2012 P L C (C.S.) 54
[Balochistan High Court]
Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ
RASHEED TAREEN
Versus
CHAIRMAN WORKS WELFARE BOARD BALOCHISTAN and 2 others
Constitutional Petition No.423 of 2009, decided on 25th A ugust, 2011.
(a) Civil service ---
----Deputation ---Object and scope ---Deputationist is a government servant, who is appointed
or transferred through process of selection to a post in a department or service altogether
different from the one to which he permanently belongs ---Such government servant
continues to enjoy his status so long as he holds the new post in an officiating or temporary
capacity but seizes to be regarded, as such, either on confirmation/absorption in the new post
or on reversion to h is substantive post ---When a person belonging to a particular service or
cadre is transferred to another cadre or autonomous body, the same amounts to deputation
and terms and conditions of such civil servant have to be settled between borrowing and
lendin g authority ---Tenure of such appointment is also term and condition of service as per
Civil Servants Act, 1973 and when tenure is so fixed and notified it has to be honoured by
both borrowing and lending authorities except in special circumstances when bor rowing
agency directs repatriation of deputationist.
(b) Workers' Welfare Fund Ordinance (XXXVI of 1971) ---
----S. 11 -B(3) ---Workers' Welfare Fund (Employees Service) Rules, 1997, Rr.12 & 25(1) ---
Constitution of Pakistan, Arts.199 & 212 ---Constitutio nal petition ---Maintainability ---
Aggrieved person ---Scope ---Terms and conditions of service ---Deputation ---Absorption in
borrowing department ---Grievance of petitioner was that after recommendation of Provincial
Government, he could not be repatriated to h is parent department and he had been absorbed
in the borrowing department ---Validity ---Petitioner could not be permanently absorbed on
mere recommendation of Provincial Government nor on the basis of "No Objection
Certificate" issued by lending department, which had been subsequently been withdrawn ---
Petitioner was not validly recommended for permanent absorption in borrowing department
by Selection Committee or Selection Board in view of Rr.12 & 25(1)(iv) of Workers
Welfares Board (Employees Service) Rules , 1997 ---Deputationist through constitutional
petition could not claim permanent absorption in borrowing department as it was the
prerogative of borrowing department to determine tenure of deputation, to revert/return
deputationist or to absorb a deputatio nist permanently ---Petitioner was civil servant and
could not claim permanent absorption as a matter of right as lien of petitioner with lending
department was intact ---Due to refusal by borrowing department for permanent absorption,
petitioner could not b e termed as an aggrieved person ---Determination whether or not
petitioner lawfully stood permanently absorbed in borrowing department was the matter
pertained to terms and conditions of service of petitioner, therefore, Art.212 of the
Constitution would co me into play ousting jurisdiction of High Court to entertain and
adjudicate upon the matter while exercising powers under Art.199 of the Constitution ---High
Court declined to interfere in the notification issued by the authorities ---Petition was
dismi ssed in circumstances.
Shahid Iqbal v. Government of Pakistan Islamabad 1995 PLC (C.S.) 143 and
Muhammad Siddique v. Secretary Establishment Division 2001 PLC (C.S.) 973 rel.
Muhammad Qahir Shah for Petitioner.
Kamran Murtaza for Respondent No.1.
Nasrullah Khan Achakzai, Addl. A. -G.
Date of hearing: 8th August, 2011.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. --- Through this Constitutional Petition the
petitioner has challenged the Notification dated 19 -6-2009 issued by respondent No.1,
whereby the serv ices of the petitioner (deputationist) have been returned by respondent. No.1
(borrowing department) to C&W Department (Lending Department) with immediate effect
and against the letter dated 20 -6-2009 issued by respondent No.2, whereby it has been
requeste d that the absorption case of Mr. Rasheed Tareen may not be entertained. The
petitioner has claimed the following reliefs: ---
(a) Declaring that the impugned Notification dated 19 -6-2009 and letter dated 20 -6-2009
issued by respondent No.1 respectively are illegal, in excess of authority as well as
without any lawful jurisdiction, as of no legal effect.
(b) Declaring that the petitioner's services have been absorbed on the recommendations
of the respondent No.4 and on the basis whereof, the respondent No.4 being the
competent authority has permanently absorbed the petitioner's services in the Workers
Welfare Board Balochistan as Director Works (B -19) and the respondent No.1 is
bound under the law to follow the orders of respondent No.4 by implementing the
same in its letter and spirit.
(c) Declaring that the impugned Notification dated 19 -6-2009 is based on mala fides on
the part of respondent No.1 as well as at the instance of Provincial Minister concerned
and the same is based on colourful exercise of autho rity and jurisdiction having no
legal effect.
(d) After declaring the impugned Notification dated 19 -6-2009 being illegal and without
any lawful authority, the same may be declared being void, ab initio by directing the
respondent No.1 to implement the law ful orders of the respondent No.4 by allowing
the petitioner to serve the Workers Welfare Board Balochistan as Director Works (B -
19).
(e) Pending disposal of the main petition, the operation of impugned Notification dated
19-6-2009 and subsequent lett er dated 20 -6-2009 respectively may be suspended.
And the petitioner be allowed to continue his services as Director Works (B -19)
Workers Welfare Board Balochistan.
(f) With any other relief which this Hon'ble Court may found deemed fit and appropriate
in the circumstances of the case may also be awarded with cost of the proceedings, in
the interest of justice and equity.
Facts of the case are that the petitioner was initially appointed as Assistant Engineer
in C&W Department in the year 1985 through Bal ochistan Public Service Commission and
was subsequently promoted as Executive Engineer BPS -I8 in the year 2008. During his
service, in different years for different periods the services of the petitioner were transferred
to Workers Welfare Board Balochista n (respondent No.1) on deputation basis, however, lien
of petitioner in parent department was retained and the petitioner was not permanently
absorbed in the Borrowing Department i.e. respondent No.1. On 6 -2-2007 a notification was
issued by Government of Balochistan Services and General Administration Department,
whereby the posting of petitioner Acting E.D.O. C&W Department was ordered to be read as
Director Works in Workers Welfare Board, Labour and Man Power Department on
deputation basis for period of one year against existing vacancy instead of his posting as
Executive Engineer in the Workers Welfare Board Balochistan Quetta. In pursuance of
Notification 6 -2-2007 the petitioner on the very same day i.e. 6 -2-2007 assumed the charge
of the post of Direct or (Works), Workers Welfare Board Balochistan Quetta. Subsequently,
vide notification dated 3 -3-2008 issued by respondent No.2, with the prior approval of the
competent authority the deputation period of petitioner as Director (Works) Workers Welfare
Board Balochistan was extended for further period of two years w.e.f. 7 -2-2008 on usual
terms and conditions. No further notification has been issued for extension of the deputation
period of the petitioner. In the meanwhile, on 20 -12-2008 respondent No.2 issue d letter to
the Lending Department i.e. Secretary C&W Balochistan Quetta requesting therein to get
prior consent of respondent No.2 in case of any proposal with regard to transfer/shifting of
petitioner from the Workers Welfare Board to avoid inconvenience with administrative
affairs of the department. Prior to the issuance of letter dated 20 -12-2008 by respondent
No.2, on 6 -12-2008 summary was approved by worthy Chief Minister Balochistan for
transfer of petitioner to the Lending Department and o n 15-12-2008 respondent No.2 moved
summary to worthy Chief Minister Balochistan for review of his decision the larger interest
of province on the ground that the department is greatly indebted to petitioner's ebullient
services and his transfer at this sta ge when most of the projects are in their crucial phases is
likely to create a great void and will adversely affect the prospects of the development work
of workers board. Similarly, vide letter dated 14 -5-2009 respondent No.4 (Workers Welfare
Fund Islamab ad) also recommended that the services of petitioner may be absorbed on
permanent basis with respondent No.1 (Workers Welfare Board Balochistan) in view of his
excellent performance for timely completion of various development projects. On 25 -5-2009
the Le nding Department (C&W Department) issued letter to Secretary S&GAD Government
of Balochistan expressing no objection to the permanent absorption of service of petitioner in
Workers Welfare Board Balochistan. Vide letter dated 25 -5-2009 respondent No.2, who is
also Chairman of respondent No.1 agreed to the proposal of absorption of the petitioner in
Workers Welfare Board Balochistan floated by Workers Welfare Fund Islamabad.
Subsequently, instead of issuance of Notification by respondent No.2 for permanent
absorption of the petitioner in Workers Welfare Board impugned notification was issued on
19-6-2009 (prior to completion of deputation period of petitioner), whereby the services of
petitioner were returned by the Borrowing Department i.e. Workers Welfare Board
Balochistan to the Lending Department i.e. C&W Department and this notification was
followed by letter dated 20 -6-2009 issued by respondent No.2 (Secretary Labour
Department, Government of Balochistan), whereby the case of absorption of the petitione r
was requested not to be entertained.
On the other hand on same date i.e. 20 -6-2009 S&GAD, Government of Balochistan,
issued letter to the Workers Welfare Fund Islamabad, to convey approval of the competent
authority for permanent absorption of the petit ioner in Workers Welfare Board Balochistan.
In pursuance of above letter of S&GAD the Assistant Director, Workers Welfare
Fund Islamabad issued letter dated 23 -6-2009 stating therein that the services of petitioner
has been taken on the strength of the Bo ard against the same post i.e. (Director BPS -19) with
immediate effect.
Vide letter dated 24 -6-2009 Principal Secretary to Worthy Chief Minister Balochistan
conveyed to Secretary S&GAD for withdrawal of the approval of the competent authority
convey ed vide letter dated 20 -6-2009 to the Workers Welfare Fund Islamabad, Ministry of
Labour and Manpower Department, Government of Pakistan.
On 27 -6-2009 S&GAD, Government of Balochistan, reviewed its earlier decision and
regretted to grant approval for p ermanent absorption of the petitioner in Workers Welfare
Board Balochistan. The NOC dated 20 -6-2009 was withdrawn ab initio.
On 27 -6-2009 the Assistant Director Workers Welfare Fund Islamabad with reference
to its earlier letter dated 23 -6-2009 requested to follow the advice and to issue necessary
notification accordingly.
The petitioner filed the instant constitutional petition on 29 -6-2009, which was
admitted for regular hearing on 2 -7-2009 and the operation of the impugned
order/notificatio n dated 19 -6-2009 and 20 -6-2009 was suspended till further orders and the
petitioner was allowed to continue on the post (as deputationist).
The respondents Nos.1 and 2 contested, the petition by filing counter -affidavit
agitating that under the releva nt rules no provision exists for permanent absorption of
government employees and further agitated that during different periods the petitioner
remained on deputation with respondent No.1, but his lien remained intact with Lending
Department i.e. C&W, wher e he got all the benefits regarding seniority and promotion and it
was agitated that the right of the petitioner to remain with respondent No.1 was only till 6 -2-
2010. It was also agitated that respondent No.1 i.e. Workers Welfare Board Balochistan is an
Autonomous Body and has no concern or connection with respondents Nos.3 and 4 (Workers
Welfare Fund Islamabad) for the purpose of appointments, posting, transfer, absorption and
deputation of employees. It was categorically stated that the petitioner was ne ver absorbed
permanently in the Workers Welfare Board Balochistan and respondent No.4 Workers
Welfare Fund Islamabad has no authority to recommend for absorption of the petitioner nor
same is binding upon respondent No.1.
The respondents Nos.3 and 4 (Work ers Welfare Fund Islamabad) filed parawise
comments and while replying ground -B of petition it was stated by respondents Nos.3 and 4
that the petitioner has been permanently absorbed in the Workers Welfare Board Balochistan
vide order dated 23 -6-2009 as Di rector (Works) and further it was stated that Chairman of
the Board being Chief Executive can appoint the employees only with the previous approval
of the Governing Body of the Workers Welfare Fund.
Respondent No.5, the incumbent officer filed counter aff idavit agitating therein that
the tenure of petitioner as deputationist with respondent No.1 has been completed on 6 -2-
2010, whereafter the petitioner has no vested right to remain in the Workers Welfare Board
Balochistan or to file the petition. It was fu rther agitated that petitioner being Officer of
Grade -18 belonging to another department is drawing benefits of Grade -19 in Workers
Welfare Board Balochistan despite completion of his deputation tenure. It was further
agitated that the petitioner is sittin g in the Workers Welfare Board Balochistan after expiry
of his deputation period i.e. 6 -2-2010 in the garb of stay order of this court.
Mr. Muhammad Qahir Shah, learned counsel for the petitioner argued that after
issuance of N.O.C. by the Lending Departm ent and after initiating summary by respondent
No.2 and in view of the recommendation of Workers Welfare Fund Islamabad, there was no
occasion for respondents Nos.1 and 2 to refuse permanent absorption of the petitioner in the
Borrowing Department and keep ing in view the meritorious services of petitioner and his
contribution as well as favourable recommendations, the respondent No.1 was bound to issue
notification for permanent absorption of the petitioner with respondent No.l. He further
argued th at the impugned notification dated 19 -6-2009 is based on mala fide and same
has been issued at the instance of concerned provincial minister and is colourful exercise
of authority.
Mr. Kamran Murtaza, Advocate, appearing on behalf of responden t No.1 argued that
recommendation or advice of respondent No.4 for permanent absorption of petitioner has no
legal value as respondent No.1 (Workers Welfare Board Balochistan) and respondent No.4
(Workers Welfare Fund Islamabad) are two separate and distin ct entities and the petitioner
was not employee of respondent No.4 rather was a deputationist of respondent No.l. Learned
counsel further argued, that it is the prerogative of the Borrowing Department to retain,
absorb or return back the services of deputa tionist to the Lending Department. He further
argued that no prejudice is caused to the petitioner by return of his services as his lien with
the Lending Department is intact. Learned counsel further argued that vide letter dated 27 -6-
2009 the S&GAD has al ready withdrawn the N.O.C. dated 20 -6-2009 for permanent
absorption of the petitioner in Workers Welfare Board Balochistan. Learned counsel also
referred Workers Welfare Fund Ordinance, 1971 and relevant provision of the Workers
Welfare Fund (Employees Ser vice) Rules, 1997 adopted by Workers Welfare Boards vide
letter dated 29 -7-1997.
Mr. Nasrullah Achakzai, learned Additional A.G. also opposed the petition.
After hearing arguments of learned counsel for the parties, we have gone through the
record of the case.
Before proceeding further it is to be observed that a deputationist is a government
servant, who 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 permane ntly belongs.
Such a government servant continues to enjoy his status so long as he holds the new post in
an officiating or temporary capacity but seizes to be regarded, as such, either on
confirmation/absorption in the new post or on reversion to his subs tantive post.
When a person belonging to a particular service or cadre is transferred to another
cadre or autonomous body the same amounts to deputation and terms and conditions of such
civil servant had to be settled between the borrowing and lending aut hority. Tenure of Such
appointment is also a term and condition of service as per Civil Servants Act, 1973 and when
tenure is so fixed and notified it has to be honoured by both borrowing and lending
authorities except in a special circumstance when the bo rrowing agency directs repatriation
of a deputationist.
In the instant case vide notification dated 3 -3-2008 the deputation period of petitioner
was extended for a period of two years w.e.f. 7 -2-2008, which was to expire on 6 -2-2010, but
in the meanwhile before expiry of the above term vide impugned notification dated 19 -
6-2009 the services of the petitioner being deputationist were returned by the Borrowing
Department (respondent No.1) to the Lending Department i.e. G&W Department. There
exists no further notification for extension of the deputation of the petitioner with respondent
No.1 nor any notification has been issued by respondent No.1 for permanent absorption of
the petitioner with Workers Welfare Board Balochistan. It has also come on re cord that the
earlier NOC issued by the Lending Department expressing no objection for permanent
absorption of the petitioner in the Borrowing Department has also been reviewed and
withdrawn.
At this juncture it is to be noted here that Workers Welfare Fund is creation of
an Ordinance called the Workers Welfare Fund Ordinance 1971 and Federal Government by
Notification in the Official Gazette constitutes a Governing Body of the Fund for entrustment
of the management and administration of the Fund and according to section 7 of the
Ordinance of the 1971 the Governing Body shall consist of Secretary to the Government of
Pakistan in the Ministry dealing with the matters relating to Labour Welfare, who shall be its
Chairman and not more than 18 other m embers to be appointed by the Federal Government.
Even, in case of absorption of deputationist to the Workers Welfare Fund under Rule
25(1)(iv) of the Workers Welfare Fund Employees Service Rules, 1997, recommendation of
Selection Board or appropriate Sele ction Committee in accordance with rule 12 is
mandatory.
On the other hand Workers Welfare Board is constituted under section 11 -A of
Workers Welfare Fund Ordinance, 1971 after allocation is made from the Fund and it is a
body corporate having perpetual s uccession and a common seal with power under section 11 -
A of the Workers Welfare Fund Ordinance, 1971 for the efficient management and
administration of the money allocated from the Workers Welfare Fund and the projects or
other measures financed by such m oney. Under section 11 -A(2) the Board shall consist of a
Chairman and not more than nine other members appointed by the Provincial Government,
agency or, as the case may be, body corporate. According to section 11 -B(4) all decisions of
the Board shall be e xpressed in terms of the opinion of the majority of the members of the
board present in the meeting and in the event of equality of votes the Chairman shall have a
second or casting vote.
The Workers Welfare Fund (Employees Service) Rules, 1997 have been adopted by
the Workers Welfare Board vide letter dated 29 -7-1997. Rule 12 and rule 25(1)(iv) are
reproduced herein below: ---
Rule 12: -
"12. Constitution of Selection Board and Selection Committee .--- (1) There shall be
constituted a Selection Boa rd, headed by the Secretary, for the purpose of selection of
person for appointment to posts in pay scale -19, and members of the Board shall be:
(i) Joint Secretary (Labour); and
(ii) Financial Advisor (Labour).
(2) There shall be constituted one or more S election Committees, with approval of the
Secretary, for the purpose of selection of persons for appointment to posts in pay
scale -18 and below."
Rule 25: -
25. Conditions for absorption of deputationist to the Fund .--- (1) A person serving
on deputation t o the Fund may be appointed to an equivalent post or above if
competent authority so desires, on regular basis subject to the following conditions,
namely: --
(i) the person, serving on deputation, applies in writing for or gives his consent to such
absorpt ion;
(ii) his parent office agrees to such absorption;
(iii) he possess the qualifications laid down for initial appointment to the post in Part -II of
Appendix 2 to these rules;
(iv) he, in the opinion of the appointing authority, is suitable for such abso rption and is
recommended by the Selection Board or, as the case may be, by the appropriate
Selection Committee constituted in accordance with rule 12;
(v) for the purpose of absorption, he seeks retirement from his parent office, if he has
completed the r equired service for retirement benefits, or, otherwise, fulfills such
conditions as the competent authority may require to join the Fund; and
(vi) save as may otherwise be provided by rules, no benefit of his previous service shall be
admissible for any pu rpose in the fund as a right."
In view of Rule 12 and Rule 25(1)(iv) of the adopted Workers Welfare Fund
(Employees Service) Rules, 1997 the permanent absorption of the petitioner in Workers
Welfare Board Balochistan cannot be made on the basis of recomme ndation of respondent
No.4 dated 14 -5-2009 or the advice or request of respondent No.4 dated 27 -6-2009 nor
the letter dated 25 -5-2009 issued by respondent No.2 can be made the basis of permanent
absorption of petitioner. The NOC issued by the Lend ing Department has already been
withdrawn on 27 -6-2009. Similarly, the letter dated 23 -6-2009 issued by respondent No.4
stating that the services of the petitioner have been taken on the strength of Balochistan
Workers Welfare Board against the same post w ith immediate effect has no legal value as the
petitioner is not the employee of respondent No.4 rather the petitioner was deputationist with
respondent No.1 and it is the prerogative of respondent No.1 to retain, revert or absorb the
services of a deputationist. The letter dated 23 -6-2009 issued by respondent No.4 further
loses the significance in view of its second letter dated 27 -6-2009, whereby with
regard to letter dated 23 -6-2009 it was requested by respondent No.4 to follow the a dvice and
issue necessary notification with regard to permanent absorption of petitioner (meaning
thereby that petitioner was not permanently absorbed). The advice or request of respondent
No.4 is not binding upon respondent No.1, which is a body corporate and is a separate entity
from respondent No.4. Respondent No.4 is not the competent authority nor has jurisdiction to
issue letter dated 23 -6-2009 (stating therein that services of the petitioner has been taken on
the strength of Workers Welfare Board Balochistan) and letter dated 27 -6-2009
(request to follow the advice and to issue necessary notification).
The fact remains that the Borrowing Department i.e. respondent No.1 has not issued
any notification for permanent absorption of petitioner an d has reverted/returned the services
of the petitioner to the Lending Department on 19 -6-2009 prior to completion of his extended
period of deputation. Legally, according to rules 12 and 25(1)(iv) of the adopted rules of the
Workers Welfare Fund (Employees Service) Rules, 1997 the petitioner can be absorbed in
the Workers Welfare Board Balochistan on the recommendation of Selection Committee or
Selection Board and not otherwise. Further, according to Finance Act No.1 of 2008
amendment has been made in secti on 11 -B(3) of the Workers Welfare Fund Ordinance, 1971,
whereby the Chairman Workers Welfare Board being its Chief Executive (respondents Nos.1
and 2) may appoint a Secretary and such other staff on such terms and conditions as the
Board may sanction with "prior approval of the Governing Body". The Board under section
11-A (2) shall consist of a Chairman and nine other members appointed by the provincial
government and the governing body of the Fund under section 7 consist of Secretary,
Government of Pakist an, Ministry of Labour Welfare Department and not more than 18 other
members appointed by the Federal Government.
In view of the above Rules of 1997 and the amendment made in the Workers Welfare
Fund Ordinance, 1971 the petitioner cannot be permanently ab sorbed on mere
recommendations of respondents Nos.2 and 4 nor on the basis of NOC issued by Lending
Department, which has subsequently been withdrawn. Since, the petitioner has not been
validly recommended for permanent absorption in Workers Welfare Board Balochistan by
Selection Committee or Selection Board in view of rules 12 and 25(1)(iv) of the adopted
Workers Welfare Board (Employees Service) Rules, 1997, hence the obliging parawise
comments of respondents Nos.3 and 4 are of no avail to the petitioner and the ground
agitated by the counsel for the petitioner that the return of the services of the petitioner to the
Lending Department is mala fide and a colourful exercise of authority at the instance of
Minister, loses weight.
The claim of the petitioner that he has been permanently absorbed in the Borrowing
Department and his repatriation/return to the parent department is not valid, has no force as
admittedly there is no recommendation of Selection Committee or Selection Board for
permanent absorption o f the petitioner. The petitioner in the above circumstances cannot
claim permanent absorption in the Borrowing Department nor the petitioner has any vested
right to continue on deputation as he has been repatriated vide notification impugned dated
19-6-2009 before completion of his deputation period and his lien with the Lending
Department has not been terminated.
A deputationist through Constitutional Petition cannot claim permanent absorption in
the Borrowing Department as it is the prerogative of the Bo rrowing Department to determine
the tenure of deputation, to revert/ return back the deputationist or to absorb a deputationist
permanently.
Petitioner being a Civil Servant cannot claim permanent absorption as a matter of
right as the lien of the petitio ner with Lending Department i.e. C&W Department is still
intact, hence, by reversion to the Lending Department and due to refusal by the borrowing
department for permanent absorption the petitioner cannot be termed as an aggrieved person.
Reference in this regard is made to the case of Shahid Iqbal v. Government of Pakistan
Islamabad 1995 PLC (C.S.) page 143 and Muhammad Siddique v. Secretary Establishment
Division 2001 PLC (C.S.) 973.
It is further observed here that tenure of deputation or absorption of a deputationist
are the terms and conditions of service as per Civil Servants Act, 1973 and matter relating to
terms and conditions of service has to be adjudged by no other court except the
administrative court or the tribunal created under Article 212 of the Constitution of Islamic
Republic of Pakistan, which envisages that no other court would adjudicate in respect of
matters to which jurisdiction of administrative court or tribunal extends. The petitioner is
admittedly a civil servant and the point of d etermination in the instant petition was whether
or not petitioner lawfully stood permanently absorbed in the borrowing department and this
matter pertains to the terms and conditions of the service of the petitioner, therefore, Article
212 of the Constitu tion comes into play ousting jurisdiction of this court to entertain and
adjudicate upon the matter while exercising powers under Article 199 of the Constitution of
Islamic Republic of Pakistan.
Consequent, to the above discussion, the petition having no force is dismissed with no
order as to cost.
M.H./109/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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