2015 P L C (C.S.) 1513
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar, Actg. C.J. and Muhammad Kamran Khan Mulakhail, J
GHULAM MUSTAFA and 4 others
Versus
EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN through
Chairman and 3 others
C.P. No.636 of 2012, decided on 13th August, 2015.
Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 ---
----R. 22 ---Balochistan Service Tribunal Act (V of 1974), S.3 ---Constitution of Pakistan,
Arts.199 & 212 ---Const itutional petition ---Maintainability ---Civil service ---Deputationist ---
Transfer of employee ---Terms and conditions of service ---Scope ---Remedy for the civil
servants/petitioners would lie with the Authority and also before the Service Tribunal if any
terms of their service had been violated ---High Court had no jurisdiction in the matter ---Civil
servants/petitioners had not availed the remedy under the law and rules ---Constitutional petition,
therefore, was not maintainable ---Policy governing terms and condi tions of deputation of civil
servants had not been followed by the authorities rather they remained silent having knowledge
of illegality ---Borrowing authority was empowered to take disciplinary action against the civil
servant on deputation ---Lending auth ority being parent department could initiate proceedings
against the accused civil servant under the rules governing the deputationist in its parent
department ---Both the borrowing and lending authorities despite having knowledge that initial
appointment o f deputationist was illegal and bogus kept silent for a considerable period which
was objectionable ---High Court passed direction that there should be no extension in the period
of deputation and deputationist should be repatriated to their parent departme nt without any loss
of time ---Parent department of the deputationist was directed to take disciplinary action not only
against them but also against the persons responsible of their appointment and also for their
transfer and posting on deputation ---Consti tutional petition was disposed of in circumstances.
Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195; Chief
Engineer, Hydel (North) and Project Director, WAPDA, Warsak v Zafrullah Shah and another
2003 SCMR 686 and Muhammad Asghar v. Government of Balochistan 2012 PLC (C.S.) Quetta
142 ref.
Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 rel.
Tahir Ali Baloch for Petitioners.
Muhammad Qahir Shah, Muhammad Riaz Ahmed for Respondents Nos.3 and 4.
Sher Shah Kasi, Deputy Attorney General and Latif Kakar, Asstt. A. -G. for Official
Respondents.
Date of hearing: 5th August, 2015.
ORDER
MRS. SYEDA TAHIRA SAFDAR, ACTG. C.J. --- The petitioner Ghulam Mustafa and
four others were before this court w ith a petition for writ against the official and private
respondents, while contending that they being the regular employees serving in the Revenue
Department (The Department) on different posts, thus their services fall within the ambit of civil
services and they are civil servants as described by law. Their grievance pertains to issuance of
order for transfer and posting of respondent Nos. 3 and 4 in the Department as Tehsildars. It was
their case that the initial appointments of respondents Nos.3 and 4 w ere on ad hoc basis in the
Evacuee Trust Property Board (The Board) without adhering to the legal formalities. While on
appointment they (respondents Nos.3 and 4), were attached for the purpose of training to the
Board of Revenue Balochistan vide letter da ted 15th March, 2012, but later on, the respondent
No. 3 was posted as Tehsildar in District Musa Khail, while respondent No. 4 was posted as
Tehsildar Nokundi Chagai, in violation of Law and Rules, as being employees of the Board
could not be transferred and posted as regular Tehsildars in the Department. It was prayed that
the order for transfer and posting of respondents Nos.3 and 4 be declared illegal and in excess of
authority, thus be set aside, with a direction to them to join their (respondents Nos. 3 and 4)
parent department i.e. the Board.
2. The Department (respondent No.2) through Senior Member Board of Revenue filed parawise
comments with the averments that the transfer and posting of respondents Nos.3 and 4 was as per
desire of the Chief Minis ter and the Revenue Minister, with the approval of the competent
authority. Further, the Revenue Minister having the authority to make order for transfer/posting
with approval of the Chief Minister, which was duly obtained. The right of the petitioners was
denied while contending that the orders were made in accordance with the law while observing
all the legal formalities. Further, two posts of Tehsildar were created for a period of three years
for the purpose of payment of salary to the deputationist (res pondents Nos.3 and 4), which also
suffered with no illegality.
3. The Evacuee Trust Property Board (respondent No.1) in separate reply averred that initially
the respondents Nos.3 and 4 were appointed as Tehsildar on work charge basis for a period of
eighty eight (88) days in 2010, their services were regularized vide order dated 20th September,
2011. It was further averred that after scrutiny the work charge appointments of the respondents
Nos.3 and 4 were found bogus, irregular, which made the whole pro cess of regularization illegal
and without lawful authority. It was asserted that respondents Nos.3 and 4 though employees of
the Board, but at present their services were placed at disposal of the Government of Balochistan
on deputation basis for a period of three years on request of the Government of Balochistan.
4. In their joint reply it was asserted by the respondents Nos.3 and 4 that on request of the
Government of Balochistan their services were placed at the disposal of the Government of
Balochist an and they were at the disposal of the Board of Revenue on deputation for a period of
three years vide Notification dated 11th July, 2012, and the process was held by observing all the
legal formalities.
5. The learned counsel for the petitioners in add ition to what have been asserted in the petition
stated that the appointments were illegal and without lawful authority and in violation of the
Rules and Regulations, as admitted by the Board in its parawise comments, thus of no legal
effect. Reliance was placed on: ---
Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195
Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752
6. The learned counsel for respondent No.1 repeated the stance taken in the parawise comm ents
and on query only stated that no departmental proceedings were pending against the respondents
Nos.3 and 4. While the learned Assistant Advocate -General stated that the period of deputation
had already been expired, and no order of extension of the pe riod was issued till date by the
concerned authority. He further stated that respondent No.2 had not taken any action against
them (respondents Nos.3 and 4).
7. As far respondents Nos.3 and 4 are concerned, their counsel objected jurisdiction of this cou rt
and placed reliance on the judgment titled Chief Engineer, Hydel (North) and Project Director,
WAPDA, Warsak v. Zafrullah Shah and another reported in 2003 SCMR 686. It was contended
that the petitioners and respondents Nos.3 and 4 both fall within the category of civil servants,
thus the jurisdiction lies with the Services Tribunal. He further stated that in case of deputation
there was no order to repatriate them to their parent department, nor any order of dismissal from
service. The learned counsel w as of the view that as the period of deputation had already been
expired, thus the instant petition had become infructuous, and the relief claimed could not be
granted. Reliance was placed on judgment titled Muhammad Asghar v. Government of
Balochistan rep orted in 2012 PLC (C.S.) Quetta 142.
8. In reply the learned counsel for the petitioners referred to Articles 9 and 14 of the Constitution
of Islamic Republic of Pakistan, 1973, and stated that the posts were created after order of
deputation which established that at the relevant time there were no posts, where the referred
respondents could be adjusted.
9. The petitioners were aggrieved of the Notification dated 11th July, 2012, which was to the
effect: ---
"Notification
No.120 (29)/2012/SO -I/(S&GAD). With the prior approval of the competent authority
and in pursuance of Evacuee Trust Property Board (ETPB), Lahore's letter No. 5787
dated 6th July, 2012, the services of the following officers are hereby further placed at
the disposal of Board of Revenue Balochistan on deputation basis for a period of three
years: ---
1. Mr. Zia Sanjrani, Tehsildar, ETP Office Quetta.
2. Mr. Mohammad Ismail Sanjrani, ETP Office Quetta
CHIEF SECRETARY
BALOCHISTAN"
Consequent to this Notification the respond ents Nos.3 and 4 were posted as Tehsildar in the
Revenue Department, thus their services were to be governed by the Policy for Deputation of
civil servants framed vide letter dated 21st November, 2007 of Government of Balochistan,
Services and General Admi nistration Department. The facts as described that initially
respondents Nos.3 and 4 were appointed on daily wages for a period of 88 days, this arrangement
continued until the services were regularized by the Board vide order dated 20th October, 2011.
While in July, 2012 their services were lend to the Government of Balochistan, whereby they
were posted as Tehsildar in the Board of Revenue, thus they were on deputation in services of
the Government of Balochistan. The petitioners, regular employees of the Board of Revenue,
were aggrieved of the order of borrowing services of respondents Nos.3 and 4, resulted in filing
of the instant petition.
10. Before going into merit of the case the maintainability of the petition is to be considered, as
an objection was raised on jurisdiction of this court by the learned counsel for respondents Nos.3
and 4. According to him the jurisdiction lies with the Se rvices Tribunal as the matter in issue
pertains to the terms and conditions of service. In case in hand the petitioners are in regular
employment of the Department, thus in civil services of the Province, and covered by the term
civil servant. Thus their s ervices are to be governed by the Balochistan Civil Servants Act, 1974
(The Act, 1974). In addition their (petitioners') grievance was in respect of lending the services
of respondents Nos.3 and 4 to the Government of Balochistan, and their posting in the Board of
Revenue. According to the petitioners this act of the Authority prejudicial to their right. Rule 20 -
A of the Civil Servants (Appointment, Promotion and Transfer) Rules 1973,which pertains to the
Federal Civil Services, deals with appointment on de putation, while Rule 22 of the Balochistan
Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 is identical. It required
formulation of policy and procedure for inter provincial transfer of government servants, thus the
policy framed has power of law and it is to be adhered to. In view of the referred law, and Rules
if any term of services of the petitioners violated by the act of the concerned authorities the
remedy lies with the Authority as provided in the Rules and also before the Service T ribunals
constituted for the purpose under section 3 of The Balochistan Service Tribunal Act, 1974 (Act,
1974) within the mandate of Article 212 of the Constitution. Thus this court lacks jurisdiction in
the matter. The remedy available under the law and t he Rules was not availed by the petitioners,
making the instant petition not maintainable.
11. In view of the narrated facts and findings there is no need to go into further details of the case
and to assess the legality of the order in question in compa rison to the referred Rules and Policy,
and in view of the guidelines given in the judgment reported in 2013 SCMR 1752 in the case
"Contempt Proceedings against Chief Secretary Sindh and others" by honorable Supreme Court.
12. Before parting with the ord er, the court took note of the statement of the Assistant Advocate -
General that the period of deputation has already been expired and not extended, thus the
respondents Nos.3 and 4 have to be repatriated to their parent department. Certain facts also need
to be noted in addition thereto that as per reply of respondent No.1 (the Board) the initial
appointment of respondents Nos.3 and 4 were bogus, illegal and without lawful authority, but it
remained mere an assertion. As the learned counsel representing the Board (respondent No.1)
when asked about the steps taken by the Board, the parent department, as well as the lending
authority, was unable to reply. He only stated that as the respondents Nos.3 and 4 were on
deputation and their services were at the dispo sal of Government of Balochistan, therefore, the
Board had not taken any action against them. While the learned Assistant Advocate -General was
also asked to explain that when on filing of the reply by the Board on 11th November, 2014 the
fact came into kno wledge of the Department, the borrowing authority, whether any action was
taken against respondents Nos.3 and 4, the answer was in negative. It was only stated that as
transfer/posting was within the domain of the Minister, therefore, no action was taken a gainst the
respondents Nos.3 and 4.
13. It is noted with concern that the Policy, which governs terms and conditions of deputation of
civil servants was not followed by the authorities, lending and borrowing, rather they remained
silent despite having kn owledge of the illegality. The procedure of inquiry against deputationist
is provided in Para -17 of the Policy. The borrowing authority is fully empowered to take
disciplinary action against a civil servant on deputation. While the lending authority, being the
parent department, have all the authority to initiate proceedings against the accused civil servant
under the Rules governing the deputationist in its parent department. Both the authorities,
borrowing and lending, despite having knowledge that initia l appointment was illegal, bogus
kept silent for a period consisting of years. It is not only unfortunate but highly objectionable.
14. In view of the narrated facts the prayer in the petition could not be allowed, but keeping in
view the reply of the Bo ard it deemed necessary to direct that there shall be no extension in the
period of deputation of respondents Nos.3 and 4, they shall be repatriated to their parent
department without any loss of time. While the parent department i.e. respondent No.1 Evacu ee
Trust Property Board is required to take disciplinary action not only against the respondents
Nos.3 and 4, but also against the persons responsible of their appointment, and also for their
transfer and posting on deputation to the Government of Balochis tan.
The petition stands disposed of in the above terms.
ZC/90/Bal. Order accordingly.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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