteria for promotion in Grade 2 to 18 is seniority-cum fitness, no


promotion could be made without determining the seniority in the first
place and since the private respondents having been promoted without
preparation of final seniority list, their promotion is without lawful
authority and of no legal effect.

(4) Seniority under the law is to be reckoned from the date of regular
appointment. The private respondents were on deputation and their
appointment would become regular with effect from the date of
absorption and it is only thereafter that D.P.C. could be held and they
could be promoted.

(5) Learned counsel referred to Rule 3(3) of the Civil Servants (Appointment,
Promotion & Transfer) Rules, 1973 (hereinafter referred to as the Rule of
1973), and other provisions of Rule 3 to contend that unless a person is
declared as surplus he could not be absorbed in another organization and
therefore unless a person has become surplus there could not be any
question of his being absorbed.

(6) Learned counsel also referred to Rule 9 of the Rules of 1973 to contend

Page No. 5 of 13
that appointment by transfer can only be made in the same grade in which
a person had been before such transfer.

(7) Learned counsel referred to rule 7 of the Rules of 1973 and contended that
without holding DPC no promotion can be awarded to a Civil Servant.
Learned counsel relied, upon Secretary to Government of The Punjab,
Education Department, Tahore v. Mrs. Kishwar Aslam and others PLD
1997 SC 578 and Mehr Sher Muhammad and others v. Federation of
Pakistan 1999 SCMR 185.

(8) Seniority can only be assigned from the date of regular appointment and
the private respondents can become regular employees only after they are
absorbed and it is only thereafter that DPC can be held and they can be
promoted. Learned counsel in this regard referred to Muhammad Yousuf
and 4 others v. Abdul Rashid and Others 1996 SCMR 1297.

(9) Although in exercise of powers under Rule 3 of the Rules of 1973


qualifications were laid down in respect of various posts in the National
Highway and Motorway Police vide notification dated 26-2-2007 but
firstly the notification is prospective in operation and secondly under the
notification as far as Senior Patrol Officers are concerned, only 60% are
to be appointed by promotion while 40% are to be on deputation basis.

(10)Regarding maintainability of the petition in view of the position that


question involves seniority, learned counsel submitted that firstly no final
seniority list has been issued and he could approach the Service Tribunal
only and only after final seniority list has been issued and not before that.
In this regard learned counsel relied upon S.H.M. Rizvi and 5 others v.
Maqsood Ahmed and 6 others PLD 1981 SC 612 and unreported
judgment of this Court in Wali Muhammad Khan Warsi and others v.
Government of Sindh and others Constitution Petition No.1077 of 1990
decided on 7-5-1995. Learned counsel further submitted that in the writ
the has also sought a relief in the nature of quo warranto and in the case of
quo warranto only three things are to be seen: the competence of the
competent authority which appointed the person; qualification of the
person appointed qua qualification laid down by the law and the rules and
third whether the procedure prescribed in law was followed or not.
Learned counsel further submitted that a writ petition in the nature of quo
warranto cannot be issued by the Service Tribunal and the Tribunal cannot
grant relief to that effect.

7. Mr. Muhammad Nawaz Shaikh, learned counsel for the respondents submitted that
moot question involved in the petition is seniority and seniority is one of the terms and
conditions of employment and jurisdiction of this Court is barred by Article 212 as
exclusive jurisdiction vests in the Service Tribunal. Learned counsel relied upon Dr. Mir
Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Dr. Azim-ur-Rehman
Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Khalid Mahmood
Wattoo v. Government of Punjab and others 1998 SCMR 2280; Peer Muhammad v.
Government of Balochistan, through Chief Secretary and others 2007 SCMR 54; Ghulam
Muhammad Mallah v. Province of Sindh through Chief Secretary, Government of Sindh
and 5 others 2009 PLC (C.S.) 120. Mr. Munsif Jan, who appeared for some of the private
respondents, adopted arguments of Mr. Muhammad Nawaz Shaikh.

8. Mr. Mian Khan Malik, learned D.A.-G. submitted that Motorway Police was
established under a summary approved by the Prime Minister of Pakistan. He admitted
that all the persons from Provincial Police Department and Islamabad Capital Territory
who were taken on deputation were taken a step higher than the post in which they were
serving in their parent departments at the time of deputation. He submitted that a proper
Induction Committee scrutinized all the cases and that Induction Committee can be, and
should be treated at the same footing as Departmental Promotion Committee. Learned
counsel further submitted that question regarding seniority cannot be gone into by High
Court. Learned counsel relied upon Muhammad Yousuf and 4 others v. Abdul Rashid and

Page No. 6 of 13
others 1996 SCMR 1297, Fasihuddin Siddiqui and 7 others v. Government of Pakistan
and others 1998 SCMR 637. He also submitted that as far as the petitioners are concerned
they were considered for promotion after they had completed five years of service and
were promoted to BPS-17 as Chief Patrol Officers.

9. Both Mr. Muhammad Nawaz Shaikh and Mr. Munsif Jan, strenuously emphasized that
the private respondents came in employment in 1997 and so much water has passed under
the bridges over the years, that it would create resentment if at this stage questions
touching their initial induction are decided.

10. We have considered the submissions made by the learned counsel and have gone
through the record as well as the case-law cited at the bar.

11. In the petition principally the following two prayers have been made:--

"(A) That the official respondents be directed to prepare and issue final seniority
list of Senior Patrol Officers (BPS-16) in accordance with Rule 3(3), Rule 7 and
Rule 9 of Civil Servants (Appointment, Promotion and Transfer) Rules 1973, read
with section 8 of the Civil Servants Act, 1973 read with Rule 4 of Civil Servant
(Seniority) Rules, 1993 read with departmental Rules pertaining to seniority.

(B) That the private respondents be called upon to show as to under what
authority of law they are holding the posts of Senior Patrol Officer (BPS-16) and
in case of their failure to show the legal authority, their appointments be declared
as illegal, void ab initio with the direction that they be ceased to hold the office
from the date of their failure to show the lawful authority."

12. We will first discuss question of maintainability of the petition. It was strenuously
argued by the respondents and D.A.-G. that essentially the petition involves a question
relating to seniority and therefore it was their contention that jurisdiction of this Court is
barred under Article 212 of the Constitution of the Islamic Republic of Pakistan. There is
no manner of doubt that seniority is always one of the terms and conditions of
employment. It is not disputed by any of the parties that both the petitioners and the
answering respondents are in the service of Pakistan as well as are Civil Servant as
defined in section 2(b) of the Civil Servants Act, 1973. The law is so well-settled on the
point that seniority is one of the terms and conditions of service and therefore is within
exclusive jurisdiction of Service Tribunal that it does not need any authority. One may
refer to Khalid v. Dr. Farzana and others 2001 PLC (C.S.) 1239 and Dr. Rehman Ibad
Khan v. Employees Old Age Benefits Institution and 3 others 2002 PLC (C.S.) 2032.
Learned counsel for the answering respondents relied on Dr. Mir Alam Jan's case (supra).
The question involved in the reported case was regarding an appointment in Lady
Reading Hospital and question at issue was of seniority between petitioner in the High
Court on the one hand and respondent on the other hand and the Supreme Court observed
that "in exercise of constitutional jurisdiction, the High Court was not expected to
perform functions of selection Authority in service matters so as to substitute its opinion
for that of a competent authority." In Khalid Mahmood Wattoo's case (supra) a Joint
Director Labour of Punjab applied to the Federal Government for being posted on
deputation as Community Welfare Attache. He was recommended both by the Ministry as
well as Selection Board. Prime Minister ordered that two posts from Punjab be allocated
to the Province of Balochistan and Sindh and it was this particular decision that was
challenged the writ petition. The Supreme Court held that in question of terms and
conditions of employment writ petition would not be maintainable. In Peer Muhammad's
case (supra) it was contended that posting of respondent against post of Director-General,
Agricultural Extension Balochistan has been made in violation of the Agricultural Service
Rules. Supreme Court held that in such a situation, the High Court did not have
jurisdiction as its jurisdiction was barred by Article 212 of the Constitution of the Islamic
Republic of Pakistan. In Ghulam Muhammad Mallah's case (supra) the matter related to
transfer and posting of 200 School Teachers and it was held by a Division Bench of this
Court that this related to terms and conditions of employment of a Civil Servant and the
petition was held not maintainable. The petitioner in that case was working as
Superintendent in BS-16. Seniority list was issued where he was shown junior to private
respondents. After exhausting departmental remedy the appeal was filed before Service

Page No. 7 of 13
Tribunal which was dismissed. Tribunal dismissed the appeal because it came to the
conclusion that seniority list was issue in consequence of a view taken by the Supreme
Court. The Supreme Court dismissed C.P.L.A.

13. On the other hand, learned counsel for the petitioners relied on S.H.M. Rizvi's case
(supra). In this case firstly section 4(1) of the Service Tribunal Act was reproduced.
Thereafter the Supreme Court observed as under:---

"Right of appeal has been conferred by subsection (1) of section 4 only against a
"final order whether original or appellate." A final order has the distinction of
determining the rights of the parties. Where any further step is necessary to
perfect an order, in this case the disposal of the objections received or finalization
of the provisional seniority list, the order cannot be taken to be final. An order
may be final, if it determines the rights of the parties, concludes the controversy
so far as a particular authority or forum is concerned notwithstanding that such an
order may be open to challenge in appeal etc. This aspect of the concept of the
finality of an order has been taken care of by adding the words "whether original
or appellate" in the enacted law itself."

14. Mr. Nawaz Shaikh was quick in pointing out that the word final used in section 4 of
the Service Tribunals Act was deleted by the Amending Act of 1997 with the result that
now the position is that order whether original or appellate can be challenged in appeal
before the Service Tribunal and it need not be final order. This he stated in response to the
contention of Mr. M.M. Aqil Awan that seniority list circulated alongwith the letter dated
27-3-2007 is not the final list but is only a proposed list arid therefore in terms of S.H.M.
Rizvi's case (supra) it could not have been challenged in appeal before the Service
Tribunal. So it was contended by Mr. Awan.

15. The effect of deletion of word final came up for consideration before the honourable
Supreme Court in case of Muhammad Yar Buttar and 4 others v. Board of Governors,
Overseas Pakistanis Foundation, Islamabad and another 1999 PLC (C.S.) 409 effect of
deletion of the word 'final' from clause (1) of section 4 of the Service Tribunals Act was
examined by the honourable Supreme Court and it was observed as under:

"(5) Placing reliance on the omission of the word 'final' from section 4, it has been
vehemently contended before us that the object of introducing amendment was to
make even an interim order appealable before the Service Tribunal and, therefore,
the show-cause notices issued to the appellants amounted to order because the
same had been issued after conscious application of mind by the competent
Authority having decided to proceed against the appellants under the Service
Regulations and as such the order was within the contemplation of section 4 after
its amendment and, therefore, the appeals filed by the appellants were
maintainable. It may be stated here that before 10-6-1997, the Civil Servants Act
and the Service Tribunals Act governed the civil servants as defined n the Civil
Servants Act and only they could have recourse to the remedy to knock the door
of the Tribunal for the enforcement of terms and conditions of their service. A
large number of statutory bodies and corporations are controlled and managed by
the Government of Pakistan and their employees fell outside the pale of the Civil
Servants Act and the Service Tribunals Act. With a view to provide a remedy to
such employees the amendment was introduced so as to provide a remedy to such
employees to seek the redress of their grievance for enforcement of terms and
conditions of their service. Alongwith such amendment, section 4, as already
stated, was also amended and the word 'final' was omitted meaning thereby that
any civil servant aggrieved by any order, whether original or appellate, made by a
departmental authority in respect of any of the terms and conditions of his service,
could file an appeal. The crucial question arising for determination is whether
after the omission of the word 'final' from section 4 of the Service Tribunals Act,
all orders whatever their nature may be, are appealable or not. In this behalf, it
may be stated here that the "order" within the meaning of the Service Tribunals
Act has to be interpreted and has to be confined within the four-corners of the
Civil Servants Act and the Service Tribunals Act and an appeal against an order is
relatable to the terms and conditions of a civil servant. In this context, it is to be

Page No. 8 of 13
seen that if a civil servant like the appellants is being proceeded for disciplinary
action, then what type of orders can be issued or passed by a competent Authority.
The answer to these questions has been elaborately dealt with by the Tribunal. In
such proceedings, as rightly observed by the Tribunal, the following orders are to
be passed within the contemplation of the rules governing disciplinary action:---

(1) Appointment of Inquiry Officer or Committee.

(2) Show-cause notice.

(3) Framing of charge-sheet,

(4) Preparation of statement of allegations.

(5) Second show-cause notice.

(6) Appointment of authorized officer.

(7) Decision of the authorized officer whether inquiry should be conducted by the
Inquiry Officer or a Committee.

(8) Decision of the authorized officer not to hold an inquiry by an Inquiry Officer or a
Committee.

(9) Information to the officer about the action proposed to be taken.

(10) Adjournment during any proceedings.

(11) View of the Inquiry Officer or Committee that the officer was hampering
the progress of inquiry.

(12) Various other steps to complete an inquiry.

In our view, the Tribunal rightly observed that if in the light of the amendment in
section 4 of the Service Tribunals Act, appeals were maintainable against all the
above-noted orders, then it would be an endless inquiry and no inquiry could reach its
logical conclusion. In this behalf, it may be stated here that while interpreting a
provision of statute or rules, such interpretation is not to be placed, which would
render the object of the statute or rules as futile or which in other words would
frustrate the very object of the statute or the rules.

However, we may further add that it will depend upon the nature of each order as to
whether appeal against such order is maintainable or not because the abovementioned
situations deal with procedural matters. The questions of mala fides and coram non
judice, would stand on a different footing.

(6) We may further add here that right of appeal is a statutory right and is conferred
upon the person aggrieved and the statutes conferring such right also define its scope.
No extraneous consideration or matter can be imported in the relevant statute so as to
abridge or enlarge scope of appeal. The omission of the word "final" from section 4 of
the Service Tribunals Act does not enlarge the scope of the appeal as envisaged by
section 4 of the Act." (emphasis supplied)

16. Therefore it appears that effect of deletion of word 'final' from section 4 of the
Service Tribunals Act, does not have effect of making each and every step taken by the
competent authority as challengeable under section 4 of the Service Tribunals Act. If that
was so an order appointing an Inquiry Officer would be challengeable; an order of
adjournment by Inquiry Officer would be challengeable; an order of change of Inquiry
Officer would be challengeable; entertainment of objections to provisional seniority list
would be challengeable; decision on each objection would be separately challengeable
and there would be no end to it. Even order to issue provisional seniority list (before the
actual list is issued) would be challengeable. No interpretation can be placed on

Page No. 9 of 13
legislation for creating such absurdities. What is challengeable must be an 'order' in some
sense of the word. Black's Law Dictionary defines the word 'order' in the following
words:---

"Order. A mandate; precept; command or direction authoritatively given; rule or


regulation. Brady v. Interstate Commerce Commission, D.C.W. Va., 43 F.2d 847,
850. direction of a Court or Judge made or entered in writing, and not included in
a judgment, which determines some point or directs some step in the
proceedings."

17. In Judicial Dictionary by K.J. AIYAR 13th Edition the following is said about word
order:---

"`Order' as a noun, has been held equivalent to or synonymous with `decision'


[see 26 CJS, 767, Note 72; `regulation', `rule', `resolution', `shipment' and
`warrant', as has been compared with, distinguished from, `regulation' and
`warrant]

18. Therefore, in order to constitute and "order" for the purpose of section 4 of the
Service Tribunal Act, an order is an official and authentic decision which may not be
absolutely final but which must have shade of finality, or some semblance of it. When the
competent authority itself is saying that what it is put forth is not final because it is
subject to objections and decision thereon. Putting forth of such a document by-the
competent authority cannot be said to be an order which could be challenged in
proceedings under section 4 of the Service Tribunal Act. At most it would be a tentative
opinion, a proposal or even a trial balloon, because the matter is still being considered at
least there is clear indication that the competent authority has till then not reached a
definite decision.

19. As quoted above, the letter dated 27-3-2007 itself invites objections regarding entries
and then it says if no objection is received within stipulated time the entries made in the
seniority list would be considered as final. It is every-one's case that objections were
filed. It is contended by the petitioners that each one of them filed objections and such a
contention is specifically made by them in para 10 of the petition. With the comments
filed by the department reply given to one of the petitioners has been annexed. There is
no statement that only one person filed the objections. Therefore, the record indicates that
many objections were received. Assuming for the sake of arguments that all these
objections were decided and all the petitioners were communicated the decision, the
question would still be as to how would a particular petitioner come to know that all the
objections have been decided and the seniority list is now final. It could not also be lost
sight of that it is stated in the letter dated 27-3-2007 that "if no objection is received" then
the seniority list will be treated final. Certainly objections were received. Therefore in
any case seniority list dated 27-3-2007 cannot be considered to be the final list and
therefore it cannot be clothed with the mantle of "order" within contemplation of section
4 of the Service Tribunals Act, 1973. It is conceded by the respondents that after issuance
of letter dated 27-3-2007 no letter declaring that seniority list dated 27-3-2007 is now
final has been issued. Therefore in our opinion, no final seniority list has been issued so
far by the departmental authorities. List circulated with letter dated 27-3-2007 is merely a
proposal or loud thinking and not an order. When there is no final seniority list issued
obviously the petitioners cannot approach the Service Tribunal. Therefore, in the
circumstances, jurisdiction of this Court is not barred by Article 212 of the Constitution.
This constitutional petition is therefore held to be maintainable.

20. Judgment of Service Tribunal (dated 13-5-2010) does not reveal that question that no
final seniority list has been issued, was decided by the Tribunal. The Tribunal merely
proceeded on the basis that following the order passed by an honourable Single Bench of
Lahore High Court on 21-3-2007 Seniority List has been issued. A perusal of order of
High Court indicates that on 21-3-2007 the High Court ordered that seniority list be
prepared and issued. Thereafter the proposed seniority list was issued on 27-3-2010.
Because it invited objections and stated that if no objection is received only then seniority
list would be final, Seniority list has never been finalized and no final seniority list has
been issued so far. We therefore direct the respondent No.3 to issue final Seniority List

Page No. 10 of 13
within a period of four weeks of the date of this judgment.

21. Before we come to the second prayer it may be advantageous to recapitulate the
essential facts: (1) private respondents were serving in various provincial police
establishments and in some cases in Islamabad Capital territory; (2) summary was
approved by the Prime Minister on 15-4-1997 for posting on deputation police officer
from Provinces and Islamabad Capital territory for a period of 2 to 3 years; (3) it was
stated in the summary that in deserving cases one step promotion would be considered;
(4) the petitioners were taken on deputation and promoted at the same time; (5) an
Induction Committee scrutinized all candidates; (6) after sometime the petitioners were
absorbed in the employments of National Highway and Motorway Police with
retrospective effect i.e. with effect from the date of induction on deputation basis.

22. Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules 1973
provides as under:---

"3. ( 1 ) Appointment to posts shall be made by any of the following methods,


namely:--

(a) by promotion in accordance with Part-II of these Rules;

(b) by transfer in accordance with Part-II of these Rules; and

(c) by initial appointment in accordance with Part-III of these Rules.

(2) The method of appointment and the qualifications and other conditions applicable
to a post shall be as laid down by the Ministry or Division concerned in consultation
with the Establishment Division.

(3) Notwithstanding anything contained in sub-rule

(1) or the method of appointment laid down in the recruitment rules, a person who is
rendered surplus as a result of the reorganization or abolition of a Division,
Department, Office or permanent post in pursuance of any Government decision or as
a measure of economy may be appointed to a post in the basic pay scale to which he
belonged, if he possesses the qualifications, and fulfills other conditions, applicable to
that post.

23. As far as promotions and transfers are concerned Rule 7 of the same rules provides as
under:---

"(7) Promotions and transfer to posts in basic pay scales 2 to 18 and equivalent
shall be made on the recommendation of the appropriate Departmental Promotion
Committee and promotions and transfer to posts in basic pay scales 19 to 21 and
equivalent shall be made on the recommendation of the Selection Boards.

7-A.(1) The Competent Authority may approve the promotion of an officer or


official from the date on which the recommendation of the Central Selection
Board, or, as the case may be, the Departmental Promotion Committee was made.

24. Reading of these rules indicates that it is essential for every promotion and every
appointment by promotion that there be a Departmental Promotion Committee.
Contention of the learned counsel for the private respondents that Induction Committee
be treated in place of Selection Committee cannot be accepted for three reasons; firstly,
the mandate of Induction Committee is different from that of Departmental Promotion
Committee; secondly, no material whatsoever has been placed on record that the
competent authority at that time conferred the powers of D.P.C. on Induction Committee
and thirdly the Departmental Committee is always in respect of the employees in that
department and not in respect of employees in other departments. It cannot be lost sight
of that present private respondents came on deputation to Motorway and National
Highway Police. Therefore, they were essentially and continued to be employees of
respective provincial police departments or the police in Islamabad Capital territory.

Page No. 11 of 13
Having come on deputation, thereafter decision to absorb them could have been and it is
only thereafter that, in accordance to the mandate given by the Prime Minister, that
deserving cases could be considered for promotion. Therefore sequence should have been
deputation followed by absorption followed by D.P.C. followed by promotion in
deserving cases. What department did was promotion and deputation occurring at the
same time and absorption much later. It may not be out of place to observe that every one
was promoted. Therefore, the question as to which one was deserving and which one was
not deserving was never considered by the National Highway Authorities.

25. Here we may also refer to Rule 9 of the Rules of 1973 which provides as under:

"(9) Appointments by transfer shall be made from amongst the persons holding
appointment on a regular basis in the posts in the same basic pay scale or
equivalent to or identical with the post to be filled."

26. Word deputation has not been defined. However in Islamic Republic of Pakistan v.
Israr-ul-Haq and 23 others PLD 1981 SC 531, the Supreme Court quoted from
Establishment Manual as under:---

"Hitherto, the term `deputation' has not been formally defined. However,
according to the practice in vogue a Government Servant begins to be regarded as
a `deputationist' when he is appointed or transferred, through the process of
selection, to a post in a department or service altogether different from the one to
which he permanently belongs. He continues to be placed in this category so long
as he holds the new post in an officiating or a temporary capacity but ceases to be
regarded as such either on confirmation in the new post or on reversion to his
substantive post."

27. A reading of the above indicates that a deputationist continues to hold the new post in
an officiating and temporary capacity till either he is confirmed in new post or is reverted
to his substantive post. In Office Memorandum dated 15-10-1979 issued by the
Establishment Division regarding absorption of a deputationist in the borrowing
organization, it is laid down, inter alia, as under:---

"(4) In case a deputationist is proposed to be absorbed permanently in the


borrowing Office (either a Government Organization or a corporation etc.), such a
proposal shall be initiated by the borrowing office at least six months before the
expiry of the deputation period of the deputationist concerned. Such a proposal,
with the written consent or request of the deputationist, shall be made by the
borrowing office to the lending office for Parent office of the deputationist which
shall convey its decision (if necessary, in consultation with the Establishment
Division) to the borrowing office as well as the deputationist, by the expiry of the
term of his deputation. In the event of non-acceptance of the proposal, the
individual shall revert back to his parent office as indicated at (2) and (3) above."

28. Therefore cumulative effect of these provisions appears to be (1) a deputationist as


long on deputation continues in the new post in officiating or a temporary capacity; (2)
His status shall continue till the deputationist is confirmed in the new post or is reverted-
to his substantive post. (3) If a deputationist is sought to be absorbed by the borrowing
office, the borrowing office is required to initiate the proposal and then obtain the
consent of the deputationist and request approval by the lending organization; (4)
Under Rule 9 an appointment by transfer II can be made only from amongst the
persons holding appointment on regular basis in the post in the same basic pay scale
or identical grade of the post to be filled in; (4) Under 7 no promotion in Grade-2 to
18 can take place unless there is evaluation in accordance with the rules by a
Departmental Promotion Committee.

29. In the present case, Induction Committee's objective was to select the persons
for induction in the organization on deputation basis. Therefore logically next step
should have been taken to absorb private respondents in the service of Motorway
and National Highway Police and thereafter to hold Departmental Promotion
Committee and in accordance with the mandate given by the Prime Minister in

Page No. 12 of 13
deserving cases award one step promotion. Obviously such promotion could not be
awarded prior to an effective date of absorption.

30. The scheme of National Highway and Motorway Police appears to be to


continue with the process of taking employees from police department on
deputation. That is why in the rules notified in the Gazette of Pakistan on 26-2-
2007, it is provided for posts in BS- 16 and 17 that 60% of the posts shall be by
promotion, nil by initial appointment and 40% on deputation basis and for post BS-
18, 33% would be by promotion and 67% would be on deputation basis. Thus taking
of employees from police departments on deputation appears to be part of the long
term personnel policy of National Highway and Motorway Police and obviously
such deputees would come to National Highway and Motorway Police in accordance
with the rules and in the same grade in which they were working in the police
department. That is more so also because a deputee can be returned by the
borrowing department or called back by the lending department at any time. Will he
be demoted when repatriated? It will be of course available to the National Highway
and Motorway Police, to subsequently decide to absorb the deputationist and then
consider his case for promotion.

31. Argument of Mr. Nawaz Shaikh that, notwithstanding the present floods, so
much water has passed down the river Indus since 1997, it would create unrest if the
petition is allowed. Argument is misconceived. A mere passage of time can never,
and should never be allowed to, convert an illegality into pristine purity of legal
existence.

32. Consequently we hold that the petition is maintainable. We direct that final
seniority list be issued. We also hold that the private s respondents continued to be
on deputation in the same scale and grade in which they were serving in the lending
police department of the concerned Province (or Islamabad Capital Territory) at the
eve of deputation till they were absorbed in the employment of National Highway
and Motorway Police. Promotions if any granted to the private respondents at the
eve of their being taken on deputation are set aside. However it will be available to
the National Highway and S Motorway Police to constitute D.P.C. in accordance
with the rules to consider the cases for promotion of private respondent in
accordance with the law.

33. Constitution Petition is disposed of in the above terms. Listed applications are
also disposed of.

S.A.K./D-11/K Order accordingly.

Page No. 13 of 13
2010 S C M R 618

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Raja Fayyaz Ahmed and Mahmood
Akhtar Shahid Siddiqui, JJ

HAMIDA BEGUM----Petitioner

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF EDUCATION through Secretary


and others----Respondents

Civil Petition No.1587 of 2008, decided on 4th August, 2009.

(On appeal from the judgment, dated 11-11-2008 of the Islamabad High Court, Islamabad
passed in I.C.A. No.93 of 2004).

Civil Servants Act (LXXI of 1973)---

----S. 10---Constitution of Pakistan (1973), Arts.185(3)---Deputation---Repatriation to


parent department---Civil servant was employee of Provincial Government and was on
deputation in Education Department, Government of Pakistan---Authorities issued order
for repatriation of civil servant to her parent department but she wanted to be absorbed
permanently---Validity---Civil servant held lien in her parent department of the Province
and could not be absorbed permanently for want of concurrence of Provincial
Government, but such 'concurrence was not conveyed to Federal Government---Civil
servant was repatriated to her parent department but no response was shown by her parent
department nor concurrence of Provincial Government for permanent absorption of civil
servant was conveyed in absence whereof, service of civil servant could not be absorbed
in the concerned department of Federal Government even if she held requisite
qualification and eligibility for such absorption---Civil servant also did not approach to
Provincial Government for the purpose of grant of "No Objection Certificate" and
consequently in terms of an earlier order passed by Supreme Court, the office order
issued by Federal Government for repatriation of civil servant held the field---Judgment
passed by High Court was not open to any exception and Supreme Court declined to
interfere in the same---Leave to appeal was refused.

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Shah Khawar, D.A.-G., Arshad Anjum, A.D. (FDE), Hadayatullah, S.O. (Education),
Peshawar for Respondents.

Date of hearing: 4th August, 2009.

JUDGMENT

RAJA FAYYAZ AHMED, J.--- In the earlier round of litigation culminating in the filing
of Civil Petitions Nos.918, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929, 984, 996,
961, 1142, 1143 and 1230 of 1998 by the petitioner and others against the orders, dated
25-5-1998, 26-5-1998 and 16-7-1998, whereby I.C.As. Nos.40 to 48 of 1998, 50, 52, 55,
53, 59, 61 and 94 of 1998 dismissed by the learned High Court, Rawalpindi Bench,
Rawalpindi were disposed of by this Court vide order, dated 4-12-1998 in the terms
specified therein reproduced hereunder in extenso:---

"Ajmal Mian, C.J.--- Petitioners in above petitions are School Teachers who were
on deputation in the Federal Ministry of Education, Islamabad, from the
Provinces of Punjab, Sindh and N.-W.F.P. Their husbands are working in various
Government Departments at Islamabad/Rawalpindi. The deputation period of the
petitioners have expired. They do not wish to go back to their respective
Provinces on the ground that their husbands are still posted at

Page No. 1 of 4
Islamabad/Rawalpindi. Mr. Abdul Karim Khan Kundi, Advocate Supreme Court
appearing for the petitioners has produced a copy of Office Memorandum
No.10/184-R-5, dated 26th November, 1998 issued by the Government of
Pakistan, Cabinet Secretariat, Establishment Division, Islamabad, addressed to the
Ministry of Education, Islamabad, which reads as follows:---

Office Memorandum

Subject: Absorption of Female Teachers on Deputation to Federal Government


Schools, Islamabad from Provincial Education Departments

The undersigned is directed to refer the Ministry of Education's O.M. No.D-1281/98-CEI,


dated 12th October, 1998, on the above subject and to request that the following
information/ documents may be supplied to this Division:---

(i) A copy of formal concurrence of the Provincial Governments to the permanent


absorption of its employees in the Federal Government.

(ii) A certificate/confirmation to the effect that husbands of the lady teachers


proposed to be absorbed are working under the Federal Government at Islamabad.

(2) The proposal in regard to absorption of TUGT's and MTT's who do not carry the pay
scales at par with those of the Federal Government for similar posts, cannot be accepted
because under Rule 9 of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973, appointment by transfer is permissible only from persons servings in the
same Basic Pay Scale. Ministry of Education is requested to furnish its comments, if any,
on this point.

(Sd.) (Muhammad Arshad)


Section Officer

(3) When the above petitions came up for hearing before this Court on 26-11-1998, Mr.
Abdul Karim Khan Kundi, Advocate Supreme Court, has pointed out that Provincial
Governments are not accepting the petitioners as their employees. We had issued notices
to the learned Deputy Attorney-General, Advocate-Generals of the Provinces. In response
to the above notice Maulvi Anwarul Haq, Dy. A.-G., Mr. M. Sardar Khan, A.-G. N. -W. F.
P., and Mr. Muhammad Zaman, Advocate Supreme Court representing A.-G. Punjab, are
present. They state that the petitioners have still lien over their respective posts in the
Provinces.

(4) In our view, it will be appropriate if no further action is taken against the petitioners
for a period of three months. In the meantime, if some action is taken pursuant upon
above OM the same may be implemented, otherwise they will be repatriated to their
respective Provinces. Petitions are disposed in the above terms."

2. Vide Office Order, dated 3-10-2003 the petitioner was repatriated to her parent
Department and relieved from duty with immediate effect by the Federal Directorate of
Education, Government of Pakistan. The contents of the Office Order reads as under:---

"Consequent upon the decision of Supreme Court on Civil Petition No.984 etc.
dated 4-12-1998 and amended in Recruitment Rules for absorption/appointment
through transfer Mrs. Hamida Begum, PTI, (Junior) (Deputationist) Federal
Government Girls Primary School, Humak (FA), Islamabad is hereby repatriated
to her parent department and relieved from duty with immediate effect.

(2) As she has been on deputation since 2-6-1994 i.e. more than 9 years and she
could not be retained/absorbed for further period as she is not qualified according
to the Recruitment Rules i.e. FA/FSc IInd Division with junior diploma in
Physical Education.

(3) This is issued with the approval of the Competent Authority."

Page No. 2 of 4
3. Petitioner Hameeda Begum was working as Physical Education Teacher (PET) in the
Government Girls High School, Nakot, District Mansehra and was taken on deputation
from N.-W.F.P. as PTI for a period of 3 years. She joined Federal Directorate of
Education on 2-6-1994. On completion of her tenure she was repatriated to her parent
department on 22-5-1997. Thereupon, she challenged her repatriation order in writ
petition before the learned Lahore High Court, Rawalpindi Bench, Rawalpindi. She was
allowed to continue her duty in the light of the stay order issued by the said learned
Court. Eventually, her Writ Petition No.3093 of 2003 was dismissed vide judgment, dated
14-5-1997 whereafter, her repatriation order with effect from 20-7-1998 were again
issued which was unsuccessfully, assailed in I.C.A., before the learned Division Bench of
the Lahore High Court. After the dismissal of her I.C.A. as above-noted, the petitioner
along with others filed civil petitions before this Court which were disposed of vide
order, dated 4-12-1998. Subsequently, vide Office Order dated 3-10-2003 the Federal
Directorate of Education, Government of Pakistan repatriated the petitioner to her parent
department on the ground that she remained on deputation for a period, of 9 years could
not be retained/absorbed for further period as she is not qualified according to the
recruitment rules i.e. FA/FSc 2nd Division with Junior Diploma in Physical Education.
This order was challenged in Writ Petition No.3093 of 2003 by the petitioner before the
Lahore High Court, Rawalpindi Bench Rawalpindi dismissed by the learned Single Judge
in the Chambers on 5-4-2004. The petitioner feeling dissatisfied with the dismissal of her
writ petition filed I.C.A. No.93 of 2004, which met the same fate vide impugned
judgment dated 11-11-2008 passed by the learned Division Bench of the Islamabad High
Court, Islamabad. The operating part of the impugned judgment is reproduced
hereinbelow:---

"(9) Appellant-petitioner's Constitution Petition No.3093 of 2003 was dismissed


by the learned Judge in Chamber of Lahore High Court, Rawalpindi Bench,
Rawalpindi. C.P.L.A. was filed before the Honourable Supreme Court of Pakistan,
which was disposed of on 4-12-1998. Appellant lacks requisite qualification and
was not absorbed by respondent on that count. Appellant availed the remedy
through constitution petition by invoking the jurisdiction under Article 199 of the
Constitution of Islamic Republic of Pakistan which was dismissed and the
decision was affirmed by honourable Supreme Court of Pakistan. After the
decision of honourable Supreme Court of Pakistan, appellant cannot seek the
remedy once again on the same cause of action. The constitutional petition is not
maintainable on this score. Even otherwise the appellant has failed to establish her
case, as she does not possess requisite qualification for acclaimed absorption. The
absorption or extension of period in deputation falls within the domain of
departmental authority, which has exercised its discretionary power in accordance
with law. No interference is called for in the judgment passed by the Judge in
Chamber. This appeal being meritless is dismissed."

4. The earlier civil petition on the same subject was disposed of by this Court vide order
dated 4-12-1998 whereafter the petitioner filed complaint with the Wafaqi Mohtasib
where her claim was that she may not be repatriated unless the rules for permanent
absorption of deputationists are not approved by the Establishment Division. Vide O.M.
No.10/184/R-5 dated 26-6-2003 the Establishment Division accorded approval for the
amendment of the recruitment rules.

5. The learned counsel for the petitioner and Mr. Shah Khawar, D.A.-G. for respondents
Nos.1 to 4 have been heard. The learned counsel for the petitioner contended that during
the pendency of the I.C.A. the petitioner was successful in obtaining Master Degree in
Physical Education in the year 2005 which stand on a high pedestal being a higher
qualification than the Junior Diploma in Physical Education. As regards the second
objection of the pay scale of PET remained uncontested as the N.-W.F.P. Government
upgraded the post from BS-12 to BS-14 for the holders of BA degrees. Accordingly, the
petitioner was placed to the upgraded post with effect from 11-1-2001 and petitioner's
pay scale thus, became equivalent to the scale of PTI in the Federal Government and
besides a number of employees have been absorbed in the Federal Government,
Education Department but discrimination has been meted out to the petitioner.

The learned counsel when confronted to the operating part of the order passed by the

Page No. 3 of 4
Court on 4-12-1998 submitted that it was the duty of the Government to have issued
NOC with regard to the permanent absorption of the service of the petitioner in the
Federal Government Education Department or at least reference for the purpose to have
been made to the Provincial Government by the Education Department, Government of
Pakistan. The learned counsel further contended that the petitioner still holds her lien of
service in her parent department of N.-W.F.P., unless NOC is issued by the Provincial
Government.

6. On the other hand, the learned D.-A.G. argued that subsequent to the decision of this
Court, after due consideration and examining the case of the petitioner vide Office Order
dated 3-10-2003, she was repatriated to her parent department and relieved from duty as
she was deputationist for a period of more than 9 years with the Federal Government and
could not be absorbed for being not qualified as per recruitment rules i.e. F.A./F.Sc. 2nd
Division with Junior Diploma in Physical Education. According to the D.A.-G. since
action has been taken with regard to the repatriation of the petitioner to her parent
department in the light of the O.M. reproduced in the order dated 4-12-1998 passed by
this Court, therefore, in terms of the said order and the repatriation order passed on 3-10-
2003 needs be acted upon as the formal concurrence of the Provincial Government for the
permanent absorption of the petitioner in the Federal Government has not been given.

7. Notwithstanding the ground with regard to the improvement of qualifications of the


petitioner and the question of her entitlement to be permanently absorbed in the Federal
Government under the rules for time being in force; admittedly, the petitioner who holds
lein in her parent department of the Province could not be absorbed permanently in the
Education Department, Government of Pakistan for want of concurrence of the Provincial
Government nor such a concurrence pre-requisite for absorption as claimed was
conveyed to the Federal Government which till date has not been done. Vide Office
Order, dated 3-10-2003 the petitioner was repatriated to her parent department with a
copy thereof forwarded to the Director Public Instructions, Peshawar, the District
Education Officer/the Executive District Officer, Mansehra, and the District Accounts
Officer, Mansehra to which no response was shown by the parent department of the
petitioner nor concurrence of Provincial Government for permanent absorption of the
petitioner in Education Department of the Federal Government was conveyed in absence
whereof, obviously the petitioner's service could not be absorbed in the concerned
department of the Federal Government even if she holds the requisite qualifications and
eligibility for such absorption. The petitioner also did not approach to the Provincial
Government for the purpose for grant of NOC and consequently, in terms of the order
passed by this Court on 4-12-1998 reproduced hereinabove the Office Order issued by the
Federal Government for repatriation of the petitioner holds the field. Hence, the
impugned judgment in our considered opinion is not open to any exception.

8. Thus, for the foregoing reasons this civil petition having no substance is dismissed.
Leave refused.

M.H./H-9/SC Petition dismissed.

Page No. 4 of 4
2010 PLC (C.S.) 1157

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, J

ZAHID ALI LAKHO---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION,


MIRPURKHAS through Chairman and 6 others---Respondents

Constitutional Petition No. D-2575 of 2009, decided on 12th May, 2010.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---


Departmental proceedings---Forged documents---Repatriation to parent organization---
Petitioner during his deputation to borrowing department was absorbed in that
department on the basis of a letter which proved to be forged and fake letter---Effect---
Petitioner disowned the letter on the basis of which letter borrowing department
regularized his services---Parent department stated the letter to be a forgery---Letter
having not been issued by parent department, there was no document on the basis of
which it could be concluded that consent of parent department was obtained by
borrowing department before absorption of petitioner in its service---Borrowing
department a c t e d upon the basis of letter which proved to be a forged document,
therefore, basis desideratum of decision to absorb petitioner in employment had
disappeared---It was only the employer who could take domestic disciplinary action
against his employee and a stranger though he' might resort to civil remedy or criminal
action, could not initiate domestic action against a person who was claimed to be no
more his employee---It was legal obligation on parent department to take back the
petitioner in employment and was at liberty to proceed against him on the basis of
show-cause notice already issued to him---While taking disciplinary action against
petitioner, parent department should in no way be influenced by contents of its earlier
letter or proceedings of inquiry conducted by borrowing department---Petition was
dismissed accordingly.

Province of Punjab, through Secretary C&W Department and others v. Ibrar Younas
Butt, 2004 SCMR 67 and Nazir Ahmad Panhwar v. Government of Sindh through
Chief Secretary, Sindh and others 2005 SCMR 1814 ref.

M. Arshad Khan Tanoli for Petitioner.

Qazi Khalid Ali for Respondent No.1.

Adnan Karim, Addl. A.-G. for Respondents.

Date of hearing: 29th April, 2010.

JUDGMENT

SHAHID ANWAR BAJWA, J.---Facts of the petition are very simple. The petitioner
joined employment of Sindh Workers' Welfare Board (SWWB) in 1999 as an
Accounts Officer in BPS-16. In 2006 vide order dated 24-6-2006 the petitioner was
sent on deputation to the Board of Intermediate and Secondary Education, Mirpurkhas
(B.I.S.E.). On 12-6-2007 an Office Order was issued under the signatures of Secretary
of B.I.S.E. wherein it was stated that Chairman B.I.S.E. has been pleased to absorb
services of the petitioner as Assistant Accounts Officer in BS-17 with effect from 1-7-
2006. Thereafter on 30-4-2008 petitioner requested for his promotion to BS-18. The
promotion Committee did not recommend case of the petitioner. Thereafter on 25-9-
2009 Governor of Sindh/Controlling Authority appointed an Inquiry Officer to

Page No. 1 of 5
conduct inquiry regarding absorption of the petitioner in B.I.S.E. Before the Inquiry
Officer a statement was submitted in which it was stated by the petitioner that his case
for appointment on deputation basis was sent by SWWB vide letter 27-1-2006 and he
was ultimately absorbed in service. After report of the Inquiry Officer was submitted,
Office Order dated 16-11-2009 was issued by B.I.S.E. whereby the petitioner was
ordered to be repatriated back to SWWB. The relevant part of the order dated 16-11-
2009 reads as under:--

"In pursuance of letter No. GS/10/(8)2/2004(SE-III)/86 dated 13-11-2009


issued by the Secretariat of Governor Sindh/ Controlling Authority, the NOC
submitted by Mr. Zahid Ali Lakho for absorption of his services as Assistant
Accounts Officer in B.I.S.E., Mirpurkhas has been proved fake and as such the
process adopted for his absorption became illegal in the light of enquiry
conducted vide Secretariat Notification of even number dated 12-9-2009.
Accordingly, the absorption order issued in respect of Mr. Zahid Ali Lakho
vide No.NISE/ESTT/ MPS/203 dated 12-6-2007 is hereby cancelled and as per
directives of the Controlling Authority, Mr. Zahid Ali Lakho is being
repatriated to his parent Department, i.e. Sindh Workers' Welfare Board
(Education Section) Karachi in his original capacity as Accounts Officer BS-
16 with immediate effect. Subsequently, all outstanding liabilities shall be
cleared by him and submit clearance certificate at the earliest to the
undersigned."

2. This petition has been filed by the petitioner to challenge and impugn order dated
16-11-2009 with the following prayer:--

"(a) To declare that the petitioner's absorption in the Board as Assistant


Accounts Officer in BPS-17 was lawful and the impugned order dated 16-11-
2009 as passed by the Respondent No.2 is without notice and personal hearing
and therefore is illegal, void ab initio, null and void and liable to be
quashed/set aside and the petitioner be allowed to continue as Assistant
Accounts Officer BPS-17 in the Board.

(b) Any other relief(s), which this honourbale Court .may deems fit, just and
proper may kindly be awarded to the petitioner in the light of foregoing
submissions."

3. Comments were filed on behalf of SWWB as well as B.I.S.E. B.I.S.E. in their


comments stated that petitioner produced letter dated 17-5-2007 (letter No.
BM/SWCE/Admin/2(8)/1999/2015) stated to be signed by Secretary, Sindh Workers'
Welfare Board. Letter stated as under:

"Kindly refer to your letter No. B.I. S. E. /ESTT/MPS/-177 dated 8-5-2007 on


the captioned above.

The undersigned: has no objection if the services of Mr. Zahid Ali Lakho
(working on deputation) is absorbed in the Board of Intermediate and
Secondary Education, Mirpurkhas as Assistant Account Officer."

It was subsequently discovered that this letter was a forgery and therefore inquiry was
ordered and it was as a consequence of that inquiry that letter dated 16-11-2009 was
issued. SWWB also filed their comments. They specifically stated that no consent for
absorption of the depute, present petitioner, was given to the B.I.S.E. and that letter
dated 17-5-2007 stated to be signed by Secretary SWWB was a forgery. It was also
stated in the comments that a show-cause notice dated 1-2-2010 has been issued by
SWWB to the petitioner calling upon him to show cause as to why action should not
be taken against him under the Removal of Services (Special Powers) Sindh
Ordinance, 2000 for misconduct of submission of forged and fake letter. It was further
stated in the comments of SWWB that the petitioner had been absorbed by B.I.S.E.
and therefore he did no longer have lien on the post of Account Officer in SWWB.
Therefore it was stated by SWWB that his taking back on the strength of SWWB
might create administrative complications or may cause grievances to the other

Page No. 2 of 5
employees of the Board. Therefore, SWWB was not willing to take back the petitioner
on its strength.

4. Learned counsel for the petitioner submitted that the petitioner has never submitted
the alleged forged letter dated 17-5-2007 and therefore no action could be taken against
him for such a forgery. Learned counsel in this regard also referred to letter written by
B.I.S.E. to SWWB on 8-5-2007 and pointed out that this letter was received by SWWB
on 28-6-2007 and therefore SWWB could not have sent letter dated 17-5-2007. Second
submission of the learned counsel was that his repatriation has taken place under the
orders of the Secretary of B.I.S.E. and the petitioner being an Officer of BS-17, it was the
Chairman B.I.S.E. who is competent authority and therefore his repatriation was without
lawful authority and was of no legal effect. Learned counsel relied upon Province of
Punjab, through Secretary C&W Department and others v. Ibrar Younas Butt 2004 SCMR
67. Learned counsel also relied upon Nazir Ahmad Panhwar v. Government of Sindh
through Chief Secretary, Sindh and others 2005 SCMR 1814 to contend that once having
been absorbed by B.I.S.E. it was not available to B.I.S.E. to recall the order of absorption
because, according to the learned counsel vested right had been created and decisive
steps had been taken.

5. Mr. Adnan Karim, learned Additional Advocate General, submitted that only document
available on record giving consent by SWWB, the parent department of the petitioner is
letter dated 17-5-2007 which letter has been admittedly proved to be fake and forged.
Therefore, the absorption of the petitioner in B.I.S.E. being without legal and valid
consent of SWWB was without lawful authority and of no legal effect. However, learned
A.A.-G. submitted that the petitioner cannot be absorbed in SWWB, while at the same
time the learned A.A.-G. supported the order of repatriation.

6. We have considered the submissions made by the learned counsel and have also gone
through the record as far as case law cited at the bar.

7. In Ibrar Younas Butt's case (supra), the facts were that respondent was employed by
L.D.A. in BS-17 as Assistant Engineer in 1986. On the orders of the then Chief Minister,
he was posted in Highway Department on deputation vide order dated 23-1-1989.
Thereafter in 1990 his, services were regularized in the Highway Department and in this
connection consent/permission was obtained from L.D.A. for permanent absorption. In
1998 order was issued for repatriation of the petitioner to the parent department. The
Supreme Court observed as under:--

"After termination of his lien in the parent department how his services could
have been repatriated that too without proper opportunity of hearing as certain
vested rights had accrued in favour of respondent after permanent absorption on
the direction of competent authority. The repatriation of respondent could not be
directed in an arbitrary and capricious manner as no such unfettered powers have
been conferred upon the Chief Secretary to pass such orders which are not in
accordance with the relevant provisions of law and rules made thereunder. After a
lapse of more than a decade the validity of initial appointment and subsequent
absorption cannot be questioned save in accordance with law.

(7) The conclusion as arrived at by the Punjab Service Tribunal being well-based
does not warrant any interference. As mentioned hereinabove the order of
repatriation has been passed without affording proper opportunity of hearing to
the respondent which resulted in serious miscarriage of justice. The petitioner
may initiate action in this context subject to all legal exceptions after affording
proper opportunity of hearing to the respondent and decision be made strictly in
accordance with law and rules made thereunder."

8. In the present case, the petitioner has disowned letter dated 17-5-2007 on the basis of
which letter B.I.S.E. has regularized services of the petitioner. SWWB has stated this
letter to be a forgery. Thus, where SWWB says we have not issued this letter and even the
petitioner says that this is not a letter issued by SWWB, the question would be on the
basis of what document can anyone come to the conclusion that consent of SWWB,
parent department of the petitioner, was obtained by B.I.S.E. before absorption of the

Page No. 3 of 5
petitioner in the service of B.I.S.E. It is B.I.S.E.'s case that they acted upon on the basis
of letter dated 17-5-2007 which letter, it is now- every one's case, is a forged document.
Therefore, the basis desideratum of the decision to absorb the petitioner in the
employment of B.I.S.E. has disappeared. In that view of the situation, it is difficult, nay
impossible, to understand as to how absorption of the petitioner in the employment of
B.I.S.E. could be allowed to stand. The petitioner may or may not have been guilty of
producing or procuring letter dated 17-5-2007, because that is a question which can be,
should be and must be sorted out in separate proceedings, but the petitioner cannot be
allowed to derive any benefit on the basis of letter, a document which by the, contention
of the petitioner's counsel himself is not a properly issued letter, to say the least about it.
We therefore hold that petitioner had never been lawfully absorbed in the employment of
B.I.S.E.

9. Contention of the learned counsel for the petitioner that it is the Chairman of B.I.S.E.
who is competent authority in respect of persons in employment of B.I.S.E. in BS-17
and above and that therefore, under the letter of the Secretary the petitioner could not
have been repatriated, is without force. Since we have held above that the petitioner
never became an employee of B.I.S.E. therefore, question of Chairman being competent
authority in 'respect of employees in BS-17 and above of B.I.S.E. is of no help to the
petitioner because in order to take advantage of that contention, the petitioner had to
first establish that he had become, in accordance with law, an employee of B.I.S.E.
and we have held above that the petitioner in law never became an employee of
B.I.S.E.

10. Reliance by the learned counsel for the petitioner on Ibrar Younas Butt's case is
again misconceived because firstly in Ibrar Younas Butt's case he had been absorbed
in the Highway Department with the consent of L.D.A. parent department and
secondly the respondent in that case was repatriated without any show-cause-notice
and without any inquiry being held against him as it was alleged that he had secured
his absorption by using political influence. In the present case, it is available on
record that show-cause-notice issued to the petitioner, petitioner replied to the show-
cause-notice was thereafter inquiry was held, petitioner participated in inquiry and his
statement was recorded and it is thereafter that Inquiry Officer submitted his report.
Letter dated 16-11-2009 clearly states that decision had been taken in the light of
inquiry conducted. Therefore on all these counts case of Ibrar Younus Butt, is clearly
distinguishable from the case of the present petitioner.

11. Learned counsel for the petitioner also relied on Nazir Panhwar's case (supra) in
which concept of locus poeinitentiae was discussed. The facts of the case were that on
8-11-1995, the petitioner was made Acting General Manager in a Sugar Mill and on
21-4-1996 he was posted Acting General Manager in another Sugar Mill in his own
pay and scale. Thereafter he was posted in 1997 as Deputy Secretary on deputation in
Chief Minister's Secretariat. Thereafter his services were placed at the disposal of
Agricultural Department for his absorption against the post of Director (Admn.) in
BS-19 in Sindh Seed Corporation. This was given effect to and he resumed the charge
of Director Administration. However in 1999 his absorption was cancelled 'and he
was repatriated. Such order was assailed by him before Service Tribunal. His appeal
was dismissed. The matter was taken to the Supreme Court. It was held by the
Supreme Court as under:

"The contention on behalf of the petitioner that the order, dated 24-11-1997
had been acted upon, therefore, a vested right had been conferred on the
petitioner to continue on the post of Director(Administration) in Sindh Seed
Corporation, in view of the principle of locus poenitentiae is misconceived as
this principle can be invoked only in respect of an order which is legal and not
in respect of an order which is contrary to and in contravention of any
provision of law or the rules made there under or a settled provision of law."

12. This case rather supports the case against the petitioner rather than the case for the
petitioner. Even otherwise since absorption of the petitioner has been, as held above,
without any lawful authority, the petitioner cannot get benefit of an action which has
been taken without any lawful authority.

Page No. 4 of 5
13. Whereas the contention of the petitioner was quite in contradiction with each
other, on the one hand he contended that he had been absorbed and on the other hand
he contended that he had not procured or produced letter dated 17-5-2007 and
therefore there was no consent for his absorption, contention of the learned A.A.-G.
that petitioner though liable to be repatriated was not entitled to be taken back by
SWWB is also without force. SWWB has been prompt and quick in issuing show-
cause-notice to the petitioner but is delaying and dragging its feet in accepting back
the petitioner on the pretex that the petitioner has been absorbed in B.I.S.E. If the
petitioner had been absorbed in B.I.S.E. from where did SWWB derive authority to
issue show-cause-notice to the petitioner. It is settled law that it is only the employer
who can take domestic disciplinary action against his employee and a stranger though
he may resort to civil remedy or criminal action, cannot initiate domestic action
against a person he claims is no longer his employee. Therefore, it is legal obligation
of SWWB to take back the petitioner in its employment. After the petitioner had been
taken back in employment, SWWB shall be at liberty to proceed against the petitioner
on the basis of show-cause notice dated 1-2-2010 already issued to the petitioner.
However it is made clear that while taking disciplinary action and in domestic action,
SWWB shall in no way be influenced by contents of letter dated 16-11-2009 or
proceedings of inquiry conducted by B.I.S.E.

With the above observations, this petition is dismissed.

M.H./Z-7/K Petition dismissed.

Page No. 5 of 5
2010 P L C (C.S.) 1302

[Service Tribunal Baluchistan]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Idrees Baloch,


Member-I and Muhammad Anwar Khan, Member-II

EJAZ AHMED

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Finance-cum-Director


Local Fund Audit Finance Department, Balochistan and 3 others

Service Appeal No.40 of 2007, decided on 14th December, 2009.

Civil service---

----Employee on deputation---Repatriation---Effect on lien, seniority and


promotion---Employee who was sent on deputation, subsequently was repatriated to
his parent department; however, he was placed at Serial No.9 in the impugned
seniority list and 8 employees who were most junior in appointment were shown
senior to the employee in the list and repatriated employee was treated as fresh
appointee---Validity---Government employee who was sent on deputation to serve
borrowing department, would continue to hold his basic service cadre with parent
department till his permanent absorption in the borrowing department---Lending
department did not enjoy any power or authority under law to arbitrarily revoke or
terminate lien of its employee temporarily serving in some other institution, statutory
body or Government department as deputationist---Civil servant having not been
confirmed in any of his subsequent job, his lien with his parent department would
remain intact throughout; despite the fact that he joined service in another department
or in an autonomous body--Lien of a civil servant could not be terminated even with
his consent; and that same could be terminated only when he was confirmed against
some permanent post---Nothing was available on record to show that employee in the
present case was confirmed in the department in which he was sent on deputation---
Civil servant after revertion to parent department would automatically regain his
original seniority---Department was not justified while declining the grant of seniority
and promotion to the employee---Impugned seniority list, in circumstances, was
declared illegal and it was directed that same be revised, while placing the employee
at Serial No.1 in the seniority list being senior.

Manzoor Ahmed Rehmani for Appellant.

Ijaz Sawati for Respondents Nos.3 and 4.

Tariq Ali Tahir, A.A.-G.

Date of hearing: 7th December, 2004.

JUDGMENT

MUHAMMAD HASHIM KHAN KAKAR (CHAIRMAN).---This appeal under


section 4 of the Balochistan Service Tribunals Act, 1974 has been preferred by the
appellant against the order/seniority list dated 13-10-2005 wherein he has been placed
at S.No.9 instated at S.No.1 being senior.

2. The relevant facts in small compass are that the appellant was appointed as Auditor
in BPS-11 on 28-5-1984 in Local Fund Audit Department and thereafter was
confirmed on 30-8-1990. Later on he was recruited as Assistance Manager Finance
in Lasbella Industries Estate Development Authority (hereinafter referred to as
L.I.E.D.A.) on 27-4-1994. He was repatriated to his parent department on 14-1-
2005. However, his name was placed at S.No.9 in the impugned seniority list dated

Page No. 1 of 2
13-10-2005 and 8 Auditors who were most junior in appointment and confirmation
in the department were shown senior to appellant in the said list, and appellant was
treated as fresh appointee. The appellant being aggrieved made a number of
representations in regard of seniority list, protection of salary and promotion to the
rank of Audit Officer BPS-16 but the same were not disposed of.

3. On the other hand, the respondents contested the appeal on legal and factual
aspects by means of filing their written replies.

4. We have considered the contentions raised by the learned counsel for the parties
and also perused the available record with their valuable assistance.

5. In order to resolve the controversy regarding deputation and lien, it will be


appropriate to reproduce the contents of letter dated 14th January, 2005 whereby the
appellant was repatriated in parent department, which is as follow:

"The Government of Balochistan is pleased to allow the reversion of Mr.


Ejaz Ahmed, Junior Auditor to his parent department Local Fund Audit
Finance Department with immediate effect. On his reversion to his parent
department the Lasbela Industries Estate Development Authority may relieve
him immediately with clearance of all his dues if any in L.I.E.D.A."

6. It is crystal clear from bare reading the contents of aforesaid letter that the
appellant was repatriated to his parent department by the competent authority. There
is no cavil to principle of law, that Government employee who is sent on deputation
to serve borrowing authority continues to hold his basic service cadre with parent
department till his permanent absorption in the borrowing department. Lending
department does not enjoy any power or authority under law to arbitrarily revoked
or terminate lien of his employee temporarily serving in some other institution,
statutory body or government department as deputationist. Civil servant having not
been confirmed i n any of this subsequent job, his l i e n with his parent department
remains intact throughout, in spite of the fact that he joins service in other
department or in an autonomous body; lien of a civil servant could not be terminated
even with his consent, and that the same could be terminated only when he is
confirmed against some permanent post. There is nothing available on record to
show that the appellant was confirmed under the L.I.E.D.A.

7. It is also settled principle of law that a civil servant after' reversion to parent
department automatically regains his original seniority as such, the department was
not justified while declining the grant of seniority and promotion to the appellant.

8. The record also indicates that it is a case of hardship. The appellant during his
deputation period in L.I.E.D.A. was drawing Rs.16,222 as per salary and after
reversion a service period of about 20 years has not been considered by the
respondent-department and presently he is being given salary of net amount of
Rs.6,866 without any justification in gross violation of principle of protection and
fixation of salary instead of taking sympathetic view.

9. For the foregoing reasons, the impugned seniority list dated 13-10-2005 is hereby
declared illegal. The respondents are directed to revise the same while placing the
appellant at S.No.1 being senior and remarks should be deleted. They are to enter
the qualification of appellant as B.A. instead of M.A. The salary of appellant should
be fixed while considering his total period of service including the deputation
period. He should be granted pro forma promotion from 27-5-2006 without back-
benefits.

10. With the observation made hereinabove the appeal stood disposed of with no
order as to costs.

H.B.T./13/BST Order accordingly.

Page No. 2 of 2
2009 P L C (C.S.) 234

[Lahore High Court]

Before Zubda-tul-Hussain, J

AZHAR RASHEED

Versus

BOARD OF REVENUE

Writ Petition No.2929 of 2004, decided on 13th August, 2008.

(a) Civil Service---

----Deputation---Absorption---Vested right---Scope---Person appointed by initial


recruitment or by promotion if transferred or deputed to any other office/department,
retains his lien with parent department as is admissible under the Rules and is
terminated only by competent authority in accordance with law/Rules---After transfer
or deputation such employee unless absorbed in department to which he has been
transferred or deputed continues to be employee of his parent department and it is
lawful for competent authority to seek his repatriation to parent department/office---
Transfer or deputation from one department to another does not by itself create a
vested right in favour of transferred or deputed official to claim his employment with
the latter department / office before his absorption in such department.

(b) West Pakistan General Clauses Act (VI of 1956)---

----S.20---Locus poenitentiae, principle of---Scope---Authority which can pass order


is entitled to vary or to rescind the same but such, power does not include the power
or authority to take away a validly acquired right---Power of rescinding till decisive
steps are taken is also exercisable for replacing or rectifying wrong steps taken by
concerned authority---Such power is not available to such authority when decisive
steps have already been matured---Decisive step is deemed to have been ?taken when
order takes effect and certain rights are created in favour of beneficiary of such
order---Authority which has passed. an order can withdraw same but only before
decisive steps have been taken---Moment the matter has been finalized and the other
party has also acted upon it, valuable rights created thereby cannot be jeopardized by
rescinding such order.

(c) Civil Servants Pension Rules, 1963---

----Capital Development Authority Act, 1976, S.25---Notification


No.1(66)RP/P&D/90, dated, 10-3-1993---Capital Development Authority
employees---General Provident Fund---Scope---Petitioner was an employee of Capital
Development Authority and was on deputation in another government department---
Petitioner was concerned about his General Provident Fund which he had been getting
deducted during his service on deputation---Validity---Benefits which were not
admissible under Rules framed or adopted by Capital Development Authority could
not be claimed by its employees as of right---Contribution towards General Provident
Fund on the credit of employees of Capital Development Authority was their own
property, reimbursement of which could be claimed by them at any time---Any clog
or restriction under General Provident Fund Rules could not restrain payment of
deposit to employees of Capital Development Authority because they were not
governed by such Rules and as such the restriction did not apply to their deposit---As
deduction was made and amount remained in the custody of government/concerned
office, the usual interest would be given on the contribution.

(d) Capital Development Authority (Appointment and Conditions of Service)


Rules, 1993---

Page No. 1 of 6
----R. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---
Seniority list---Petitioner was employee of Capital Development Authority and
remained on deputation with a government department along with other employees of
the Authority---Plea raised by petitioner was that a separate seniority list inter se the
employees on deputation be prepared---Validity---Petitioner was appointed by initial
recruitment, he was always an employee of Capital Development Authority and never
remained on the service roll of the other department where he remained on deputation
Seniority list of employees of one and the same organization, unless provided under
Rules, could only be maintained jointly among the employees of a specific category---
Petitioner could not claim for maintaining a separate seniority list---Authorities had
stated that seniority list would be maintained strictly in accordance with the
provisions of R.8 of Capital Development Authority (Appointment and Conditions of
Service) Rules, 1993---Petitioner did not contend that in joint seniority list he was
placed on wrong place---High Court declined to interfere with the seniority list
prepared by the authorities---Petition was dismissed in circumstances.

Wajid Aftab Misson for Petitioner.

Sh. Masood Ashraf for Respondent.

Date of hearing: 13th August, 2008.

JUDGMENT

ZUBDA-TUL-HUSSAIN, J.---Thirty-nine (39) candidates, including the petitioner,


were appointed as Patwaries in BPS-5 by the Cholistan Development Authority through
letter No.CDA-87/968-1023, dated 11-5-1987. While specifying the method/mode of
payment of salaries it was observed that the salary was to be charged to the Head 512-
Land Management (Land Records and Colonization) Land Record District charges for the
years 1986-87 which arrangement was seemingly extended on yearly basis. The salary of
some of the appointees was, however, charged from the funds and budget of the C.D.A. In
relation to the officials who were paid from the funds/budget of the Director Land
Records certain deductions such as the G.P. Fund, Benevolent Fund etc. were regularly
made. Subsequently, however, (consequent upon the devolution plan) the budget
provisions were also revised and the charge under the Head 512-Land Management (Land
Records and Colonization) Land Record District charges from which the petitioner and
other Patwaries were being paid the salary was omitted and discontinued. Resultantly, the
C.D.A. started payment of salaries to these Patwaries from its own budget.

2. According to the petitioner, the original arrangement of payment of salary from the
budgetary allocation of Director Land Records, including pensionary contribution as such
had developed an expectancy to the petitioner of being entitled to the pension and other
benefits at the time of his superannuation. It also somehow occurred that the seniority list
of those employees who received salary from the budget of the Director Land Records
was prepared separately from the other Patwaries of the C.D.A. Thus, the grievance of
the petitioner is two-fold:--

(i) The cessation of the facility of G.P. Fund, Benevolent Fund and pension has
adversely and unlawfully affected his rights; and

(ii) As a result of the aforesaid cessation, preparation of a combined seniority list


is unlawful.

3. The learned counsel for the petitioner has argued that once the salaries of the petitioner
etc. having been charged from the budget of the D.L.R., it could not be recalled or
changed to the detriment of the petitioner. According to the learned counsel, the terms
and conditions of payment of salary through the budget of D.L.R. head attained finality
and as such action of the respondents for taking the petitioner and others on the common
roll of the C.D.-A. was hit by the principle of locus poenitentiae. It has also been argued
that the petitioner and others had an understanding for a liason between the two
departments from the very inception of their service which had been disturbed
unlawfully. Similarly the learned counsel has also asserted that once a separate seniority

Page No. 2 of 6
list was prepared the merger of the petitioner etc. and preparation of common seniority
list in the C.D.A. was also unwarranted and unlawful.

4. The basic and hard reality which perhaps the petitioner and other similar employees
may never wish to realize or press into service is that they were recruited in the service
by the C.D.A. as the employees of the C.D.A. and were never absorbed in or placed on
the roll of or as the employees of the M.B.R./D.L.R. The very appointment order
produced and relied upon by the petitioner is sufficient to show that the petitioner and the
other similar employees were recruited by the C.D.A. as its own employees. They always
worked as recruitees/employees of the C.D.A. The D.L.R. provided the source and mode
of payment of salary which was only a financial arrangement settled or made for
disbursement of salaries. Thus, the petitioner and other similar employees were always
the employees of the C.D.A. and the only lien they had with the D.L.R./M.B.R. was for
the purpose of their pay and salary as the expenditure was to be charged from the head
allocated to the D.L.R.

5. Payment of salary alone does not determine the hierarchy of the employees. If by way
of some mutual settlement the two departments or institutions which are also under the
administration and financial control of the same Government, had chalked out an
arrangement for payment of salaries from the budgetary provisions against different heads
it could not by itself mean that the payees had become the employees of the
institution/department from the budget of which salaries were being disbursed to them.
Their status has to be determined by the nature of their appointment.

6. The law has provided various modes of appointments to civil service. Section 4 of the
Punjab Civil Servants Act, 1974 provides that appointment to a civil service of the
Province or to a civil post in connection with the affairs of the Province, shall be made in
the prescribed manner by the Governor or by a person authorized by him in that behalf.
Pursuant to section 4 the matters in relation to appointment and conditions of service
have been dealt with in the Punjab Civil Servants (Appointment and Conditions of
Service) Rules, 1974. The study of the said Act and the Rules framed thereunder shows
that the appointment to a civil service can be made by initial recruitment or by promotion,
transfer or deputation. A person appointed by initial recruitment or by promotion if
transferred or deputed to any other office/department retains his lien with the parent
department as is admissible under the Rules and it is terminated only by the competent
authority in accordance with law/Rules. After transfer or deputation such an employee
unless absorbed in the department to which he has been transferred or, deputed continues
to be the employee of his parent department and it is lawful for the competent authority to
seek his repatriation to the parent department/office.

7. What follows from the above is that the transfer or deputation from one department to
another does not by itself create a vested right in favour of the transferred or the deputed
official to claim his employment with the latter department/office before his absorption in
such department. As already observed, it is a hard fact and undeniable reality that the
petitioner and the similar employees were recruited by the C.D.A. as its own employees.
They were never absorbed in the office of the Director Land Records/Board of Revenue
nor their lien was ever terminated from the service of C.D.A. Another important factor to
be kept in view is that the budget under the head from which the petitioner etc. were paid
salary was issued on yearly basis which by itself is sufficient to show that the petitioner
and others as such had no permanent place in any office other than the C.D.A. Payment
or drawal of the salary from a specific head was only budgetary arrangement to meet the
requirements of the C.D.A. and its employees. As soon as the provision of budget in the
said head for payment of salary to the petitioner etc. was discontinued, they ceased to
have any opportunity to receive the salary from the erstwhile head of account. The
arrangement naturally reverted back to the C.D.A. and it was for the C.D.A. then to
manage the budget and funds for the payment of salary to the petitioner.

8. As the service of the petitioner and the similar employees was for all intents and
purposes under the auspices of the C.D.A. the deductions, if any, made from their salaries
did not create a vested right in them for the same over and above the service rules of the
C.D.A. It is very simple that when there was Ito budget in a specific head the question of
payment of salary and making deductions therefrom did not arise. It is also questionable

Page No. 3 of 6
whether the deductions of G.P. Fund etc. could validly and compulsorily be made from
the salary of the petitioner etc. who were not the employees of the department from the
budget of which department they were getting pay because they being not the employees
of that department were to be governed by the Service Rules of their own department i.e.
C.D.A.

9. The contention regarding the rule of locus poenitentiae is without any force and has
rather lost all its significance in the light of the circumstances discussed above. Section
20 of the West Pakistan General Clauses Act, 1956 lays down that where a power to issue
notification rules, scheme, form or bye-laws is conferred then that power includes a
power, exerciseable in the like manner and subject to the like sanction and conditions (if
any), to add to, amend, vary or rescind, any notifications, orders, rules, scheme, form,
bye-laws so issued.

10. By virtue of these provisions the authority which can pass an order is entitled to vary
or to rescind the same but, it is correct that such power does not include the power or
authority to take away a validly acquired right. Power of rescinding till descisive steps
taken is also exerciseable for replacing or rectifying the wrong steps taken by the
concerned authority. This power of course is not available to such authority when
decisive steps have already been matured. A decisive step is deemed to have been taken
when an order takes effect and certain rights are created in favour of the beneficiary of
such steps. The crux of the matter is that the authority which has passed an order can
withdraw it but only before decisive steps have been taken. The moment the matter has
been finalized and the other party has also acted upon it the valuable rights created
thereby cannot be jeopardized by rescinding such order.

11. As already stated, the claim of the petitioner under the principle of locus poenitentiae
is misconceived. The employer/C.D.A. was not itself competent to place or transfer or
depute the services of the petitioner and others permanently on the disposal of the
Revenue Department of Government of the Punjab. Board of Revenue only made an
arrangement for the payment of the salary/pay to the petitioner etc. from the budget
provided to the D.L.R. under a mutual arrangement between the C.D.A. and Revenue
Department, Government of the Punjab. The question of taking any final or decisive steps
in relation to the pay of the petitioner by the Revenue Department or their services in that
department thus, did not arise. Thus, the basic thing in relation to the case of the
petitioner is that it is not as such a case of decision or of any final order. It was only a
change of the arrangement for the purposes of pay of the petitioner and other similar
employees. The principle of locus poenitentiae, therefore, is not relevant to the case of the
petitioner.

12. The prayer made by the petitioner in the writ petition can be jotted down as under for
facility of understanding:--

(i) The previous arrangement of disbursement of salaries from the Head 512-Land
Management (Land Record and Colonization) Land Record District charges may
be restored;

(ii) the status of the service prior to the change of the arrangement of payment of
salary may be restored;

(iii) the benefit of pensionable service may be made available;

(iv) the benefits flowing from the Benevolent Fund, G.P. Fund, Group Insurance
etc. may be made applicable; and

(v) the seniority may be maintained separately instead of the new combined
seniority list.

It has repeatedly been mentioned above that the budget allocation under the desired head
of the petitioner as previously allocated to the D.L.R. has been discontinued. If no
budget is available in the given head there can be no question of payment of salary
from the same. Hence, the earlier arrangement of payment of salary cannot be

Page No. 4 of 6
restored from any point of view. The status of the service of the petitioner as such has
not undergone any change. He was an employee of the C.D.A. from the very inception
and even in the current situation he continues to be its employee. The pay scale etc.
also have not been changed at all.

13. The claim that the petitioner has been deprived of the benefit of pension on
superannuation is absolutely misconceived for the simple reason that in pursuance of
section 25 of the C.D.A. Act, 1976 the competent authority has extended the West
Pakistan Civil Servants Pension Rules, 1963 to be applicable mutatis mutandis to the
employees of the C.D.A. A copy of the Notification No.1(66)RP/P&D/90, dated 10-3-
1993 available on the file can be perused in this behalf. The service of the petitioner
and others under the C.D.A. is, therefore, pensionable in accordance with the
aforesaid Rules.

14. The benefits of Benevolent Fund, G.P. Fund, Group Insurance etc. can be
admissible to the public servants only under the relevant Rules. As the petitioner was
and is employee of C.D.A., the benefits which are not admissible under' the Rules
framed or adopted by it, the same cannot be claimed by him as of right. So far as the
previous contribution towards the G.P. Fund is concerned the amount on the credit of
the petitioner and others is their own property, reimbursement of which can be
claimed by them at any time. Any clog or restriction under the G.P. Fund Rules cannot
restrain the payment of the deposit to the petitioner and others because they were not
governed by these Rules and as such the restrictions will not apply to their deposit. As
the deduction was made and amount remained in the custody of the
Government/concerned office, the usual interest shall surely be given on the
contribution.

15. The matter of seniority of the employees of the C.D.A. are governed by the
C.D.A. (Appointment and Conditions of Service) Rules, 1993. Rule 8 provides as
under:---

"The seniority inter se of the employees appointed to posts in the same group
shall be determined:

(a) In the case of employees appointed by initial recruitment, in accordance


with the order of merit assigned by the Selection Committee:

Provided that employees selected for appointment to the post in an earlier


selection shall rank senior to the employees selected in the latter selection and

(b) ---------------------------------------------------------------

Explanation I

---------------------------------------------------------------
---------------------------------------------------------------

Explanation II

---------------------------------------------------------------
---------------------------------------------------------------

Explanation III

---------------------------------------------------------------
---------------------------------------------------------------"

It is an admitted fact that the petitioner was appointed by initial recruitment. As


already held he was always an employee of the C.D.A. and never remained on the
service roll of the DLR/Board of Revenue. The seniority list of the employees of the
one and the same organization unless provided under the Rules can only be
maintained jointly among the employees. of a specific category. There can, therefore,

Page No. 5 of 6
be no valid question or claim for maintaining a separate seniority list for the
petitioner. It has been stated on behalf of the respondents during the arguments that
the seniority list shall be maintained strictly in accordance with the aforesaid
provision of Rule 8. It is not the case of the petitioner that in the joint seniority list he
has been placed on wrong place. His claim is for a separate seniority list which
already stands rejected.

16 For all what has been discussed above, this petition has no force which is
dismissed. Keeping in view the nature of the case there shall be no order as to the
costs.

M.H./A-96/L Petition dismissed.

Page No. 6 of 6
2009 P L C ( C . S . ) 8 3

[Islamabad High Court]

Before Sardar Muhammad Aslam, C. J. and Syed Qalb-e-Hasan, J

Dr. JAMAL ZAFAR

Versus

Dr. NIGHAT BILAL and 2 others

I.C.A. No.2 of 2003 in Writ Petition No.2334 of 2001, decided on 30th April, 2008.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S.12(2) & Art.151---Intra-court appeal---


Limitation---Constitutional petition was decided on 2-12-2002---Application for
obtaining certified copy of impugned judgment was made on 4-12-2002, which was
obtained on 19-12-2002---Intra-court appeal against decision of constitutional petition
was filed on 3-1-2003---Validity---Appellant was not expected to hurriedly file an appeal
without examining reasons given against him in impugned judgment---Time spent in
obtaining such certified copy was excluded---Appeal was within time.

Board of Governors, Area Study Centre for Africa and North America, Quaid-e-Azam
University, Islamabad and another v. Mst. Zahra PLD 2005 SC 153; Ghulam Hussain
Shah v. Ghulam Muhammad PLD 1974 SC 344; Wali Muhammad and others v. Wali
Muhammad PLD 1974 SC 56; Tahir Ali and others v. Chief Judge, Karachi Small Causes
Court and another PLD 1963 SC 147 and Khalid Mehmood Watoo v. Government of
Punjab 1998 SCMR 2280 ref.

(b) Constitution of Pakistan (1973)---

----Arts. 199 & 212---Civil Servants Act (LXXI of 1973), Ss.8 & 9---Constitutional
petition---Civil servants' prayer for determination of his seniority for promotion to Grade-
19---Validity---Such dispute of seniority related to terms and conditions of petitioner's
service---High Court could not entertain and adjudicate upon such matter due to bar
contained in Art.212 of the Constitution---Constitutional petition was dismissed in
circumstances.

Khalid Mehmood Watoo v. Government of Punjab and others 1998 SCMR 2280 and
Asad Ullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129 ref.

(c) Civil Servants Act (LXXI of 1973)---

----S. 9---Seniority---Contest between senior most regular employee of department and


deputationist---Absorption of respondent in borrowing department on permanent basis
upon directive of Prime Minister without considering case of such regular employee---
Validity---Such absorption was contrary to law and policy governing appointment on
deputation---Deputationist could not sit over head of such senior employee in the
department.

Ibad-ur-Rehman Lodhi for Appellant.

Qazi Muhammad Jamil for Respondents.

ORDER

This I.C.A. is directed against the judgment, dated 30-10-2002, passed by a learned Judge
in Chamber, whereby, Notifications dated 3-5-2001 and 25-5-2001, were declared to have
been issued without lawful authority and the respondent was declared to be a permanent
employee of Federal Government in BPS-19.

Page No. 1 of 4
2. Brief facts of the case are that the respondent was employed as Senior Registrar
(Medicine) Ganga Ram Hospital, Lahore. During his tenure of duty at Ganga Ram
Hospital, the hospital was taken over by the Government of Punjab, in consequence
whereof, she was treated as an employee of Government of Punjab. Through Notification
dated 19-11-1992, her services were borrowed by the Federal Government and she was
posted in PIMS, Islamabad, on deputation in Grade-18. According to her, she was
permanently absorbed in PIMS in BPS-19, as Physician vide Notification, dated 24-11-
1994. Feeling aggrieved of the notification of absorption of the respondent, the appellant,
Dr. Jamal Zafar, approached Federal Service Tribunal, challenging the validity of
aforesaid notification. During the pendency of appeal before the learned Federal Service
Tribunal, it was submitted by Representative of PIMS that there are three posts of BPS-
19, out of which two have been filled up and one is lying vacant and the appellant, being
eligible for the post of BPS-19 could be considered for appointment. Learned counsel
representing the appellant, felt satisfied on the undertaking that if the appellant is
considered, he will not press the appeal before the learned Tribunal. On the undertaking
given, appeal before the Tribunal was accordingly disposed of. After disposal of appeal
by the Federal Service Tribunal, Cabinet Secretariat, Establishment Division, through
Notification, dated 25-9-1997, describing the respondent as Senior Registrar (BPS-18),
repatriated her to the Health Department, Government of Punjab. Feeling aggrieved of
the notification, thus issued, she preferred Writ Petition No.2153 of 1997, before the
Lahore High Court, Rawalpindi Bench, Rawalpindi. The writ petition was dismissed in
limine holding that she is civil servant and the grievance is relating to her terms and
conditions of service and is challengeable before the Federal Service Tribunal. Against
the dismissal of writ petition, she preferred I.C.A. 7 of 1997, which was allowed that
order of repatriation as contained in aforesaid notification was issued without lawful
authority and respondent was deemed to be a permanent employee of the Federal
Government. It was further observed that the matter relating to entitlement of the
respondent to hold BPS-19 could be examined without disturbing her status as a
permanent employee of the Federal Government.

3. The respondent-Department feeling free to decide the question of grade as observed by


the learned Division Bench, issued Notification, dated 3-5-2001, whereby the petitioner
was absorbed in BPS-18, against a vacant post in PIMS with her right of seniority w.e.f.
24-11-1994 in the cadre, and in pursuance of the notification of absorption, she was
posted as physician in BPS-18, against a vacant post vide Notification, dated 25-5-2001.
The respondent challenged both the Notifications through Writ petition No.2334 of 2001
with the prayer that she be placed in seniority prior to the issuance of the impugned
Notifications.

4. After hearing learned counsel for the parties the writ petition was accepted and the
respondent was declared to be a permanent employee of the Federal Government in BPS-
19 and impugned Notifications were declared to have been issued without lawful
authority. It was further observed by the learned Judge in Chamber that grant of BPS-19
to the respondent was taken to the FST by the appellant himself and the manner in which
the appeal was disposed of by the Federal Service Tribunal leaves no doubt that right had
come to vest with the respondent to hold the post in Grade-19, hence, this I.C.A.

5. The I.C.A. came up for hearing before learned Division Bench of Lahore High Court,
Rawalpindi Bench, Rawalpindi, on 29-6-2005, whereby, after hearing learned counsel for
the parties, it was dismissed on the question of its maintainability. The order passed by
the learned Division Bench is reproduced hereunder:--

"The matter pertains to the terms and conditions of a civil servant and the law has
provided remedy of appeal before the higher competent forum, thus, in view of
the bar contained in subsection 3(2) of Law Reforms Ordinance, this appeal being
incompetent is dismissed."

6. The respondent preferred civil petition before the Honourable Supreme Court on the
ground that learned Division Bench, has not decided the case on merits. The Honourable
Supreme Court, converted the petition into appeal and directed this Court to redecide the
matter after discussing the merits of the case.

Page No. 2 of 4
7. Learned counsel for the appellant submits that grievance of the respondent was related
to her terms and conditions of service and learned Judge in chamber was not competent
to grant the relief in view of bar contained in Article 212 of the Constitution of Pakistan.
He further submitted that the disposal of service appeal did not create any legal right to
respondent against the rules of service, however, any right accrued to her in the appeal
was vanished after the observation made by learned Division Bench that the matter
relating to entitlement of the appellant to the grant of BPS-19 could be examined without
disturbing her status as permanent employee of the Federal Government.

8. Learned counsel for the respondent, at the very outset, questioned the maintainability
of the I.C.A. on the ground that it was hopelessly time-barred, as time spent in getting
certified copy of an order cannot be excluded from the period of limitation. He further
submitted that the matter falls within the exceptions mentioned in proviso to section 4 of
the Service Tribunal Act, 1973 and any order or decision by the authority determining the
fitness or otherwise of a person, to hold a particular post, no appeal lay to the Service
Tribunal and there was only remedy left with the respondent to invoke the constitutional
jurisdiction of this Court.

6. (sic) We have heard learned counsel for the parties and perused the record. Question of
limitation is to be decided first. Writ petition was decided on 2-12-2002. The appellant
applied for its certified copies on 4-12-2002, which was received by him on 19-12-2002,
whereas the instant I.C.A. was filed on 3-1-2003. Limitation prescribed for filing of an
I.C.A. is 20 days. Admittedly, if, time spent in securing certified copies of the judgment
impugned is excluded the I.C.A. is within the time. The Honourable Supreme Court in
case Board of Governors, Area Study Centre for Africa and North America, Quaid-e-
Azam University, Islamabad and another v. Mst. Zahra PLD 2005 SC 153 was pleased to
hold that both the parties to the litigation were under the impression that certified copy
was required for filing an I.C.A. Therefore, time spent in obtaining certified copies was
excluded from period of limitation. The same view was taken by the Honourable
Supreme Court in the cases of Ghulam Hussain Shah v. Ghulam Muhammad PLD 1974
SC 344, Wali Muhammad and others v. Wali Muhammad PLD 1974 SC 56, Tahir Ali and
others v. Chief Judge, Karachi Small Causes Court and another PLD 1963 SC 147 and
Khalid Mehmood Watoo v. Government of Punjab 1998 SCMR 2280. Taking guidance
from the aforementioned judgments passed by the Honourable Supreme Court, we are
convinced that the time spent for obtaining certified copies of the judgment is to be
excluded and the appellant was not expected to hurriedly file an appeal without
examining the reasons given against him in the impugned judgment. We, therefore, are
convinced to hold that the objection is not sustainable and accordingly turned down the
same holding that I.C.A. was instituted within time.

7. (sic) As regard to the question of maintainability, it is appropriate to see the prayer


made by the writ petitioner which is reproduced hereunder:--

"It is therefore, prayed that the Notification F.25-70/91 Est.1, dated 3rd May,
2001, being without lawful authority may be declared of no legal effect and the
previous Notification No.PF.007/DA/Phy/IH, dated 23-11-1994, be declared still
operative and fully applicable. It is further prayed that the respondents be directed
to place the petitioner in the same grade and position as she was holding before
passing of impugned Notification as per original seniority list circulated
(Annexure VI). Any other relief considered appropriate in the circumstances of
the case may also kindly be granted.

8. Perusal from the prayer as framed and worded, it appears that the respondent has
sought determination of her seniority for promotion to Grade-19. Primarily, the dispute of
seniority raised by the petitioner in her writ petition relates to the terms and conditions
for her service, therefore, the learned Judge in Chamber, was not supposed to entertain
and adjudicate the matter, due to the bar contained under Article 212 of the Constitution
of Islamic Republic of Pakistan. Reference may be had to Khalid Mehmood Watoo v.
Government of Punjab 1998 SCMR 2280. In another case titled as Asad Ullah Rashid v.
Haji Muhammad Muneer and others 1998 SCMR 2129 it was held that the orders passed
by the competent authority, even if mala fide, ultra vires or coram non judice, falls within

Page No. 3 of 4
the ambit of Service Tribunal and jurisdiction of Civil Court including the High Court is
ipso facto ousted, in view of the provisions of Article 212 of the Constitution of Pakistan.

9. With a view to appreciate the case on merit it appears appropriate to examine the facts
of the case. The respondent was posted on deputation in the PIMS on 1-2-1992.
Therefore, vide Notification dated 24-11-1994 she was permanently absorbed. The
Notification No.PF.007-D/A.Phy/IH, dated 24-11-1994 of absorption annexed with the
writ petition is reproduced below:--

"Consequent upon Prime Minister's directive vide Principal Secretary to Prime


Minister letter No.8824/PSPM/94, dated 22-11-1994 Dr. Nighat Bilal presently
working on deputation basis in BPS-18 against the post of Associate Clinical
Psychologist is absorbed in PIMS on the post of Physician (General Medicine)
BPS-19 with immediate effect.

(Dr. Asif Mehmood),


Deputy Executive Director."

The appellant joined PIMS as Medical Officer in April, 1986: Thereafter, he passed FPSC
examination in October, 1989. He was promoted to BS-18 on 13-9-1992. During the
period the respondent was on deputation with the PIMS for a period of three years.
Apparently the appellant was senior most Physicians in the department and the
respondent could not sit over his head being on deputation with the department by
securing orders through back doors. Her appointment to a higher post was contrary to the
prescribed method under Civil Servant Act, 1973 and the policy governing appointments
on deputation to the Federal Government. The basic principles enunciated in the policy at
Serial No.26-30 and 33 at page No.375-389 and 397-396 of ESTACOD, 2000 are as
under:--

(1) There should be vacant post in the cadre to which appointment is sought to be
made on deputation.

(2) Posting on deputation should not interfere with the service interests of those
already employed in the cadre.

(3) The deputation can be absorbed if Service Rules provide for absorption.

(4) Deputationist counts his seniority from the date of absorption i.e. regular
appointment to the cadre.

In the instant case, the whole process of appointment on deputation was flawed and the
respondent was absorbed in BPS-19 on the basis of direction issued by the Prime
Minister Secretariat without considering appellants case at all.

10. For what has been discussed above, we are of the view that the relief granted through
constitutional petition is not sustainable. Therefore, we allow this appeal, set aside the
impugned order passed in writ petition, and accept this appeal with no orders as to costs.

S.A.K./J-34/Isl. Appeal accepted.

Page No. 4 of 4
2008 P L C (C.S.) 1148

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Ashique Hussain Memon,
Member-I and Qabool Ahmed Shaikh, Member-II

Kazi JAN MUHAMMAD

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh, Karachi


and 15 others

Appeal No.95 of 2004, decided on 24th May, 2007.

Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975---

----R. 12(a)(b)---Sindh Service Tribunals Act (XV of 1973), S.4---Seniority, claim for---
Appeal---Appellant had filed appeal against notification cancelling earlier notification
whereby appellant was allowed seniority in the rank of Assistant Commissioner---
Appellant, who was selected in information group, joined Civil Service Academy in
1984---Appellant's services were placed on deputation at the disposal of Government of
Sindh in 1994 and subsequently he was appointed by transfer as Assistant Commissioner
and was assigned seniority in the said cadre w.e.f. 20-10-1996---Appellant on his request
was allowed seniority w.e.f. 18-11-1984, the date when he joined the Federal Government
vide notification in terms of R.12(a) of Sindh Civil Servants (Probation, Confirmation
and Seniority) Rules, 1975---Immediately thereafter, on receipt of large number of
representations from affected persons, said notification was cancelled/withdrawn vide
impugned notification---Record showed that induction of appellant in Sindh Government
was at his own request---Case of appellant, in circumstances, would fall under R.12(b) of
Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 and his
seniority would count from the date of his permanent absorption in Sindh Government
and appellant was not entitled to the benefit of R.12(a) of the Rules---Contention of
appellant that he having not been provided chance of hearing, principles of natural justice
were violated, was repelled; firstly when he was appointed/inducted by transfer in Sindh
Government in 1996 none of other officers was provided a chance of personal hearing;
secondly, appellant was in full knowledge that he, by concealment of facts and through
underground method, had succeeded in getting favourable notification issued in his
favour---Rights which had been acquired in an illegal manner, could not be termed to be
vested rights to attract the rule of locus poenitentiae---Appellant otherwise having not
impleaded a large number of officers who were necessary parties, appeal filed by him
was not properly filed, and thus, was liable to be dismissed on such ground.

PLD 1969 SC 407; 1994 SCMR 2232; 1997 SCMR 15; 2005 SCMR 678; Nazir Ahmed
Panhwar v. Government of Sindh and others 2005 SCMR 1814; Engineer-in-Chief v.
Jalaluddin PLD 1992 SC 207; Ardeshir Cowasjee v. K.B.C.A. 1999 SCMR 2883; Abdul
Haque Indhar v. Province of Sindh and others 2000 SCMR 907; Muhammad Hussain
Shaikh v. University of Sindh and others 2002 PLC (C.S.) 696 and Manzoor Ahmed v.
Muhammad Sabir 2001 PLC (C.S.) 50 ref.

Shabir Ahmed Awan for Appellant.

Manzoor Ali Khan and Mirza Saeed Baig for Private Respondents.

Mrs. Tabasum Ghazanfar, Asstt. A.-G. for Official Respondents.

Date of hearing: 20th April, 2007.

JUDGMENT

JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).---This appeal is

Page No. 1 of 5
directed against the notification, dated 27-1-2004 cancelling the earlier Notification dated
11-11-2003 whereby A appellant was allowed seniority in the rank of Assistant
Commissioner from 18-11-1984 in terms of Rule 12(a) of the Sindh Civil Servants
(Probation, Confirmation and Seniority) Rules, 1975.

2. Relevant facts for the purpose of disposal of the instant appeal are that appellant after
being declared successful in competitive examination conducted by the Federal Public
Service Commission was selected in Information Group. He joined Civil Service
Academy in November, 1984. However, in the year 1994, appellant's services were
placed on deputation at the disposal of Government of Sindh. Subsequent thereto, on a
D.O. letter of the then Chief Minister, Sindh appellant was appointed by transfer as
Assistant Commissioner (B-17) in Sindh Government vide Notification dated 20-10-1996
and he was assigned seniority in said cadre w.e.f. 20-10-1996. Appellant thereafter,
submitted an application to the then Chief Minister, Sindh, requesting for allowing
seniority in the cadre of Assistant Commissioner w.e.f. 18-11-1984, i.e. the date when he
joined the Federal Government. His such request was acceded to and vide Notification,
dated 11-11-2003 he was allowed seniority in terms of Rule 12(a) of the Sindh Civil
Servants (Probation, Confirmation and Seniority) Rules, 1975, w.e.f. 18-11-1984.
Immediately, thereafter on receipt of large number of representations from affected
persons, the Notification dated 11-11-2003 was cancelled/withdrawn vide impugned
notification, dated 27-1-2004. Feeling aggrieved, appellant after availing departmental
remedy by filing review petition to the Chief Minister, Sindh, which remained
unresponded has invoked the jurisdiction of this Tribunal.

3. During pendency of appeal, the private respondents Nos.5 to 16 moved separate


applications for joining them as respondents, which by separate orders dated 1-6-2005
and 7-11-2006 were allowed. In pursuance thereof, appellant has filed amended memo. of
appeal impleading the intervenors as respondents.

4. In support of appeal, learned counsel for the, appellant mainly contended that
appellant's permanent absorption in Sindh Government as Assistant Commissioner was
made on the basis of a D.O. letter of the then Chief Minister, Sindh coupled with No
Objection Certificate given by Establishment Division, Government of Pakistan and that
since appellant's appointment by transfer was made otherwise than on his own request he
was legally and lawfully entitled to the benefit of his past regular service for the purpose
of determining his seniority in terms of Rule 12(a) of Sindh Civil Servants (Probation,
Confirmation and Seniority) Rules, 1975, which was rightly allowed to him vide
notification, dated 11-11-2003. However, certain interested elements by
misrepresentation of facts moved false and fabricated applications to the competent
Authority for withdrawal of Notification dated 11-11-2003 and the competent Authority
without going through the relevant record and without affording chance of hearing to the
appellant cancelled/withdrew the said notification through the impugned Notification,
dated 27-1-2004, which on the face of it is illegal, ultra vires against the mandatory
provisions of law and principles of natural justice and thus, not sustainable. Learned
counsel added that the Notification dated 11-11-2003 was legally acted
upon/implemented and a valuable legal vested right was accrued to appellant, which
under the principles of locus poenitentiae cannot be withdrawn. In support of his
contention, learned counsel has relied upon (1) PLD 1969 SC 407, (2) 1994 SCMR 2232,
(3) 1997 SCMR 15, (4) 2005 SCMR 678 and unreported judgment passed in Appeal
No.56 of 2000 (M. Jaffar Abbasi v. Government of Sindh and others), dated 21-6-2006 by
this Tribunal.

5. Conversely, learned counsel for private respondents and learned Assistant Advocate-
General for official respondents while referring the summary floated to the then Chief
Minister, Sindh, for appellant's induction in PCS-Executive Cadre in the Sindh
Government, have argued that it is recorded fact that appellant's induction in Sindh
Government was at his own request, therefore, his case falls under Rule 12(b) of the
Sindh Civil Servants (Prohibition, Confirmation and Seniority) Rules, 1975, and his
seniority would count from the date of his permanent absorption in Sindh Government.
Further, they contended that appellant by concealment of material facts succeeded in
getting benefit of Rule 12(a) of Rules of 1975, vide Notification, dated 11-11-2003,
however, when the true facts were brought to the notice of the competent authority, the

Page No. 2 of 5
.Notification, dated 11-11-2003 was withdrawn/cancelled vide impugned Notification,
dated 27-1-2004 and that under section 21 of General Clauses Act, the Government
was/is competent to vary, amend or rescind any notification, order, rule or bye-laws at
any time. While referring two unreported judgments passed in Appeal No.274 of 1999
(Nisar Ahmed Shaikh v. Government of Sindh and others) dated 19-8-2005 and Appeals
Nos.123-155 of 1998 (Mst. Sofia Shahabuddin Abro v. Government of Sindh and. others)
dated 23-12-2005, it has been contended that this Tribunal has already decided that civil
servants appointed by transfer on their own request are not entitled to benefit of his past
regular services.

6. While exercising right of reply, learned counsel for appellant contended that no such
application said to have been submitted by appellant for his induction in Sindh
Government has been produced by the respondents, which supports the plea of appellant
that he had never moved such application but his induction was otherwise than on his
own request.

7. We have carefully considered the above submissions minutely perused the case papers
and have gone through the case-law referred to by the parties counsel.

8. Appellant Kazi Jan Muhammad an officer of Information Group (BPS-17) whose


services lent on deputation in Sindh Government was initially posted as Public Relation
Officer to Chief Minister and subsequently he was allowed to work as Press Secretary to
Chief Minister Sindh in addition to his own duties. As it appears, on the request of
appellant, a D.O. letter, dated 19-3-1995 was written to Federal Government for his
induction into PCS Executive Cadre without reference to Sindh Public Service
Commission. On that a summary dated 30-3-1995 by Chief Secretary, Sindh was floated
to the then Chief Minister, Sindh wherein appellant's induction in Sindh Government was
highly resisted. Paras.6 and 7 of the said summary being very relevant are reproduced
hereinbelow:

"(6) It is pertinent to point out that the Supreme Court of Pakistan in the decision
of Human Rights Case No.104 of 1992 have held the appointment made without
observing proper procedure is violation of fundamental Human Rights. Even the
request of Dr. Kazi cannot be considered for his appointment as Assistant
Commissioner in BPS-17 due to non-availability of PCS Cadre (BPS-17) posts, as
A.Cs. are already working in excess and beyond the sanctioned strength which is
also violation of the rules. Besides, he being an employee of Federal Government
cannot be considered for appointment to any post in the control of Province
without the prior approval of Federal Government (Establishment Division).

(7) With the above position as per rules in view, the request of Dr. Kazi is not
tenable and he cannot be absorbed in any of the provincial service including that
of the PCS Cadre (BPS-18), as he does not come within the ambit of a civil
servant in terms of definition provided by the Act. On the other hand while
submitting the position about the absorption made earlier/now being challenged, it
has already been proposed to the Chief Minister not to entertain such
appointments in future."

The said summary at the first instance was ordered to be kept pending. However, once
again at the request of appellant for his induction in PCS Cadre, an office note was
prepared and marked to S.O.(V), who prepared draft summary, which was floated to the
Chief Secretary on 25-6-1996 and after discussion it was ordered that it may be put up
after two weeks. Again on 25-7-2006 the summary for Chief Minister, Sindh was
prepared. The very first para. of the same reads as under:--

"The Chief Minister, Sindh, may kindly refer to the summary earlier floated by
this Department regarding the induction of Kazi Jan Muhammad in PCS Cadre
(Annexure "A"). Now Kazi Jan Muhammad has again requested for his induction
in PCS Executive Cadre (Annexure "B").

It may be stated that Service and General Administration Department, vehemently


opposed appellant's induction in Executive PCS Cadre, being in violation of rules. The

Page No. 3 of 5
Chief Minister, Sindh, however, allowed appellant's induction as Assistant Commissioner
in Executive PCS Cadre. In any case, from the simple perusal of above two referred
summaries floated to the then Chief Minister, Sindh, it is crystal clear that appellant's
induction in Sindh Government was made at his own request. Annexure "B" is the proof
of same, which was an application of appellant requesting therein for his induction in
PCS Executive Cadre. However, as it appears, the appellant being the beneficiary in
collusion with some lower staff succeeded in removing the same from the file and then
started claiming seniority.

9. After almost 7 years, appellant moved an application for assigning him seniority w.e.f.
18-11-1984 in terms of Rule 12(a) of Sindh Civil Servants (Probation, Confirmation and
Seniority) Rules, 1975. A summary to the effect was floated to the then Chief Minister
Sindh, on 14-10-2003 supporting appellant's case for assigning him seniority w.e.f. 18-
11-1984. The said summary was approved on 4-11-2003 and in compliance thereof,
Notification, dated 11-11-2003 was issued in favour of appellant. After issuance of said
notification a large number of officers of Executive PCS Cadre showed their resentment
and filed representations, wherein it was pointed out that appellant had concealed certain
facts and could not point out that his appointment by transfer in Executive PCS Cadre
was on the basis of his own written request. On that the record of the department was
scrutinized and it transpired that appellant's appointment by transfer was on his own
written request, therefore, he was not entitled to the benefit of Rule 12(a) but his case was
covered under Rule 12(b) of the Rules of 1975. Such summary was then floated to the
Chief Minister, Sindh, who accorded necessary approval and the Notification, dated 11-
11-2003 was withdrawn/ cancelled vide impugned notification, dated 27-1-2004.

10. It is pertinent to state that appellant's complete silence for almost 7 years in claiming
benefit of Rule 12(a), by itself is a proof that his induction in PCS Cadre was at his own
request, otherwise, he could not have remained quiet and mum for such a long period of 7
years, during which several seniority lists were issued, where he was shown junior to the
above private respondents and many others not intentionally joined by appellant as a
party in the instant appeal.

11. In view of the above recorded facts, since appellant's appointment by transfer in
Executive PCS Cadre was made on his own request, he was, therefore, not entitled to the
benefit of Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority)
Rules, 1975.

12. Contention that before rescinding/cancelling the notification, dated 11-11-2003


appellant was not provided chance of hearing, thus, the principles of natural justice were
violated, had no force. It may be stated that at the time of appellant's induction in
Executive PCS Cadre in 1996 so also at the time of allowing him benefit of Rule 12(a),
none of other officers of Executive PCS Cadre was provided a chance of personal
hearing. Moreso, appellant was in full knowledge that he by concealment of material
facts and through underground method had succeeded in getting favourable notification
issued in his favour, therefore, it was not necessary to provide him a chance of personal
hearing before rescinding the same. In this regard reference is invited to a case of Nazir
Ahmed Panhwar v. Government of Sindh and others 2005 SMR 1814, wherein the
Honourable, Supreme Court while maintaining the judgment of this Tribunal and
referring the bunch of case-law on the point, has observed that: ---

"Right of personal hearing to a person against whom an adverse order is to be


made to be equated with fundamental right and an adverse order made without
affording him an opportunity of personal hearing is to be treated as a void order
application of said principle and its limitations. Where the person against whom
an adverse order is made has acted illegally and in violation of law for obtaining
illegal gains and benefits through an order obtained with mala fide intention,
influence, pressure and ulterior motive then the authority would be competent to.
rescind/withdraw/cancel such order without affording an opportunity of personal
hearing to the affected party. Said principle though was always deemed to be
embedded in the statute and even if there was no such specific or express
provision it would be deemed to be one of the parts of the statute because no
adverse action can be taken against a person without providing right of hearing to

Page No. 4 of 5
him. Principle of audi alterum partem at the same time could not be treated to be
of universal nature because before invoking/applying the said principle one had to
specify that the person against whom action was contemplated to be taken prima
facie had a vested right to defend the action and in those cases where the claimant
had no basis or entitlement in his favour he would not be entitled for protection of
the principles of natural justice. "

13. So far applicability of principle of locus poenitentiae, as pressed by learned counsel


for the appellant is concerned it has repeatedly been held by our superior Courts that the
rights, which have been acquired in an illegal manner, cannot be termed to be vested
rights to attract the rule of locus poententiae. Beside, this rule will not be applicable in the
cases in which the basic order is illegal. In a case of Engineer-in-Chief v. Jalaluddin PLD
1992 SC 207, it was observed that; if the order is illegal then perpetual rights cannot be
gained on the basis of an illegal order. Similar was the view taken in the cases of Ardeshir
Cowasjee v. K.B.C.A. 1999 SCMR 2883, Abdul Haque Indhar v. Province of Sindh and
others 2000 SCMR 907 and Muhammad Hussain Shaikh v. University of Sindh and
others 2002 PLC (C.S.) 696.

14. It may be stated that in a summary floated to the Chief Minister Sindh, the Chief
Secretary, Sindh vehemently opposed appellant's induction in PCS Executive Cadre, as
there was no provision for direct recruitment to these posts. Besides Rule 5 of the Sindh
Public Service Commission Rules, 1975 applied on the posts meant for direct
recruitment. Moreover, there was no post available in PCS Cadre at that time rather A.Cs.
were already working in excess and beyond the sanctioned strength. It is thus, clear from
the perusal of said summary that neither there was any dearth of experienced persons nor
his services were required in exigencies of public interest. It is also doubtful whether the
services of the appellant were essentially required for his absorption to PCS Executive
Cadre from the Federal Government or he possessed exceptional and extraordinary
qualities.

15. It is worthwhile to mention here that appellant has not impleaded a large number of
officers of Executive PCS Cadre who were necessary party, therefore, appeal filed
without impleading necessary parties is not properly constituted and liable to dismissal on
that such ground. Reference is invited to the case of Manzoor Ahmed v. Muhammad
Sabir 2001 PLC (C.S.) 50 and Muzaffar Hussain Khan v. Raja Hashmat Ali Khan and
others, decided by Honourable Supreme Court of Azad Jammu and Kashmir, 2004 PLC
(C.S.) 1117.

16. For the aforesaid reasons, the appeal being devoid of merits and not maintainable is
hereby dismissed. Parties are left to bear their own costs.

17. Announced in open Court.

H.B.T./14/SST Appeal dismissed.

Page No. 5 of 5
2007 SCMR 1442

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

CHIEF EXECUTIVE, AYUB MEDICAL INSTITUTION, ABBOTTABAD and


another----Petitioners

Versus

Dr. WAQAR-UR-REHMAN QURESHI and 3 others----Respondents

Civil Petition No.233 of 2007, decided on 26th March, 2007.

(On appeal from the judgment, dated 1-12-2006 of the Peshawar High Court,
Abbottabad Bench in Writ Petition No.339 of 2005).

North West Frontier Province Medical Institutions Rules, 2001---

----R. 10---Constitution of Pakistan (1973), Art. 185(3)---Repatriation to parent


department---Probation period---Deputation abroad---Respondent was lecturer in.
Khyber College of Dentistry and on 21-8-2000, he was provisionally appointed as
Assistant Professor Dentistry in Ayub Medical College---Respondent was to undergo
probation for a period of two years, which could be extended for another one
year---On 11-1-2002, respondent availed ex-Pakistan leave without pay for a
period of 730 days and went abroad but on 27-7-2002, Authorities of Ayub
Medical College repatriated him to his parent department---Such act of the
Authorities was set aside by High Court in exercise of Constitutional jurisdiction---
Validity---No provision existed in law that period of probation could either be
suspended or postponed or extended beyond the period of three years---
Respondent was employee of Ayub Medical College, on completion of his three
years of service, his deputation abroad was allowed by Ayub Medical College and no
fault or default of respondent was found during the period of first three years of his
service---Government employees already posted to Institution, under R.10 (1) of
North West Frontier Province Medical Institutions Rules, 2001, would continue to
work as civil servants till retirement, if they had not opted for absorption in service
of the Institution---Before termination of service of respondent with Ayub Medical
College and his repatriation to Government of North West Frontier Province, it was
incumbent upon the Authorities to hold 911 inquiry to ascertain the fault, if
any, committed by respondent---On the contrary, entire action was taken
unilaterally without affording any opportunity of being heard which was not only
against the principles of natural justice but also against the settled norms of
service laws/rules prescribed for all Institutions of same nature through North West
Frontier Province Medical Institutions Rules, 2001---Judgment passed by High
Court was based on valid and sound reasons and was entirely in consonance with the
law laid down by Supreme Court---Neither there was any misreading nor non-
reading of material evidence or misconstruction of facts and law---Leave to appeal
was refused.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 26th March, 2007.

JUDGMENT

ABDUL HAMEED DOGAR, J.--- Petitioners seek leave to appeal against the
judgment, dated 8-8-2003 passed by a learned Division Bench of the Peshawar High
Court, Abbottabad Bench, whereby Writ Petition No.339 of 2005' filed by
respondent No.1 was allowed by declaring the notification dated 10-8-1987

Page No. 1 of 3
issued by Health and Social Welfare Department, Government of N.-W.F.P. being
without lawful authority and against the law and rules on the subject.

2. Briefly, stated the facts giving rise to the filing of the instant petition are
that on 17-1-1987 respondent No.1 was appointed as Lecturer in Khyber College
of Dentistry. In the meanwhile in Dentistry Department of Ayub Medical College,
Abbottabad, a post of Assistant Professor was advertised in the newspapers. He
applied through proper channel for the same and was provisionally appointed as
Assistant Professor Dentistry in BPS-18 vide office order dated F.7-7-200-
Estt/1064-59, dated 21-8-2000. He was to undergo a period of probation for a
period of two years and in case no letter was issued after the expiry of two years,
the probation period would be considered as extended for another year and on
completion of the probation or extended period of probation, the respondent No.1
would be treated as a regular employee of the College. The Principal of the Ayub
Medical College also issued office order on 18-8-2000 wherein it was specifically
mentioned that in continuation of office order of Assistant Professor Dentistry
issued on 16-8-2000, respondent No.1 was designated as Assistant Professor Oral
Surgery. On 15-11-2001 Overseas Employment Corporation asked the Principal
Ayub Medical College, Abbottabad to relieve respondent No.1 on the ground that
he was selected and his visa was endorsed. The Principal Ayub Medical
College vide notification dated 11-1-2002 granted 730 days Ex-Pakistan leave
without pay from the date of availing to respondent No.1 and that the Institution
had no objection on his proceeding to Saudi Arabia to join his new assignment
and on expiry of leave, he would have to complete the remaining probation period. The
Chief Executive, Ayub Medical Institution, Abbottabad, vide order, dated 27-7-
2002 repatriated the respondent to his parent department i.e. Khyber College of
Dentistry. Feeling aggrieved, respondent challenged the aforesaid order before the
learned High Court which was allowed, vide judgment, dated 1-12-2006.

3. We have heard Mr. Muhammad Munir Peracha, learned Advocate Supreme


Court for the petitioners and have gone through the record and the proceedings of the
case in minute particulars.

4. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for the
petitioner vehemently contended that the impugned judgment suffers from
legal defect and is not sustainable in law. According to him the learned High
Court wrongly assumed that the respondent was a regular employee of Ayub
Medical College, Abbottabad. He contended that the learned High Court did not
consider the case properly and misinterpreted the provisions of N.-W.F.P.
Medical Health Institutions and Regulation of Health Care Services Ordinance,
2002 as well as the Medical Institutions Rules, 2001. According to him
respondent was on probation when his services were repatriated to his parent
department and it is a settled law that unless the letter of confirmation is issued, the
period of probation shall be deemed to have been extended for another period of
one year. He contented that as the 'order of repatriation having been made within
the probation period, therefore the respondent was no more employee of the
Ayub Medical College.

5. The real controversy in this case is whether the respondent was an employee of
Ayub Medical College or of Government of N.-W.F.P. through Health
Department or Khyber College of Dentistry. It is admitted fact that the
respondent was provisionally appointed as Assistant Professor Dentistry in
BPS-18 and he was to undergo a period of probation for two years and in case no
letter was issued after the expiry of two years, the probation period would be
considered as extended for another year and on completion of the probation'
or extended period of probation, the respondent would be treated as a regular
employee of the College. It is pertinent to mention here that Office Order dated
18-8-2000 issued by the Ayub Medical College specifically mentions that in
continuation of Office Order of Assistant Professor Dentistry issued on 16-8-2000,
respondent No.1 was allowed the speciality as Assistant Professor Oral Surgery.
Even in the certificate dated 30-1-2001 issued by the Principal Ayub Medical
College it was clearly mentioned that the respondent was a regular employee of

Page No. 2 of 3
Ayub Medical College since 23-9-2000 and the Institution had no objection for applying
to Overseas Employees Corporation for the post of Consultant if Oral Surgery in
Kingdom of Saudi Arabia. The respondent was elected by Overseas Employment
Corporation and was relieved on 7-11-2001. A Notification dated 11-1-2002 was
also issued by the Principal, Ayub Medical College indicating therein that the
competent authority was pleased to grant 730 days Ex-Pakistan leave without pay
from the date of availing to the respondent and the Institution had no objection to
go to Saudi Arabia to assume his new job and on expiry of leave, he would have
complete the remaining probation period, There is no provision in the law that
period of probation could either be suspended or postponed or extended
beyond the period of three years. Admittedly the respondent was the employee of
Ayub Medical College on completion of his three years of service, his deputation
abroad was allowed by the Ayub Medical College and no fault or default of the
respondent was found during the period of first three years of his service.
Rule 10(1) provides that the Government employees already posted to the
Institution shall continue to work as civil servants till retirement, if they do
not opt for absorption in the service of the Institution. The respondent had
retained a lien as lecturer in College of Dentistry, during the period of probation.
Ex-Pakistan leave and No Objection Certificate for contract service in Saudi Arabia
were granted to him by the Principal Ayub Medical College and it was
specifically mentioned that the competent authority had granted 730 days Ex-
Pakistan leave without pay to respondent No.1. He had no other alternate except
to presume that the Principal was representing the competent authority a n d t h e
s a n c t i o n o f t h e c o m p e t e n t a u t h o r i t y w a s c o r r e c t l y conveyed to him by
the Principal. The petitioner did not have the a u t h o r i t y t o u n i l a t e r a l l y
r e p a t r i a t e t h e r e s p o n d e n t t o t h e Government of the N.-W.F.P. Before
termination of service of respondent No.1 with petitioners and his repatriation
to Government of N.-W.F.P., it was incumbent upon them to hold an inquiry to
ascertain the fault, if any, committed by respondent No.1. On the contrary, the
entire action was taken unilaterally without affording any opportunity of being heard
which is not only against the principles of natural justice but also against the settled
norms of service' laws/rules prescribed for all Institutions of same nature through
the N.-W.F.P. Medical Institutions Rules, 2001.

6. For what has been discussed above, we are of the considered opinion that the
impugned judgment is based on valid and sound reasons and is entirely in
consonance with the law laid down by this Court. Neither, there is misreading, nor
non-reading of material evidence, or misconstruction of facts and law.

7. Resultantly, the petition being devoid of force is dismissed and leave to appeal
refused.

M.H./C-21/SC Petition dismissed.

Page No. 3 of 3
2007 P L C (C.S.) 49

[Lahore High Court]

Before Sayed Zahid Hussain, J

MUHAMMAD SHAFIQUE

Versus

CHAIRMAN BOARD OF GOVERNORS, LAHORE MUSEUM/CHIEF


SECRETARY PUNJAB, LAHORE and another

Writ Petitions Nos.8543 of 2006 and 12846 of 2005, decided on 8th November, 2006.

(a) Lahore Museum Regulations, 1987---

----Rr. 9 & 10---Punjab Civil Servants (Appointment and Conditions of

Service) Rules, 1974, R.15(2)---Constitution of Pakistan (1973), Art.199---Constitutional


petition---Post of Superintendent (BS-16)---Appointment of deputationist (BS-7) against
post of Superintendent though not possessing requisite qualification and then his
subsequent absorption against such post on permanent basis---Repatriation of petitioner
(deputationist) to parent department after recalling order of his appointment and
absorption against such post being contrary to law---Validity---Post of Superintendent
was primarily a promotion post and for such appointment a Bachelor Degree from a
recognized University with at least five years experience was required---Petitioner was
only intermediate---Petitioner's appointment was violative of Government policy,
according to which a civil servant could not be considered for deputation against a higher
post in borrowing department, unless he was due for promotion in parent department---
Selection Committee considering absorption of petitioner was legally constituted---
Impugned order was legal---High Court dismissed constitutional petition in
circumstances.

Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 PLC (C.S.) 1328; Dr.
Azim-ur-Rehrnan Khan Meo v. Government of Sindh and another 2004 SCMR 1299;
Prof. Muhammad Wali Khan and another v. Secretary, Government of Sindh and others
2003 MLD 719.; Muhammad Rafique and 2 others v. Muhammad Pervaiz and 2 others
2005 SCMR 1829 and Province of Punjab through Secretary, Agriculture, Government of
Punjab and others v. Zulfiqar Ali 2006 SCMR 678 ref.

(b) Civil service---

----Promotion of deputationist against a higher post in borrowing department---Scope---


Unless deputationist was due for promotion in parent department, he could not be
considered against a higher post borrowing department.

(c) Civil service---

----Past instances of erratic appointments could not be made a precedent to be followed


for all times to come in future---No argument of discrimination could be built on such
basis.

(d) Practice and procedure---

----Mistake, if committed in past and not pointed out or assailed, could not be allowed to
become a precedent and perpetuated.

Ch. Nazir Ahmad Kamboh for Petitioner.

Aamir Rehman, Addl. A.-G., Punjab with Ibrar Aalam, S.O.(E), Information Department
and Abid Saeed, Deputy Secretary Information Department and Muhammad Navid

Page No. 1 of 5
Shabir Goraya for Respondents.

Date of hearing: 8th November, 200 6.

JUDGMENT

SAYED ZAHID HUSSAIN, J.---Writ Petition No.12846 of 2005 in the nature of quo
warranto was filed by Muhammad Shafique against Muhammad Shafique Bajwa,
respondent No.4, that "he is not eligible to hold the post against which h e is now
working and the respondents Nos.1 and 2 be directed to withdraw the absorption order,
dated 30-6-2003 as well as deputation of the respondent No.4". The post which
Muhammad Shafique Bajwa, respondent No.4 therein., is holding is that of
Superintendent (BS-16), Lahore Museum, Lahore.

2. It may be mentioned that Muhammad Shafique Bajwa was Accounts Clerk (BS-7) in
Government High School, Mandi Kalay Ki, District Hafizabad who was taken on
deputation as Superintendent in (BS-16) in the Lahore Museum and was absorbed in that
post subsequently. The interim orders passed in that petition by Honourable Mr. Justice
Syed Jamshed Ali (as his Lordship then was) took note of the salient features of the case.
The admitting order, dated 12-9-2005 which I must say so with respect is quite elaborate
and reads as follows:---

"According to Lahore Museum Regulations, 1987 the post of Superintendent is


primarily, a promotion post for which the Assistants, Store-Keepers and
Accountants of the Lahore Museum are eligible. In case no suitable incumbent is
available then it could be filled by initial recruitment or by transfer. In this case
respondent No.4, an official of the Education Department in District Hafizabad in
grade-7, was appointed as Superintendent (BS-16) and later absorbed in the
service of the Lahore Museum. This writ petition has laid information before this
Court in the nature of quo warranto.

(2) I have some reservations about the conduct of the then Director, Lahore
Museum (Dr. Liaqat Ali Niazi) in whose tenure the disputed appointment was
made. He is presently Secretary Archive S&GAD. He was accordingly summoned
by me to clear doubt. I had entertained about his conduct.

(3) The first reservation was that respondent No.4 does not possess the requisite
qualification of B.A. necessary for appointment to the post of Superintendent,
even by transfer, yet he was appointed to the post in question. His reply was that
the Director was competent to relax the rules. It may be observed at this stage that
power to relax the rules should be exercised to remove hardship rather than to
dole out a favour in the matter of public employment. I also questioned him
whether before making the appointment in question any of the officials of the
department of the eligible category was considered. His reply was in the
negative. The original file has been perused. It was on the application dated 25-
2-2003 of respondent No.4 that Dr. Liaqat Ali Niazi passed an order "allowed to
join on deputation as Office Superintendent in BS-16". This order was passed
without consulting the Selection Committee and without following the
deputation policy of the Government of the Punjab. Respondent No.4 then
applied on 21-6-2003 for his absorption in BS-16 in the Lahore Museum on
which the Standing Committee considered the case on 28-6-2003. It comprised
Dr. Liaqat Ali Khan Niazi, Director (Chairman), Waseem Ahmad, Senior
Chemist (Member), Humera Alam (Member) and Abdul Rehman Khan Lodhi,
Assistant Director (Member). Photo copy of the minutes of the meeting was
produced before the Court by the learned counsel. However, these are not on the
original record. When confronted Dr: Liaqat Ali Niazi took up the position that
it was a forged document. Instead, on the record are the minutes of the meeting
of 28-6-2003 signed by Dr. Liaqat Ali Khan Niazi, Abdul Rehman Khan Lodhi,
Prof. Ijaz Butt and Mr. Shafqat Jalil, Deputy Secretary IC&YA Department.

(4) I could, however, see an order passed by Mr. Niazi on 3-7-2003 according to
which the accounts branch of the Lahore Museum was badly suffering in the

Page No. 2 of 5
absence of competent official, accordingly, the requisite qualification was
relaxed and respondent No.4 was found to be a suitable person. It was, however,
posterior to the meeting held on 28-6-2003. There are certain principles for the
exercise of discretion which have to be kept in view. I am constrained to observe
that prima facie he has acted in the matter clearly contrary to law and in an
irresponsible manner, perhaps assuming that the public employment is the
bounty of the State or its functionaries.

(5) Mr. Shafqat Jalil, the then Deputy Secretary (Adorn.) Information and
Culture Affairs Department of the Government of the Punjab now as Additional
Press Secretary in the Prime Minister's House is in attendance. He was shown
his signatures on the minutes of the meeting dated 28-6-2003 available on the
original record. He stated that the document bears his signatures.

(6) Prima facie respondent No.4 was not eligible for the post in question and on
the date of the meeting of the Selection Committee (28-6-2003) no order of
relaxation in his favour was in existence. Even if there was one, unless it was
found that no incumbent of the department was suitable for the said post it could
not have been filled in by transfer. The matter, therefore, requires consideration.

(7) Admit. Notice.

(8) I have noted with regret that Mr. Shafqat Jalil representing the Government
of the Punjab, did not even bother to find out whether respondent No.1 was at
all eligible to be appointed as Superintendent (BS-16). It appears that he acted
only as a rubber stamp to the decision taken by Dr. Liaqat Ali Niazi. Besides the
judicial determination by this Court it is a matter to be inquired into on the
administrative side whether the minutes of the meeting held on 28-6-2003 on the
original record is genuine document in view of the photo copy of the minutes of
the meeting dated 28-6-2003 in which neither Mr. Shafqat Jalil nor Prof. Ijaz
Butt was shown to be present. The conduct of Mr. Niazi in making appointment
of a Grade-7 officer to Grade-16 post, prima facie contrary to law, is also
required to be inquired into.

(9) A copy of this order along with the copies of the minutes of the meeting
dated 28-6-2003 shall be sent to the Chief Secretary, Punjab for an inquiry into
the matter. He will report action taken in the matter to the Additional Registrar
of this Court.

Civil Miscellaneous No.2 of 2005

(10) I am not inclined to suspend the order of appointment of respondent No.4


because it will amount to giving main relief and may also disrupt the working of
the department. It is, however, directed that the main petition shall be listed for
hearing in the month of October, 2005."

3. In view of the, above observations the matter was considered on administrative side
and it was pointed by the Regulation Wing S&GA Department that "the Regulation
Wing, is of the view that deputation of Mr. Shafique Bajwa, Accounts Clerk (BS-7)
against the post of Superintendent BS-16 and his subsequent absorption against the said
post is improper and it is proposed that:

"(i) Mr. Muhammad Shafique Bajwa, Accounts Clerk (BS-7) may be repatriated
to his parent department after serving him with a notice about the proposed
action and after passing a speaking order to this effect.

(ii) The post of Superintendent (BS-16), Lahore Museum, may be filled through
promotion and if no one suitable is available then by initial recruitment or by
transfer from other departments as provided under the service rules for the post;

(iii) Since, the matter stands thrashed/scrutinized" threadbare and does not
warrant any further inquiry, the Honourable Lahore High Court may be informed

Page No. 3 of 5
accordingly in pursuance of its directions given to the Chief Secretary referred to
in para. 16(vi)/ante. "

4. When the matter was placed before the Chief Secretary, Punjab, The Chairman, Board
of Governors, Lahore Museum Lahore, the same was approved. As a result, order, dated
17-7-2006 was conveyed to the Director Lahore Museum, Lahore that "the Chief
Secretary/Chairman Board of Governor's Lahore Museum has approved the proposal of
repatriation of Mr. Shafiq Bajwa, Superintendent, Lahore Museum to Education
Department". This order has been assailed by Mr. Muhammad Shafique Bajwa through
this petition.

5. Order, dated 17-7-2006 was, however, not implemented in view of the pendency of
Writ Petition No.12846 of 2005. The matter was again considered on administrative side
and this time the Law Department was also consulted. On consideration of relevant rules
and regulations i.e. the rule 15(2) of the Punjab Civil Servants (Appointment and
Conditions of Service) Rules, 1974 and Lahore Museum Regulations, 1987, the Secretary
Law, Government of the Punjab concurred with the view taken by the Regulation Wing.
The Chief Secretary, thus, on approval of the matter asked for necessary action and the
Court to be informed accordingly. This is vide letter, dated 19-10-2006, which has also
been placed on record.

6. The learned counsel for Muhammad Shafique Bajwa contends that he was appointed as
Superintendent (BS-16) in Lahore Museum, Lahore on deputation and absorbed later on
which appointment was legal in all respects and that writ of quo warranto cannot be
issued. He has made reference to Muhammad Liaquat Munir Rao v. Shams-ud-Din and
others 2004 PLC (C.S.) 1328; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh
and another 2004 SCMR 1299; Prof. Muhammad Wall Khan and another v. Secretary,
Government of Sindh and others 2003 MLD 719; Muhammad Rafique and 2 others v.
Muhammad Pervaiz and 2 others 2005 SCMR 1829 and Province of Punjab through
Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678
in this context. He also cites some appointments made in the Museum, in the past.

7. The learned Law Officer of the Province has produced departmental file to show that
on consideration of the matter it has been found that appointment of Muhammad
Shafique Bajwa as Superintendent in BS-16 was violative of law whose repatriation has
been ordered lawfully to his parent department i.e. Education Department.

8. Admittedly Muhammad Shafique Bajwa was Accounts Clerk (BS-7) in Government


High School, Mandi Kalay Ki, District Hafizabad when he made application, dated 25-2-
2003 to the Director, Lahore Museum, Lahore for appointment as Superintendent (BS-16)
on deputation. The application was blessed with approval on 1-3-2003. But terms and
conditions of his deputation were conveyed later on through Office Order dated 6-6-2003
w.e.f. 1-3-2003. Such order purports to have been issued under Rules 9 and 10 of Lahore
Museum Regulations, 1987. He then makes an application dated 22-6-2003 for
absorption in the said post i.e. Superintendent (BS-16), which application was also
allowed and he was ordered to be absorbed on 30-6-2003, on permanent basis. As noted
above, since the Department itself has found that his deputation and absorption was
contrary to law and he has been ordered to be repatriated, the principles governing the
issuance of writ of quo warranto lose their significance. That 'is why Mr. Muhammad
Shafique Bajwa has challenged his order of repatriation.

9. The flawed and illegal appointment of Mr. Muhammad Shafique Bajwa is evident from
the fact that requisite qualification for the post of Superintendent (BS-16) is graduation
whereas he was only intermediate. It was also violative of the policy that a Government
servant will not be considered for deputation against a higher post in the borrowing
organization unless he was due for promotion in his parent department. Even the
Selection Committee which considered the absorption of Muhammad Shafique Bajwa
was not legally constituted as there was no such approval by the Board of Governors,
Lahore Museum, Lahore/ Chief Secretary. Regulations 9 and 10 of the Lahore Museum
Regulations, 1987 which is being pressed for justifying his absorption is per se not
attracted and is being misconstrued inasmuch as the same relates to initial appointments
whereas the post of Superintendent is primarily a promotion post and for any such

Page No. 4 of 5
appointment, a Bachelor Degree from a recognized University with at least 5 years of
experience was required. Muhammad Shafique Bajwa lacked all such qualifications and
did not fulfil the eligibility/criteria for appointment/absorption on a post he is holding.
Thus, order about his repatriation to Education Department, dated 17.-7-2006 and
ultimate order of 19-10-2006 hardly can be regarded as the one passed without lawful
authority.

10. The past instances of erratic appointments cannot be made a precedent to be followed
for all, times to come in future. Nor the argument of discrimination be built on that basis.
A mistake if committed in the past and not pointed out/assailed, cannot be allowed to
become al precedent and perpetuated. The contention of the learned counsel thus, cannot
be countenanced.

The petition of Muhammad Shafique Bajwa is without merit and liable to be dismissed.

In view of the above Writ Petition No.8543 of 2006 is dismissed whereas Writ Petition
No.12846 of 2005 stands disposed of as having become infructuous. No order as to costs.

S.A.K./M-633/L Petition dismissed.

Page No. 5 of 5
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1