2024 P L C (C.S.) 1362
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ
ABDUL GHAFOOR KAKAR
Versus
Honorable BALOCHISTAN HIGH COURT, through Registrar and others
Service Appeal No.02 of 2018, decided on 30th July, 2020.
(a) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989) ---
----S. 5---Judicial Officer relieved from Judicial Service of one province placed at disposal of
Judicial Service of Islamabad Capital Territory ---Ante -dated promotions, entitlement to ---
Scope ---Judicial Officer, who earlier served in Balochistan Subordinate Judiciary, was
presently posted at Islamabad under Islamabad High Court ---Judicial Officer (Additional
District and Sessions Judge) was deniedante -dated promotion, when he was Judicial Officer
on the payroll of Balochistan High Court (BHC) ---Plea of the Appellant (Judicial Officer)
was that he was entitled to ante -dated promotions in the light of the judgment of the
Balochistan High Court /Balochistan Subordinate Judiciary Services Tribunal (SJT) dated
25th April 2016 reported as PLD 2016 Bal. 56 ---Question was whether the appellant being
employee of the Islamabad High Court (IHC), and when his services were being run by
Islamabad Judicial Service Rules, 2011, could be extended benefit of said Judgment of the
Balochistan High Court (BHC) ---Held, that Record revealed that the appellant was
permanently appointed as Judicial Officer by the IHC within the Islamabad Capital Territory
and he had also been granted promotion and presently was working as Additional Sessions
Judge ---After being relieved by the BHC, his services were placed at the disposal of the IHC -
--Admittedly, the appellant was neither transferred by BHC nor he was posted on deputation
basis, nor he had obtained any lien from BHC ---Appellant was already appointed by IHC in
Islamabad, by clearly mentioning that his services would be governed by the Islamabad
Judicial Service Rules 2011, thus no order in favour or against the appellant could be passed
when he was no more the employee of the District Judiciary of Balochistan ---Pertinently, the
appellant was appointed as Civil Judge -cum-Judicial Magistrate Islamabad and he had
already been promoted to the post of Additional District and Sessions Judge ---Appellant had
failed to make out a case in his favour ---Appeal, filed by judicial officer, being merit -less,
was dismissed, in circumstances.
Engineer Hafeezullah v. C.E.O. (PTCL) and others 2011 SCMR 442 ref.
(b) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989) ---
----S.5---Judicial Officer relieved from Judicial Service of one province placed at disposal of
Judicial Service of Islamabad Capital Territory ---Ante -dated promotions, entitlement to ---
Scope ---Judicial officer who earlier served in Balochistan Subordinate Judiciary, was
presently posted at Islamabad under Islamabad High Court ---Judicial officer (Additional
District and Sessions Judge) was denied ante -dated promotion, when he was judicial officer
on the payroll of Balochistan High Court (BHC) on the plea t hat he was entitled to the such
ante-dated promotions in the light of the judgment of the Balochistan High Court /
Balochistan Subordinate Judiciary Services Tribunal (SJT) dated 25th April 2016 reported as
PLD 2016 Bal. 56 ('judgment -in-question') ---Appellant had sought promotion from the date
when the other Judicial Officers of BHC were given promotion, as he claimed that he was the
permanent employee of BHC ---Validity ---Stance of the appellant did not carry any weight,
on the ground that at the time of p assing of the judgment -in-question, he was no more part of
the Balochistan Subordinate Judiciary, rather his services being a Judicial Officer at
Islamabad were under the IHC and run by the Islamabad High Court Rules, 2011 ---This
appointment was made after his appearance before the Judicial Selection Board and
thereafter being relieved by the BHC, thus, he had relinquished all his right, if any, and could
not press his right for promotion before the Balochistan High Court either with back date or
on a strength of implementation of the judgment -in-question retrospectively in his favour ---
Appellant had failed to make out a case in his favour ---Appeal, filed by judicial officer,
being merit -less, was dismissed, in circumstances.
(c) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989) ---
----S.5---Judicial Officer relieved from Judicial Service of one province placed at disposal of
Judicial Service of Islamabad Capital Territory ---Ante -dated promotions, entitlement to ---
Scope ---Judicial Officer who earlier served in Balochistan Subordinate Judiciary, was
presently posted at Islamabad under Islamabad High Court ---Judicial Officer (Additional
District and Sessions Judge) was denied ante -dated promotion, when he was Judicial Officer
on the payroll of Balochistan High Court (BHC) ----Plea of Appellant Judicial Officer was
that he was entitled to the such ante -dated promotions in the light of the judgment of the
Balochistan High Court / Balochistan Subordinate Judiciary Service Tribunal (SJT) dated
25th April 2016 reported as PLD 2016 Bal. 56 ('judgment -in-question') ---Validity ---Even if
the stance of the appellant was accepted, and his case was ordered to be placed before the
Administrative Committee and Promotion Committee, even then his case could not be
considered, as the promotion of an office is made on the basis of one's Performance
Evaluation Report (PER) or Annual Confidential Report (ACR), and observing his judicial
work, but in the case in hand after his appointment in the IHC, neither his PER/ACR since
2011 was available on record nor he had performed as Judicial Officer in the province of
Balochistan ---It was also the verdict of judgment -in-question, that the cases of the Judicial
Officers be referred to the Administrative Committee and on referring the same, the
Administrative and Promotion Committees decided the cases on the basis of their
performance report and judicial work ---Appellant had failed to make out a case in his favour -
--Appeal, filed by judicial officer, being merit -less, was dismissed, in circumstances.
(d) Balochistan Civil Servants (Confirmation) Rules, 2012) ---
----Rr.2(g) & 6(2) ---Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989), S.
5---Judicial Officer relieved from Judicial Service of a Province placed at disposal of
Judicial Service of Islamabad Capital Territory ---"Lien" ---Scope ---Termination of Lien ---
Pre-requisites ---Judicial officer who earlier served in Balochistan Subordinate Judiciary, was
presently posted at Islamabad under Islamabad High Court ---Judicial Officer (Additional
District and Sessions Judge) was denied ante -dated promotion, when he was Judicial Officer
on the payroll of Balochistan High Court (BHC) ---Plea of Appellant (Judicial Officer) that
he was entitled to such ante -dated promotions in the light of the judgment of the Balochistan
High Court / Balochistan Subordinate Judiciary Services Tribunal (SJT) dated 25th April
2016 reported as PLD 2016 Bal. 56 ('judgment -in-question') ---Validity ---Record revealed
that the appellant had not availed any lien from the BHC, rather in the concerned relieving
notification, it was clearly mentioned that "they were hereby relieved without lien in parent
Department/High Court of Balochistan" ---"Lien" means the title of a civil servant to hold
substantively a post on which he has been confirmed under R. 2(g) of Balochistan Civil
Servants (Confirmation) Rules, 2012 ---Under R.6(2) of Balochistan Civil Servants
(Confirmation) Rules, 2012 , an employee on substantive appointment to any permanent post
acquires a lien on that post and ceases to hold any lien previously acquired on any other post -
--For termination of lien of a permanent civil servant from his original department, three
prerequisites have to be satisfied which are (i) the civil servant concerned has joined other
department on regular basis; (ii) joining the other department is result of his selection; (iii)
the selection is through a regular selection process ---If the said conditions are satisfied and a
civil servant has consented for such joining, he would have no claim about his lien in the
previous department after expiry of probationary period ---Subordinate -Judiciary Service
Tribunal, on examination of the case of appellant on said touchstone of the criterion for
termination of lien, viewed that the appellant could not retain lien in BHC after joining the
services under the IHC on regular basis ---He was neither transferred on temporary basis nor
was on deputation, whereupon, he would be entitled to the benefit as permissible to an
employee on lien ---Appellant had failed to make out a case in his favour ---Appeal, filed by
judicial officer, being merit -less, was dismissed.
Muhammad Ishaq Nasar for Appellant.
Shai Haq Baloch, Additional Advocate General for Respondents.
Date of hearing: 10th July, 2020.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----Through this judgment, we
are proposed to dispose of Service Appeal No.02 of 2018 filed by the appellant, seeking
ante-dated promotion, when he was judicial officer on the payroll of High Court of
Balochistan.
2. Appellant, Abdul Ghafoor Kakar, Additional District and Sessions Judge presently
posted at Islamabad, through instant appeal under section 5 (wrongly mentioned in the appeal
as Section 4) of the Balochistan Subordinate Judiciary Services Tribunal Act, 1989 and Rule
1990, has impugned the recommendations of Promotion Committee dated 09th November
2016, approval of Administration Committee dated 27th March 2017, and the Notification of
even date of the High Court of Balochistan, Quetta (BHC), with the following prayer:
"In light of the facts and law discussed in detail hereinabove, it is respectfully prayed
that the ante -dated promotions of the appellant may kindly be ordered retrospectively
in the light of the judgment of Honorable Balochistan High Court reported as PLD
2016 Bal. 56 as it was implemented retrospectively in terms of appealing and non -
appealing Judicial Officers, specially, in terms of the private respondents; and the
ante-dated promotion of the appellant may kindly be sanctioned by duly notifying the
appellant as per the contents of the judgment uptill 05.10.2011 so far the appellant
remained Judicial Officer of Balochistan High Court, in the interest of justice, equity
and fair play.
Any other relief which this forum deems fit may kindly also be granted."
3. In essence, the grievance of the appellant is that in the light of judgment rendered by
the Balochistan Subordinate Judiciary Services Tribunal (SJT) on 25th April 2016 the case of
ante-dated promotion of thirteen (13) Judicial Officers were considered and they were
promoted as District and Sessions Judges on the basis of recommendations of Promotion
Committee vide Minutes of Meeting dated 09th November 2016, but case of the appellant
despite being topper and senior most in his batch -mates was not considered by the promotion
committee, which is ultra vires to the constitution.
4. Learned counsel for the petitioner inter alia contended that the petitioner is entitled
for the relief in the light of referred to judgment of SJT, whereby thirteen judicial officers
were granted ante -dated promotions; that the cases of all judicial officers, who were
appointed on the recommendation of Balochistan Public Service Commission (BPSC), were
referred to the Administration Committee of the BHC, and subsequently, the cases of judicial
officers were considered, but the appellant's case was even not placed before the Committee,
despite the fact that his case was at par with those of promoted judicial officers; that the
appellant deserves to be treated in similar manner according to a maxim 'a like shall be
treated alike' from the similar date, when the other judicial officers were promoted, for the
reasons that the appellant also remained a part of the District Judiciary of BHC; he finally
concluded for the relief as claimed for in the petition.
Conversely, the learned Additional Advocate General, vehemently contested the plea
so raised, he propounded that the appellant is no more part of the district judiciary since 05th
October 2011, rather he has been permanently absorbed by the Islamabad High Court against
the post of Judicial Magistrate; that the appellant neither availed the option of lien nor he was
on attachment on transfer basis or for that matter on deputation, hence, once an employee
leaves a department permanently, he cannot seek any relief retrospectively, especially for
promotion. He finally urged for dismissal of the appeal.
5. We have carefully examined the contentions so adduced on behalf of the parties and
perused the record of the case with eminent assistance of the learned counsel. The appellant
has approached this Tribunal seeking his ante -dated promotion in view of judgment of High
Court of Balochistan (PLD 2016 Balochistan 56) and it's instructive to read the relevant
passage, which states:
22. For the above reasons, without setting aside the impugned notification as a whole,
the appellants in all the service appeals as well as non -appealing Judicial Officers,
who were also appointed on regular basis, prior to the regularization of ad hoc
services of the private respondents, are hereby declared senior to the private
respondents, whose ad hoc services were regularized retrospectively in sheer violation
of all recognized canons of law and proprietary. After declaring the appellants as well
as non -appealing Judicial Officers as senior to the private respondents, their cases are
referred to the Administration Committee of the High Court of Balochistan for
consideration of their promotion to the next grade from the date when the respondents
were promoted.
6. The contention of the appellant is that he was regular judicial officer of the Province
and, therefore was entitled to get the benefit of the above referred judgment, but, when the
cases were placed before the Administrative Committee of the High Court, his case was even
not placed for consideration, nor the minutes of meeting contains any remarks/reasons or
comments/decision on his case. It is an admitted feature of the case that the appellant was
initially appointed by the BHC against the post of Judicial Magistrate on the recommendation
of the BPSC. However, in the year 2011, some posts of Civil Judge -cumJudicial Magistrate
(BPS -18) were announced by the Islamabad High Court, consequent thereto, the appellant
also opted to appear before the Judicial Selection Board of the Islamabad High Court
Islamabad (IHC), as such, obtained earned leave from the BHC, thereafter was also
appointed as a Civil Judge -cum-Judicial Magistrate (BPS -18) vide Notification No.
(6)/Admn/IHC/4867 dated: 15th October 2011. The Notification states:
"ISLAMABAD HIGH COURT, ISLAMABAD.
F.No. (6)/Admn/IHC/4867
Dated: 15 -10-2011.
NOTIFICATION
On the recommendations of the Judicial Selection Board of this court, the Hon'ble
Chief Justice of Islamabad High Court, Islamabad, in exercise of powers conferred
upon him rule 5(1) of the Islamabad Judicial Service Rules, 2011, is pleased to
appoint the following Judicial Officers in Islamabad Judicial Service against
respective posts with basic pay scales, plus usual and special allowances as
admissible under the rules and as may be sanctioned by the Government from time to
time, from the date they assume charge of the post.
Sr. No. Name/Designation Appointed as
1 Mr. Muhammad Aamir Aziz Civil Judge,
Harnai (Balochistan) Civil Judge -cumJudicial
Magistrate (BPS -18)
2 Mr. Abdul Ghafoor Judicial Magistrate,
Pishin (Balochistan) Civil Judge -cumJudicial
Magistrate (BPS -18)
3 Mr. Anaytullah Judicial Magistrate, Bhag
(Balochistan) Civil Judge -cumJudicial
Magistrate (BPS -18)
4 Mr. Nasarumminallah Judicial Magistrate,
Barkhan (Balochistan) Civil Judge -cumJudicial
Magistrate (BPS -18)
5 Mr. Muhammad Shabir Judicial Magistrate,
Killa Saifullah (Balochistan) Civil Judge -cumJudicial
Magistrate (BPS -18)
2. The Officers Shall be governed by the Islamabad Judicial Service Rules, 2011.
3. The above offer holds good for a period of 15 days from the date of issuance of this
order. In case office is acceptable to the appointee, he should report to the Registrar,
Islamabad High Court, Islamabad, within the stipulated time period.
4. No TA/DA shall be admissible for joining.
BY ORDER OF HON'BLE CHIEF JUSTICE
(ATIQ -UR -REHMAN)
REGISTRAR"
7. In pursuance of afore referred notification, all the appointees were asked to report to
the Registrar, IHC, on acceptance of offer by them, the appellant also opted to join his new
job of Civil Judge -cum-Judicial Magistrate, Islamabad, and on his request the BHC vide
Notification dated 25th October 2011, relieved him alongwith other judicial officers from
their duties. The Notification reliving the appellant was to the effect:
"THE HIGH COURT OF BALOCHISTAN, QUETTA
No. __________/201 -Estt: Date the October, 2011
NOTIFICATION
In pursuance of Notification F. No. (6)/Admn/IHC 4866 and
F. No. (6)/Admn/IHC/4887, both dated 15.10.2011, of the Islamabad High Court,
Islamabad, the Hon'ble Chief Justice, High Court of Balochistan has been pleased to
relieve the following Judicial Officers, from their duties enabling them to join their
new assignments, with immediate effect: -
S. No. Name of Officers Designation
1 Raja Jawad Abbas
Hassan District and Sessions
Judge (BPS -21) District and Sessions
Judge, Loralai
1 Mr.Muhammad Aamir
Aziz Civil Judge -cum-
Judicial Magistrate
(BPS -18) Civil Judge, Harnai
2 Mr. Abdul Ghafoor Civil Judge -cum-
Judicial Magistrate
(BPS -18) Judicial Magistrate -I,
Pishin
4 Mr. Nasarumminallah Civil Judge -cum-
Judicial Magistrate
(BPS -18) Judicial Magistrate,
Barkhan
5 Mr. Muhammad Shabir Civil Judge -cum-
Judicial Magistrate
(BPS -18) Judicial Magistrate,
Killa Saifullah
2. They are hereby relieved without lien in parent Department/High Court of
Balochistan in view of Rule -20 (1) of Islamabad Judicial Service Rules, 2011 as
quoted by the Islamabad High Court in its letter No. Reg./IHC/2011/4886, dated
25.10.2011
BY ORDER OF HON'BLE CHIEF JUSTICE
(ZAHEER - UD-DIN
KAKAR)
REGISTRAR"
8. The sole question before us is whether the petitioner being employee of the IHC,
when his services are being run by Islamabad Judicial Service Rules, 2011, can be extended
benefit of Judgment of this court dated 25th April 2016. Perusal of the case file reveals that
the appellant was permanently appointed as judicial officer by the IHC within the Islamabad
capital territory and he has also been granted promotion and presently he is working as
Additional Sessions Judge Islamabad. After his relieving by th e BHC, his services are placed
at the disposal of the IHC. It is also an admitted feature of the case that the appellant was
neither transferred by this court nor he was posted on deputation basis, nor he had obtained
any lien from this court. The stance of the appellant that from the date when the other
judicial officers were given promotion, he was the permanent employee of BHC, also does
not carry any weight, solely on the ground that at the time of passing of the judgment by SJT
dated 25th April 2016, t he appellant was no more part of the Balochistan Subordinate
Judiciary, rather his services being judicial officer at Islamabad were under the IHC and run
by the IHC Rules, 2011, which appointment was made after his appearance before the
Judicial Selection Board and thereafter being relieved by the BHC, thus he had relinquished
all his right, if any, and could not press his right for promotion before the High Court either
with back date or on a strength of implementation of the judgment retrospectively in his
favour. It is imperative to add here that, even if the stance of the appellant was accepted, and
his case is ordered to be placed before the Administrative committee and promotion
committee, even then his case could not be considered, as the promotion of an office is made
on the basis of one's Performance Evaluation Report (PER) or Annual Confidential Report
(ACR), beside observing the judicial work of the judicial officer, but in the case in hand after
his appointment in the IHC, neither his PER/ACR since 2011 was available on record nor he
had performed as judicial officer in the province. It was also the verdict of this court in
judgment dated 25th April 2016, that the cases of the judicial officers be referred to the
Administrative Committee, and on referring the same, the Administrative and Promotion
Committees, decided the cases on the basis of their performance report and judicial work.
The appellant was already appointed by IHC in Islamabad, while clearly mentioning that his
services would be governed by the Islamabad Judicial Service Rules, 2011, thus no order in
favour or against the appellant can be passed when he is no more the employee of the District
Judiciary of Balochistan. The Hon'ble Supreme Court while dealing with an identical issue in
the case of "Engineer Hafeezullah v. C.E.O. (PTCL) and others (2011 SCMR 442), held that
"An in -depth scrutiny of record would reveal that petitioner himself at his own
applied for the post of Assistant Engineer in Public Health Engineering Department,
Govt. of Balochistan through Public Service Commission in view of the better future
prospects and selected and subsequently got himself relieved from PTCL. The learned
Advocate .Supreme Court was asked pointedly as to whether the petitioner was
compelled to leave the post which the petitioner was holding and the reply of learned
Advocate Supreme Court was that there was no such compulsion with the submission
that petitioner could not have been deprived from benefit of Volunteer Separation
Scheme (VSS). We are not persuaded to agree with such submission for the simple
reason that the petitioner had left PTCL under Volunteer Separation Scheme (VSS)
which was meant for serving employees of PTCL. Had the petitioner been in the
service of PTCL the position would have been different. The petitioner was probably
aggrieved due to non -promotion in PTCL but it is not the case of petitioner that he
was either ignored or superseded and hence could not be promoted which compelled
him to leave PTCL which was certainly due to bleak and remote chance for
promotion."
9. Albeit, the appellant had not availed any lien from the BHC, rather in the reliving
notification dated 25th October 2011, it was clearly mentioned that "they are hereby relieved
without lien in parent Department/High Court of Balochistan", but still in order to decide the
matter of the appellant keeping in view all aspect of the case, the question of lien was also
kept in sight. It is to be noted that "Lien" means the title of a civil servant to hold
substantively a post on which he has been confirmed (Rule -2(g) of Balochistan Civil
Servants (Confirmation) Rules, 2012). There is no cavil to the proposition that an employee
on substantive appointment to any permanent post acquires a lien on that post and ceases to
hold any lien previously acquired on any other post {(Rules 6 (2)}. It is also well -settled that
for the termination of lien of a permanent Civil Servant from his original Department three
prerequisites had to be satisfied which are as under:
(i) the Civil Servant concerned had joined other Department on regular basis;
(ii) the joining to other Department was result of his selection;
(iii) the selection was through a regular selection process.
If the above mentioned conditions are satisfied and a Civil Servant had consented for
such joining, he would have no claim about his lien in the previous Department after expiry
of probationary period. The case of petitioner has been examined on the touchstone of the
criterion as mentioned hereinabove and we are of the considered view that lien cannot be
retained in BHC after joining the services under the IHC on regular basis. He was neither
transferred on temporary basis nor was on deputation, whereupon, he would be entitled to the
benefit as permissible to an employee on lien.
10. As regard to the submission of the appellant for his promotion with back date when he
was employee with the BHC, it is to state that the referred to judgment dated 25th April
2016, wherein the matter was directed to be placed before the Administration Committee of
the High Court, thus the files of the judicial officers were placed before the committee, and
vide minutes of meeting dated 09th November 26, of Promotion Committee, the judicial
officers were promoted with antedate, however, the cases of some of the judicial officers
were deferred. The promotions allowed to the judicial officers were on the basis of their
performance and on assessment of their judicial record i.e. judgments/orders passed during
their judicial service, however, at the time of assessment of the personal service files of the
judicial officers, neither the appellant was part and parcel of the BHC, nor his record with
regard to his judicial career and performance report pertaining to those days was available. It
is also imperative to observe here that the appellant was appointed as Civil Judge -cum-
Judicial Magistrate Islamabad, and on consideration of his record, which even otherwise was
not possible, would/will have impact on his appointment order and would have direct impact
on his judicial career, for the reason that his service were totally at the disposal of the IHC,
wherein he has already been promoted to the post of Additional District and Sessions Judge.
The cumulative effect of the aforesaid discussion leads us to an irresistible conclusion
that the appellant has miserably failed to make out a case in his favour, therefore, the appeal
being bereft of any merit is hereby dismissed, but with no order as to costs.
MQ/128/Bal. Appeal 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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