2017 P L C (C.S.) 491
[Balochistan High Court]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
ABDUL GHAFOOR
Versus
PROVINCE OF BALOCHISTAN through Chief Secretary and 3 others
C.P. No.1139 of 2015, decided on 26th May, 2016.
(a) Balochistan Civil Servants Deputation Policy, 2012---
----R. 21(d) ---Balochistan Government Rules of Business, 2012, Rr.2(d), 4, 6 & 8(g) ---Employee
of stateowned Pakistan Telecommunication Company ---Transfer of employee to Local
Government and Rural Development Depar tment on deputation--- Discrimination ---Direction of
Minister for transfer on deputation---Scope ---Contention of petitioner was that impugned
deputation and posting of respondent was against the Deputation Policy, 2012---Validity ---
Employees of Telecommunication Company were not civil servants any more ---Respondent was
not a civil servant and his transfer by way of deputation was contrary to law ---Each Province was
autonomous under the Constitution to make its own laws particularly for civil services ---Rules
framed by Federal Government and respective Provincial Government could not be acted upon
to make out a case of discrimination ---Government had to remain with its own law, Rules and
Regulations to be followed--- If no suitable person was available to a pos t in a department then it
might be filled in the public interest through deputation by way of transfer in consultation with
the appointing authority ---Deputation could be necessitated only in the public interest/exigency
of service---Minister had no author ity to demand deputation or transfer of a particular employee
on his whims ---Secretary of the department was to assist the Minister and when the Minister's
order appeared to involve a departure from laws, regulations or government policy then he
should res ubmit the case to the Minister inviting his attention to the rules, regulations or
government policy ---Secretary was bound to follow policy, guidelines and directions adhering to
the Constitution, Law and Rules of Business ---Deputation of respondent had be en dealt with in
violation and contrary to the Deputation Policy, 2012 and was not based on public interest or any
exigency of service but was of the whims of the Minister ---Impugned notification of
appointment of respondent on deputation could neither be justified nor sustained which was
declared without lawful authority having no legal effect ---Authorities were directed to make
regular appointment/promotion to the post in question in accordance with law ---Constitutional
petition was allowed in circumstanc es.
PLD 2011 SC 132 and 2012 SCMR 152 ref.
2013 SCMR 1752; 2013 SCMR 304; Syed Mahmood Akhtar Naqvi and others v.
Federation of Pakistan and others PLD 2013 SC 195; Syed Mazar Abbas Jaffery v. Secretary to
the Government of Punjab and another 2006 SCMR 606 and Zahid Akhtar v. Government of
Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD
1995 SC 530 rel.
(b) Constitution of Pakistan ---
----Art. 199---Quo warranto, writ of ---Scope.
Sub- clause 1(b) (i) (ii) of Arti cle 199 of the Constitution is an exceptional, which
provides that quo warranto is a remedy, whereby; the Court inquire into the legality of the claim
and to consider, as to whether the incumbent is holding his post in accordance with law or
otherwise. Hig h Court in exercise of its Constitutional jurisdiction is competent to inquire from a
person holding a public office, as to under what authority of law, he claims to that office. Quo
warranto also offered a judicial remedy in respect of appointment made to a public office against
the law and to protect a citizen from being deprived of public office, to which he had a right. For
the purpose of invoking such writ jurisdiction, any person informing the Court is not required to
show his locus standi. Any person can move to the High Court to challenge the un -authorized
occupation of a public office.
Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary,
Housing and Physical Planning and 2 others 2000 SCMR 1720 rel.
Zafar Alam Mandokhail for Petitioner.
Khursheed Anwar Khosa for Respondent No.4.
Shaihaq Baloch, Asstt. A.G. for Official Respondents.
Date of hearing: 9th March, 2016.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- Respondent No.4 Fareedullah joined Pakistan
Telecommunication Company (PTCL) services in the year 1995 and was working as Technical
Officer (BPS -17). His services were requisitioned by the respondent No.3 (Local Government
and Rural Development Department, Government of Balochistan) (Borrowing Department), vide
letter dated 25th November 2014, as Assistant Director (BPS -17). The PTCL vide letter dated
12th December 2014, issued No Objection Certificate (NOC) to the requisitioned of services of
the respondent No.4, for such post. The respondent No.3 vide Notification dated 6t h October,
2015 placed the services of the respondent No.4, as Assistant Director (B -17) in Borrowing
Department for three years on deputation basis with the standard terms and conditions of the
Balochistan Civil Servants Deputation Policy, 2012, and vide Notification dated 16th November
2015, posted him (Respondent No.4) as Planning Officer (BPS -17) in the office of the Director
General, Local Government, Balochistan, Quetta (impugned deputation and posting).
2. The petitioner was promoted as Senior Development Officer (BPS -17), vide Notification
dated 29th September 2014. The respondent No.3 vide Notification dated 28th January 2013,
made amendment in the Balochistan Local Government and Rural Development Department,
whereby, criteria for the post of Assis tant Director (BPS -17)/Planning Officer (BPS -17) was laid
down as under:
8. Assistant
Director
(BPS -
17)/Planning
Officer
(BPS -17) Master's Degree
(Second Division) in
Statistics/Economics
equivalent
qualification in the
relevant subject
from a recognized
University. (a) 40% by initial recruitment. (b) 40%
by promotion from amongst the members
of the Service holding the post of Senior
Development Officer (BPS -17) having at
least two years service as such on
seniority cum fitness basis; and (c) 20%
by promot ion from amongst the members
of the Service holding the post of
Superintendent (BPS -16) having at least
three years service as such on seniority
cum fitness basis.
3. The petitioner through the instant petition has challenged the impugned deputation and
posting of the respondent No.4 on the ground of contravention of Deputation Policy, 2012,
inasmuch as it affects the promotion of the petitioner regular basis or acting charge basis.
4. The respondents Nos.3 and 4 in their parawise comments and counter af fidavits
respectively contested the instance of the petitioner, mainly on the ground that deputation
process and Notification thereof have been issued in accordance with law, procedure and
petitioner was not eligible for the post in question, due to lack of required length of service.
5. The learned counsel for the petitioner contended that only Civil Servants under the policy
of deputation were to be taken on deputation; that the respondent being an employ of PTCL,
lacks definition of Civil Servant; that initial process of his deputation was regretted by the
Competent Authority, but subsequently without adopting proper course, impugned Notification
was issued; that transfer of the respondent. No.4 out of cadre was unauthorized, illegal and
without competenc e; that deputation/transfer of the respondent No.4 affects the person, who was
eligible to be promoted in the department. Learned counsel placed reliance on the cases reported
in PLD 2011 SC 132.
6. Learned Assistant Advocate General assisted by the learned counsel for the respondent
No.4, contended that neither petitioner is eligible for promotion, nor impugned Notification
affects any of the vested right of the petitioner; that the impugned Notification was issued by the
Competent Authority, after followi ng the required procedure, which is still in field; that
petitioner has no locus standi to challenge the same; that the respondent No.4 was initially
employee of Telephone and Telegraph Department (T&T) was transferred to the corporation and
then to the company, therefore, such transferred employees are civil servants. They placed
reliance on a case reported in 2012 SCMR 152.
7. We have heard the learned counsel for the parties and considered the case on the basis of
documents annexed along with the petition and relevant procedure related to the issue in
question. The respondents raised objection that the petitioner is neither aggrieved party/persons
nor the instant writ petition is maintainable on such ground. We have perused the record in this
respect and find that the petitioner has sought writ of quo warranto to declare that the respondent
No.4 is not entitled to hold his position, as a deputationist, as the same is contrary to Statuary
Rules. It is to be considered, as to whether petitioner has locus sta ndi to agitate this matter? And
secondly if so, duly fact warrants the issuance of writ of quo warranto. Sub- clause 1(b) (i) (ii) of
Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is an exceptional,
which provides that quo warranto is a remedy, whereby; the Court inquires into the legality of
the claim and to consider, as to whether the incumbent is holding his post in accordance with law
or otherwise? High Court in exercise of its Constitutional jurisdiction is competent to inquire
from a person holding a public office, as to under what authority of law, he claims to that office.
Quo warranto also offered a judicial remedy in respect of appointment made to a public office
against the law and to protect a citizen from being deprive d of public office, to which he had a
right. For the purpose of invoking such writ jurisdiction, any person informing the Court is not
required to show his locus standi. Any person can move to the High Court to challenge the un-
authorized occupation of a public office. Reference in this respect is to be made to the case of
Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and
Physical Planning and 2 others 2000 SCMR 1720, wherein, the Hon'ble Supreme Court of
Pakistan obs erved as under:
"Under Article 199(2)( b)(ii) of the Constitution of the Islamic Republic of Pakistan the
High Court in exercise of its Constitutional jurisdiction is competent to enquire from any
person, holder of a public office to call upon him to show that under what authority he is
holding the said office. In such- like cases where a writ in the nature of quo warranto is
instituted the duty of the petitioner is to lay an information before the Court that such and
such officer has no legal authority to retain such office. For a petitioner who acts, in fact,
as an informer is not required to establish his locus standi to invoke the jurisdiction of the
Court. In this behalf reference may be made to Masood- ul-Hassan v. Khadim Hussain
and another (PLD 1963 SC 203). In this report it has been held that writ of quo warranto
in its nature is an information laying against persons who claimed or usurped an office,
franchise or liberty and was intended to inquire by what authority he supported his claim
in order that right to office may be determined."
8. In the instant case, the petitioner not only made an information about the process adopted
by the borrowing and lending authority in the manner not provided under the Law, Rules and
Regulations, but also asserted that he is entitled for the said office i n question, therefore, the
arguments of the learned counsel for the private respondents and learned AAG that instant writ
petition is not maintainable on the ground of locus standi of the petitioner, is not tenable. The
Hon'ble Supreme Court of Pakistan in the case titled 2013 SCMR 1752 observed that "no non-
civil servant can be transferred and appointed by way of deputation to any cadre. The learned
Additional Advocate General and learned counsel for the respondent No.4 contended that the
respondent No.4 b eing an employee of PTCL is civil servant and placed reliance on the case of
Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, M/O Information
Technology and Telecommunication and others, 2012 SCMR 152. The contention in this rega rd
has been considered. In the aforesaid judgment, the Hon'ble Supreme Court observed that
"Departmental employees on their transfer to Corporation becomes employees of the
Corporation under Section 9 of the Act of 1991 and then of the Company under Section 35 of the
Act of 1996. Their terms and conditions of service were fully protected under Section 9(2) of the
Act of 1991 and under section 35(2) of the Act of 1996, which are essentially statutory. Violation
of any of them would thus be amenable to the co nstitutional jurisdiction of the High Court" and
the writ petitions were remanded to the High Court. Whereas status of PTCL employees as civil
servants is concerned, the aforesaid judgment of the Hon'ble Supreme Court was considered by
the Hon'ble Five Mem ber Bench of the Hon'ble Supreme Court of Pakistan in the case of
P.T.C.L. etc. and others v. Masood Ahmed Bhatti and others, in Civil Review Petitions Nos.247
to 249 of 2011, wherein about the status of PTCL employees, it was observed as under:
"A fleetin g glance at the provisions quoted above would reveal that the departmental
employees on their transfer to the Corporation became employees of the Corporation
under section 9 of the Act of 1991 and then of the Company under Section 35 of the Act
of 1996. Their terms and conditions of service were fully protected under Section 9(2) of
the Act of 1991 and under section 35(2) of the Act of 1996. None of the terms and
conditions could be varied to their disadvantage as is provided by the sections reproduced
above. Not only that the legislature also bound the Federal Government to guarantee the
existing terms and conditions of service and rights including pensionary benefits of the
transferred employees. Since they by virtue of the aforesaid provisions became
empl oyees of the Corporation in the first instance and then the Company, they did not
remain Civil Servants any more. But the terms and conditions of their service provided
by Sections 3 to 22 of the Civil Servants Act and protected by Section 9(2) of the Act of
1991 and Sections 35(2), 36(a) and (b) of the Act of 1996 are essentially statutory.
Violation of any of them would thus be amenable to the constitutional jurisdiction of the
High Court. Though in the cases of Pakistan Telecommunication Engineer Phones,
Phones Division, Sukkur and another v. Muhammad Shahid and others (supra) it was
held that the departmental employees on their transfer to the Corporation and then to the
Company would continue to be the Civil Servants, but this interpretation does not appear
to be correct as they on their transfer became employees of the Corporation under Section
9 of the Act of 1991 and then of the Company under Section 35 of the Act of 1996.
Retention of their status as civil servants is thus not supported by the words used in the
aforesaid provisions."
9. From the above dictum of the Hon'ble Supreme Court of Pakistan, it is obvious that the
employees of the Company are not civil servants any more. In the instant case, in view of the
above, the respondent No.4 was non- civil servant and his transfer by way of impugned
deputation was contrary to law, as held by the Hon'ble Supreme Court in the judgment reported
in 2013 SCMR 1752.
10. Now adverting to the legality of the impugned Notification regarding deputation of the
respondent No.4, the summery of the Chief Minister for transfer / posting on deputation basis of
the respondent No.4 was initially processed on 17th December, 2014, which reads as under:
"The Hon'ble Minister for Local Government has desired that Mr. Fareed -ullah,
Technical Officer Engineering (BPS -17), PTCL, Office of General Manager Wireless
South Karachi may be transferred and posted in Local Government Department as
Assistant Director (BPS -17) on deputation basis.
2. In this regard, it is stated that as per Balochistan Local Government Amendment
Service Rules, 2013, method of recruitment against the post of Assistant Director (BPS -
17) is as under (F/A).
Sr.No. Nomenclature
of the post
with basic
pay scale
(BPS) Minimum
qualification
for initial
recruitment Method of Recruitment
1. Assistant
Director/
Planning
Officer (BPS -
17) Master's
Degree
(Second
Division) in
Statistics/
Economics
or equivalent
qualification
in the
relevant
subject from
a recognized
University. (a) 40% by initial recruitment. (b) 40% by
promotion from amongst the members of the
Service holding the post of Senior
Development Officer (BPS -17). (c) 20% by
promotion from amongst the members of the
Service holding the post Superintendent (BPS -
16)
3. At present one vacancy of Assistant Director (BPS -17) against the direct quota is
avail in Local Government Department.
4. The recommendee Officer is holding Degree in MSc Physics and MA Math's and
join Pakistan Telecommunication Company Limited (PTCL) Service in 1995 and
working as Technical Off icer (BPS -17) (Annexures -B, C and D). The Pakistan
Telecommunication Company Limited ( ) has conveyed NOC for the posting of above
named officer in Local Government Department as Assistant Director (BPS -17)
(Annexure -E). It is however appropriate to mention that Government of Balochistan
S&GAD vide letter No.22 -246/84/SO -I(S&GAD) dated 13th June, 2008 has imposed ban
following, including deputation (Annexure -F):-
Extension in contract appointment
New contract appointment
Deputation from Provincial Government Department to other Organization from other
Organization/Autonomous Bodies to Provincial Government Department.
Change of Cadre and absorption.
5. The Chief Minister is the authority for relaxation of ban in the subject case. The case is
submit ted for further orders of the Hon'ble Chief Minister."
11. The Secretary S&GAD Government of Balochistan on 5th January, 2015 regretted the
proposal of the administrative department in view of Paras Nos. 6 and 7, which are reproduced
herein below:
"6. The case has been examined. It is submitted that in 2005 Government sold out
26% of PTCL 's shares to Abu Dhabi based company Etisalat. Now the administrative
control of the company is in private hands. Therefore, NOC provided by PTCL in favour
of Mr. Fareedul lah does not serve the purpose. Instead, NOC of Federal Government i.e.
Ministry of Information Technology is required in the instant case.
7. The case does not come under deputation policy of Government of Balochistan as
Section 3(2)(d) envisages "No empl oyee of autonomous/semiautonomous bodies of the
Provincial / Federal Government, Ad hoc Employees or Contract Employees shall be
considered for deputation in any Provincial Government Department against regular
posts."
The Chief Minister/competent authority approved Para.9.
The respondent No.3, resubmitted Para No.5 of the Summery as under:
"Para -06 to 12/n Observations of S&GAD at paras 6 and 7 have been examined in Local
Government Department and following is submitted in this regard: -
Some of the officers/employees of PTCL who were posted/ transferred in other
Departments, their NOCs were issued by PTCL itself. For example, the PTCL has issued
NOC for following of its employees posted on deputation basis in Pakistan Council of
Research in Water Res ources (PCRWR), Islamabad and Establishment Division,
Islamabad respectively: -
1. Ms. Sadiya Qureshi
2. Mr. Abdul Jabar Sheikh
Even an employee of PTCL who worked on deputation basis, has permanently been
absorbed as Assistant Director (Accounts/ B -17) in the Wafaqi Mohtasib Secretariat,
Islamabad. His NOC was also issued by PTCL.
The Government of Pakistan, Ministry of Information Technology did not issue any NOC
in respect of above officers of PTCL.
Regular observation of S&GAD at para -7 above it is state d that Mr. Fareedullah is
regular employee of Federal Government who joined PTCL on transfer basis wherein the
terms and conditions of transferred employees have been guaranteed by the Federal
Government under the law and force as is evident from letter No .7-3/2011- Coord
Islamabad dated 05th April, 2013 of president/CEO PTCL Islamabad. Besides, those
employees (including applicant) who were transferred to PTCL on 01- 01-1996 are treated
as regular employees and their services are protected and guaranteed by Government of
Pakistan, Ministry of Law and Justice letter No.F.170/2013- Law--I dated 11th March,
2013. Para -5/n is re -submitted for kind perusal and orders, please.
Sd/
(HAFIZ ABDUL BASIT)
Secretary, LG
12. The respondent No.2 while supporting the proposal of Administrative Department
proposed its approval as under:
"From foregoing paras:
15. The case has been re- examined. Mr. Fareedullah, (BPS -17) was transferred from Federal
Government to PTCL on 1st January, 1996. According to the clarification given by Ministry of
Law and Justice, Government of Pakistan, the transferred employee of PTCL on 1st January,
1996 are to be guaranteed under the terms and conditions of services protected by the Federal
Government (F/K).
16. As the lending and borrowing department have agreed in the instant case therefore this
department supports the proposal of administrative department contained at Para -4 of the
Summary."
Sd/-
(HAF1Z ABDUL BASIT)
SECRETARY
13. The aforesaid proposal was approved by the competent authority and vide impugned
Notification dated 6th October, 2015, the respondent No.4 was taken on deputation and
thereafter vide Notification dated 16th November, 2015, he was further transferred and posted as
Planning Officer BPS -17 Director General Local Go vernment, Balochistan, Quetta.
14. The minute examination of above reveals that when initially summery of the respondent
No.4 for transfer by way of deputation was routed by the Secretary of the respondent No.3
namely Hafiz Abdul Basit on 17th October, 2014 the Secretary S&GAD namely Rizwan Memon
on 5th January, 2015 regretted the proposal on the ground mentioned hereinabove and the
Competent Authority approved the said proposal on 27th September, 2015. The record annexed
along with petition and parawise comments filed by the respondent No.3 further reveals that
during the period 4.6.2015 to 14.1.2016, Hafiz Abdul Basit besides holding the post of Secretary
i.e. respondent No.3 also holding the charge of Secretary of the official respondent No.2 i.e.
S&GAD a nd he during the above period, being Secretary of official respondent No.3 resubmitted
para No.5 of the summery of the respondent No.4 in response to paras Nos.6 and 7, of the initial
summery whereby the then Secretary S&GAD, namely Rizwan Memon vide para No.9 regretted
the proposal, however, this time Hafiz Abdul Basit being Secretary of S&GAD (respondent
No.2) on 6.7.2015 supported his own proposal and after approval of the Competent Authority, he
(Hafiz Abdul Basit) being Secretary of respondent No.3, is sued impugned Notification dated 6th
October, 2015 and 16th November, 2015 respectively, which shows lack of principle of due
process and fairness "one should not be a judge of his own cause".
15. The Deputation Policy of 2012, stipulates a balancing mecha nism for transfer of an
employ by way of Deputation. Rule 21(d) of the Policy, postulate, as under:
"(d) No employees of Autonomous/Semi Autonomous Bodies of the
Provincial/Federal Government, Ad hoc employees or contract employees shall be
considered for deputation in any Provincial Government Department against regular
post."
It appears that instead of following the deputation policy and responding the Para Nos.6
and 7 of the Summary, the Secretary of respondent No.3 re -submitted Para No.5 of the Summary
on the ground that two officials of PTCL namely Mst. Sadiya Qureshi and Abdul Jabbar were
posted/ transferred in Water Resource (PCRWR) Islamabad. Such contention of the respondent
No.3 in presence of deputation Policy was unwarranted and was contrary to the policy in
question. Decision by one province regarding of matter could not be acted as a ground, for
discrimination. Each Province is autonomous under the constitution to make its own laws,
particularly to Civil Service, the Rule framed by Federal Gove rnment and respective Provincial
Government, in such like, circumstances cannot be acted to make out a case of discrimination.
The respondent Government has to remain with its own law, Rule and Regulation to be followed.
Reference in this respect is to be made to the judgment reported in 2013 SCMR 304, wherein the
Hon'ble Supreme Court of Pakistan observed as under:
"As regards the question of discrimination, it may be pointed out that each Province is
empowered and entitled to make its own decision regardi ng the subjects that fall within
their respective domain in accordance with their own circumstances. A decision by one
Province regarding any matter cannot be cited as a ground for discrimination of another
Province does not take the same decision. To hold otherwise would be an intrusion into
the provincial economy of the Provinces. Now that the subject of Zakat and Ushr is
within the domain of the Provinces, it is to each Provincial Government to decide the
terms and conditions of the petitioners' services ."
16. In the instant case, the official respondent No.3, while filing parawise comments at para
No.10 replied as under:
"The Respondent No.4 (Mr. Fareedullah) is a regular employee of Federal Government
who joined PTCL on transfer basis wherein the terms and conditions of transferred
employees have been guaranteed by the Federal Government under the law and force as
is evident from letter No.7 -3/2011- Coord Islamabad dated 05th April, 2013. Besides,
those employees (including Mr. Fareedullah) who were trans ferred to PTCL, on 01- 01-
1996 are treated as regular employees and their services are protected and guaranteed by
Government of Pakistan, Ministry of Law and Justice letter No.F.170/2013- Law-I dated
11th March, 2013. It is pertinent to mention here that Sy ed Alim Raza Naqvi, an
employee of PTCL working as Assistant Director (BPS -17) in Wafaqi Mohtasib
(Ombudsman)'s Secretariat Islamabad on deputation basis, absorbed in Wafaqi Mohtasib
(Ombudsman)'s Secretariat Islamabad on 3rd March, 2015."
17. It is the in stance of the official respondent No.3 that respondent No.4 is a regular
employee of the Federal Government, but no NOC had been obtained from the Federal
Government i.e. Ministry of Information Technology (Lending Department) to meet the
objection of the then Secretary S&GAD, which aspect further indicates mala fide and motivated
consideration to bypass the relevant provision of Law, Rules and Regulations.
Estacode Clause 2 of SL 21 -A (Edition 2007) and Balochistan Deputation Policy, 2012
provides, if no suitable person is available to a post in a department, it may be filled in the public
interest through deputation by way of transfer in consultation with his appointing authority. It is
clear that deputation necessitates only in the public interest/exigen cy of service. In the instant
case, the summery floated by the official respondent No.3, indicates as under:
"The Hon'ble Minister for Local Government has desired that Mr. Fareed -ullah,
Technical Officer Engineering (BPS -17), PTCL, Office of General Manag er Wireless
South Karachi may be transferred and posted in Local Government Department as
Assistant Director (BPS -17) on deputation basis."
Under the Balochistan Government Rules of Business, 2012 (Rules of Business), the
Minister has got no authority to demand deputation or transfer of a particular employee on his
whims. The relevant Rules 2(d), 4, 6 and 8(g) of Rules of Business, 2012 are reproduced herein
below:
2(d) "Business" means all work done by the Government;
3.(1) Each Department shall consist of a Minister, a Secretary to the Government and of
such other officials subordinate to him as the Government may determine;
Provided that the same person may be Secretary of more than one Department;
(2) The Secretary shall, by means of standing orders, distribute the work of the
department among the officers, branches and/or sections. Such orders may specify the
cases or class of cases which may be disposed of by an officer subordinate to the
Secretary;
6.(1) Minister
A. Minister shall:-
(a) be responsi ble of policy matters and for the conduct of business of his
Department;
Provided that in important political, economic or administrative matters, the Minister
shall consult the Chief Minister;
(b) submit cases to the Chief Minister through Chief Secretary as required by the
provisions of these rules;
(c) keep the Chief Minister informed of any important case disposed of by him
without reference to the Chief Minister: and
(d) conduct the Business relating to his Department in Assembly.
8(g) where the Minist er's orders appear to involve a departure from rules, regulations or
Government policy, resubmit case to the Minister inviting his attention to the relevant
rules, regulations or Government policy and if the Minister still disagrees with the
Secretary, the Minister shall refer the case to the Chief Minister through Chief Secretary
for orders. "
Rule 8(g) of Rules of Business states that the Secretary shall assist the Minister when the
Minister's order appears to involve a departure from laws regulation or Government policy, he
shall resubmit the case to the Minister inviting his attention to the rules, regulations or the
Government policy. It is the duty of the Secretary concerned while submitting a case for the
orders of the Minister, to suggest a definite line of action in the light of Rules of Business, 2012.
It is also the duty of the Secretary to follow the policy, guidelines and direction of the particular
executive adhering to the Constitution, Law and Rules of Business. The Secretary should
discharge his function within the sphere of relevant provision of law and not be influenced by
unauthentic, misuse of power by any authority. The Minister, in the circumstances, has no
authority under the Rules of Business to demand deputation by way of the transfe r of a particular
employee on his whims without adhering to law. The Hon'ble Supreme Court of Pakistan in the
case of Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others, PLD 2013
SC 195 observed as under:
"We reaffirm that while civil servants do have a duty to follow the policy guidelines and
directions of the political executive yet, because of Article 5 of the Constitution, just like
other citizens, their foremost duty is "obedience to the Constitution and the law", not
unthinking obedience to all directives (right or wrong) issuing from the political
executive. In this context Rule 5(10) of the Rules of Business, 1973 framed by the
Federal Government in accord with Articles 90 and 99 of the Constitution, may be
examined: "When the Secretary submits a case to the Minister, the latter may accept the
proposal or views of the Secretary or may over -rule him. The Secretary will normally
defer to the decision of the Minister and implement it. In case, however, the Secretary
feels that the decision of the Minister is manifestly wrong and will cause gross injustice
or undue hardship, he may state his reasons and re -submit the case to the Minister. If the
Minister still adheres to his earlier decision and the matter is important enough, the
Secretary shall request the Minister to refer the case to the Prime Minister and the
Minister shall so refer the case for orders of the Prime Minister. If the case is not referred
to the Prime Minister, the Secretary shall submit it directly to the Prime Min ister with
observations of the Minister -in-Charge." In other words, implementation of policy or
directives, in some cases may be required notwithstanding the considered views of a civil
servant to the contrary. In such event, however, the civil servant should record his/her
honest and considered opinion without fear. Decisions violating the law relating to
appointment and terms and conditions of service of civil servants which are manifestly
wrong and are likely to cause gross injustice or undue hardship should be considered
important enough for the purpose of Rule 5(10) ibid."
In the case of Syed Mazar Abbas Jaffery v. Secretary to the Government of Punjab and
another (2006 SCMR 606), the Hon'ble Supreme Court of Pakistan held that "the duty of the
public officer is to independently discharge their function and not be influenced by "dictatorial
misuse of powers" at the hands of political figures. In the case reported as Zahid Akhtar v.
Government of Punjab through Secretary, Local Government and Rural Devel opment, Lahore
and 2 others, PLD 1995 SC 530, the Hon'ble Supreme Court of Pakistan observed as under:
"The fact that the transfers were made in violation of policy directive of the Government,
which has the status of a Rule, and provisions of Rule 21(2) i bid, were not followed
strictly, opened the door for the Government servant concerned to bring in outside
influences to obtain the desired transfers. We are also sorry to note that the Secretary
LG&RD, neither resisted these unethical and undesirable moves of his subordinates nor
he pointed out to the Hon'ble Minister incharge, that the transfer orders made by him
from time to time in respect of various officers of his department were neither in
conformity with the declared policy of Government nor these tr ansfer orders conform to
the provisions of Rule 21(2) of the Rules of Business, ibid. It was the duty of the
Secretary LG&RD to have pointed out to the Minister concerned the extent of his
authority in such matter, besides bringing to his notice that such frequent transfer of a
Government servant could neither be justified as the exigencies of service nor it could be
described in the public interest. We are constrained to observe that such unconcerned and
lukewarm attitude on the part of Head of a Government Department is not expected to
promote discipline or efficiency in the department. On the contrary such attitude may
have a demoralizing effect on his subordinates encouraging them to seek intervention and
favours of outside agencies, which may ultimately adversely affect the overall discipline
and efficiency in the department. We, therefore, expect that the guidelines mentioned in
the policy directives of the Government referred to above and the provisions of Rule 21
of the Rules of Business, ibid, will be kept in view by all concerned while dealing with
the transfers of Government servants. The office is directed to send a copy of this
judgment to the Government of Punjab for circulating it to all its Departments, for future
guidance. With these observati ons, this petition stands dismissed as not maintainable."
18. In the instant case, the matter related to deputation of the respondent No.4 had been dealt
with in violation, contrary to the Deputation Policy, 2012 and Rules of Business as well and total
with favoritism. The deputation of the incumbent was not based on public interest or any
exigency of service but was for the whims of the Minister, which born no nexus with the spirit
and object of the policy of governing with the deputation and the same has been violated.
The direction of the Minister for deputation of the respondent No.4 without any lawful
reason has no bearing either with the exigency of the service or with good administration of the
department. The impugned Notification of appointment of the respondent No.4 on deputation
could neither be justified on the claim of Deputation Policy, 2012 nor was sustained under the
Balochistan Rules of Business, 2012.
In view of the above, the Constitutional Petition No.1139 of 2015 is partly allowed, the
impugned Notification dated 6th October, 2015 for transfer of the respondent No.4 on deputation
and subsequent Notification dated 16th November, 2015 respectively are declared without lawful
authority and having no legal effect. The official respondents ar e directed to make regular
appointment/promotion to the post in question in accordance with law.
ZC/63/Bal. Petition allowed.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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