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Petitioner: Flt. Lt. FARRUKH RASHID VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, ISLAMABADHonorable Justice Ch. Muhammad IlyasAbdul Rahim Bhatti,Ehsanul Haq
2007 P L C (C.S.) 1145
[Federal Service Tribunal]
Before Ch. Muhammad Ilyas and Muhammad Javed Ashraf Hussain, Members
Flt. Lt. FARRUKH RASHID
Versus
SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and another
Appeal No.1410(R)(C.S.) of 2005, decided on 8th May, 2007.
Civil Servants Act (LXXI of 1973)---
----Ss. 5 & 11---Service Tribunals Act (LXX of 1973), S.4---Appointment----Termination of service---Appeal---Principle of locus poenitentiae---Application of---Appointment of appellant as A.S.P., was neither challenged nor made contingent upon any future development---Appointment letter issued to appellant was indicative of the fact that there was no protest from any official quarter including Federal Public Service Commission against his appointment---Appellant was allowed to complete his training and qualify Final Passing Out Examination conducted by Federal Public Service Commission---Nobody had challenged his appointment. and he continued to serve from 14-7-2003 to 31-3-2005, when he was terminated regardless of the principle of locus poenitentiae and due to none of his fault---Invoking the Principle of Locus Poenitentiae and having got a vested right in continuing with the job on the strength of established law in terms of dictum laid down vide 2003 SCMR 1128, appointment was perfectly in order and had been so declared and endorsed emphatically by both Law Division and the Attorney-General---Termination of appellant, in circumstances was ab initio illegal and devoid of justice in violation of principle of locus poenitentiae---Termination order was set aside with direction to authorities to reinstate appellant with effect from the, date of impugned order with all consequential benefits, subject to an affidavit by appellant to the effect that he was not gainfully employed during the intervening period.
2005 SCMR 57; 1996 SCMR 413; PLD 1992 SC 207; 1999 SCMR 1004; 1997 SCMR 15; 1996 SCMR 1413; 1990 SCMR 414; 1994 SCMR 2232 and 2003 SCMR 1128 ref.
Abdul Rahim Bhatti for Appellant.
Ehsanul Haq for Respondents with D.Rs. Mehboob Alam, Deputy Secretary, Abdul Hakeem Rahi, Section Officer, Establishment Division and Amin Tahir, Assistant Director, F. P.S.C.
Date of hearing: 21st February, 2007.
JUDGMENT
CH. MUHAMMAD ILYAS (MEMBER).--- The services of the appellant were terminated vide the impugned order, dated 31-3-2005. He filed a departmental appeal on 13-4-2005 which was not responded to within the statutory period. Hence, the instant appeal was filed on 9-7-2005.
2. The permission for amendment was accorded to the appellant on 22-5-2005 to implead the Federal Public Service Commission (F.P.S.C.) as respondent No.2-A and exclude Mr. Omar Hamid Khan, Deputy Secretary, Establishment Division, Islamabad from the list of respondents. The amended appeal was filed on 6-12-2005.
3. Briefly stated the background of the case is that;
(1) The scope and criteria for induction of officers of the Armed Forces in civil service as contained in paras.(b), (c) and (g) of the D.O. No.10(1)/91-CP-1 of the Cabinet Secretariat, Establishment Division, Government of Pakistan, Islamabad, dated 8-9-1991 and issued with the approval of the .Prime Minister of Pakistan was as reproduced below:--
"(b) Induction will be allowed only in the following occupational group:--
(i) District Management Group (D.M.G.), (ii) Foreign Services of Pakistan (F.S.P.), (iii) Police Service of Pakistan (P.S.P.).
(c) Induction will be 10% annual vacancies in each of these groups with a minimum of 2 vacancies in each group.
(g) The F. P.S.C. will select officers and allocate them occupational group on the basis of psychological test, viva-voce/regional and provincial quota."
(2) In implementation of the above criteria, the following decisions were taken by the F. P. S. C. in its meeting held on 10-9-1991: (emphasis added)
"(5) As regards observance of Regional/Provincial quota, one view was that these vacancies be filled on merit, while the majority view was that quota should be observed in the best manner feasible, if the quotas were to be determined out of six expected vacancies, 3 may be allocated to Punjab, one to Sindh, one to N.-W.F.P. and one to the best officers from amongst those belonging to Balochistan, A.J.K. and N.A./FATA group altogether. As regards the Sindh vacancy, it could be allocated to Sindh (R) and Sindh (U) in alternate years so that balance was maintained over a period of time.
(6) The Representative of Ministry of Defence pointed out that previously out of 10 vacancies, one each used to be allocated to the Navy and the Air Force. He suggested that this pattern of sub-allocation amongst the three services may be adopted while making selection through F. P.S.C. as well. He further proposed that out of 6 vacancies, one each may be allocated to the officers belonging, to Navy and the Air Force and rest may be to the Army. This was agreed to in principle by the meeting subject to confirmation of Establishment Secretary in consultation with Ministry of Defence."
(3) The appellant had also competed for induction in 2001 against the vacancies earmarked for Armed Forces Officers and was placed at serial No.6 in the overall merit whereas in the inter se merit of the Pakistan Air Force (P. A.F.) Officers, he stood at Serial No.2. Since the other officer from P.A.F. with merit position No.4, namely Flt. Lt. Faraz Zaidi hailing from the Punjab slatedly refused to join P.S.P, vide his letter dated 6-11-2002, the appellant stood virtually at the top of the list of the P.A.F. Officers who qualified. The appellant accordingly staked a claim against the P.A.F. seat both on the basis of merit and Punjab domicile.
(4) After adjustment/deduction of two scats excluded owing to the decision for no induction/recruitment to be made in the D.M.G. the F.P. S. C. made the following allocations on 29-10-2002 against the remaining four seats of Defence Forces on the basis of Provincial/Regional quota and its service-wise sub-allocation as decided in such para. (2) above:
S.No.
Merit No.
Name and Designation
Department
Domicile
Allocated Group service
1
1
Capt. M. Osman tribal
Pak Army
N.-W.F.P.
F.S.P
2
2
Capt. Sulman Babar
Pak Army
Punjab
P.S.P.
3
12
Lt. Muquddus Haider
Pak Navy
Sindh (U)
P.S.P.
4
26
Fit. Lt. Muhammad Arif
Pak Air Force
AlK
P.S.P.
(5) As his name had not been recommended by the F.P.S.C., the appellant filed a representation on 30-10-2002 to the F.P.S.C., followed by another to the Establishment Division on 31-10-2002. In response to the latter, the Establishment Division wrote to the F.P.S.C. on 11-11-2002 for a correct implementation of the quota policy by giving 50% share to Punjab out of 4 seats as under: (emphasis added)
"Government of Pakistan Cabinet Secretariat Establishment Division
No.3/ 1/2002/CP7 Islamabad the 11th November, 2002.
Mr. Zafarullah Khan, Secretary, Federal Public Service Commission, Islamabad.
Subject: Induction of armed forces officers into civil services. Dear Sir,
I am directed to refer to the F.P.S.C's letter No.2/24/2002-CSS, dated 29-10-2002 on the above subject and to say that Provincial/Regional break up of 4 vacancies as per prescribed Provincial/Regional quota works out as under:--
Province/Region
Quota
No. of vacancies to be allocated
Share
Merit
10%
0.40./4
0.0
Punjab
50%
2.00/4
2.00
Sindh (U)
7.6%
0.30/4
0.0
N.-W.F.P.
11.5%
0.46/4
1.0
A.J.K.
2%
0.08/4
0.0
Sindh (R)
11.4%
0.46/4
1.0
Baloehistan
3.5%
0.14/4
0.0
N.A./FATA
4%
0.16/4
0.0
Total
100%
4.00%
4.0
(2) According to above calculation one more vacancy is required to be allocated for Punjab Province and the officer at S.No.6 of the F.P.S.C.'s merit list (Farrukh Rashid, Flg. Off.) from the Punjab Province is required to be 'adjusted against P.S.P. vacancy in place of officer at S.No.27 (Muhammad Arif Fit. Lt.) who has A.J.K. domicile. F.P.S.C. is requested to re-consider the allocation/distribution of officers of Armed Forces for induction in the P.S.P. as per prescribed Provincial/Regional quota/allocation and advice the Establishment Division accordingly.
(3) This issues with the approval of the competent authority.
Yours faithfully,
(Sd.) Muhammad Abdul Bari Deputy Secretary (C.P.-I)."
(6) As advised by the Prime Minister who was approached to over-rule the F.P.S.C. nomination and approve the Establishment Division proposal, a joint meeting of Chairman, F.P.S.C. and Secretary Establishment Division was later held on 13-1-2003 but no consensus could be reached as recorded in the minutes as following:--
"Federal Service Commission
Subject: Provincial/Regional allocation of seats earmarked for induction of officers of the Armed Forces in the P.S.P. and F.S.P.
A meeting was held in the office of the Chairman, F.P.S.C. on 13-1-2002 in pursuance of Establishment Division letter No.3/1/2002-CP-7, dated 11th November, 2002 read with letter of even number dated 11th January, 2002 addressed to Chairman F.P.S.C. to discuss the revised arrangements regarding Provincial/regional allocation of the seats to the officers of Armed Forces Foreign service of Pakistan and Police Service of Pakistan when no scat in the District Management Group had been made available by the Establishment Division in the C.E. 2001.
2. -----------------------------------------------------------------------------------
3. The Secretary Establishment Division was of the view that in the instant case of Induction of Armed Forces Officers into Civil Services in competitive Examination, 2001 F.P.S.C. had not adhered to the instructions issued by the Establishment Division vide their letter No.10(1)/91/CP.1, dated 8, 1991 and there was need to readjust their recommendations accordingly. A post of P.S.P. recommended by F.P.S.C. to A.J.K. was required to be allocated to Punjab. Moreover, as the existing system of allocation of scats was unfavorable to certain Federating Units thus, for future induction ~f Armed Forces Officers into the civil services we aught approach the Prime Minister to doing away the quota system in favour of merit.
4. The Chairman, F.P.S.C. clarified that allocations had been made according to the policy parameters approved by the Government and ibis criteria of allocation of posts had been in vogue since 1991 as contained in the approved minutes signed by the Deputy Secretary Establishment Division and countersigned by Chairman, F. P. S. C.
5. It was pointed out that before conducting the Competitive Examination 2001. of the Armed Forces Officers, F.P.S.C. vide their letter No.F.2/24/2002-CSS, dated 2-5-2002 conveyed to Establishment Division the modalities of Induction of Armed Forces Officers into civil services and at that time the Establishment Division did not point out any discrepancy. The F. P.S.C. had now completed the examination and drawn up the merit list, and that at this belated stake of questions were raised which should have been addressed earlier it would undermine the credibility of F.P.S.C. the Chairman, F.P.S.C. suggested that if five (5) vacancies are allocated instead of four (4) the additional scat could be allocated to the Punjab as a possible solution.
6. It was also clarified by the Chairman, F. P.S.C. that in case any fresh formula had to be followed in future then Ministry of Defence should also be consulted to avoid any unanticipated repercussion.
7. As both sides maintained their stated view-point, consensus therefore, could not be reached."
(7) A Writ Petition No.1034 of 2003 was thereafter filed by the appellant impleading F. P.S.C. for not recommending him and Government of Pakistan through Secretary Establishment Division in the Lahore High Court, Rawalpindi Bench for not offering him an appointment in the police service which was finally decided in his favour by the Honourable Lahore High Court, Rawalpindi Bench. The relevant para. of the judgment dated 18-6-2003 is as follows: (emphasis added)
"13. In view of the above this writ petition is allowed and the respondents are directed to apply the principles of para.l0 of the summary referred to hereinbefore uniformly to the case of induction of the officers of the Armed Forces of Pakistan to the available two posts of F.S.P. and two posts of P.S.P. for the year 2001 in supersession of the recommendation made by the F.P.S.C. through its Memorandum No.2/24/2002-CSS dated 29-10-2002. While so doing, the F.P.S. C. shall also keep in mind the provisions of para.6 of, the minutes of the meeting dated 10th September, 1991 referred to above as if will apply to the allocation of vacancies in the instant case. As the matter has already been protracted, the process shall be expedited."
8. The above decision was not challenged by the respondents and the Establishment Division made appointments based on merit alone, as Follows:--
Sl. No.
Merit No.
Name
Department
Domicile
1.
1
M. Usman Iqbal Capt.
Pak Army
N.-W.P.P.
2.
2
Sulman Babar Capt.
Pak Army
Punjab
3.
6
Farrukh Rashid Flt. Lt. P.A.F.
Punjab
4.
8
Muhammad Halal
Navy
N.-W.F.P.
9. The offer of appointment given to the appellant by the Establishment ~ Division vide their teller No.2(2)/2003-E-3(Police), dated 11-7-2003, is reproduced below: (emphasis added)
"Government of Pakistan Cabinet Secretariat Establishment Division
F.No.2(2)/2003-E-3(Police) ` Islamabad the 11th July, 2003
To Flying Officer Farrukh Rashid
Subject Offer of appointment to defence forces officer inducted in the police service of Pakistan BS-17) for year 2001 (30th C.T.P.).
On the recommendations of the Federal Public Service Commission the Competent Authority has been pleased to approve your induction in the Police Service of Pakistan along with the selected successful candidates of Competitive Examination, 2001. You are, therefore, offered appointment in the Police Service Pakistan under the Federal Government in the Basic Pay Scale 17 on the following terms and conditions:--
(i) You will be on probation for a period of two years or for such extended period as the Government may decide. The probationary period shall not be terminated until you have completed your initial as well as Specialized Training and have passed the prescribed Examinations, including the Final Passing out Examination which will be conducted by the F.P.S.C. after the conclusion of Specialized Training.
(ii) You will undergo training separately or collectively, as the' case may be in such training institutions and at such places and for such periods as the Government may specify. You are required to qualify every examination to the satisfaction of the head of the training institution where you will also undergo training. You will also be required to qualify the Final Passing Out Examination in the subjects approved by the Government.. .
(iii) You shall be governed by the provisions of the Occupational Groups and Service (Probation Training and Seniority) Rules, 1990.
(iv) If you fail to obey any orders which you may receive from the head of a training institution or from any faculty member of a training institution or an officer under whom you may receive field training or if you neglect your probationary studies, or you are found guilty of conduct unbecoming of an officer, you shall be liable for removal from service or to such disciplinary action as the Government may direct.
(v) -------------------------------------------------------------
(vi) -------------------------------------------------------------
(vii) -------------------------------------------------------------
(viii) -------------------------------------------------------------
(ix) On appointment to the civil post you will sever your connection with the Armed Forces."
He accepted this offer of appointment and reported for Common Training Programme (C.T.P.) on 28-7-2003 at the Civil Service Academy, Walton, Lahore.
(10) Lt. Muquddus Haider of Pak Navy who had been recommended by the F. P.S.C. against the Sindh (Urban) quota, was, on the other hand, not issued an offer of appointment. He, therefore, filed I.C.A. No. 135 of 2003 against the judgment of the Lahore High Court in Writ Petition No.1034 of 2003 with the appellant included as one of the respondents. That was dismissed in limine on 17-9-2003 whereupon he filed C.P.L.A. No.2016 of 2003 in the Supreme Court which was allowed vide order, dated 20-10-2004 reasserting the principle of Provincial/Regional quota instead of the merit alone and with the following direction:--
"In view of the above reasonings we find that the impugned judgment of the High Court cannot be sustained in law which is consequently set aside and the petition is converted into appeal and allowed. Petitioner Muquddus Haider son of Sajjad Haider shall be adjusted in P.S.P. Cadre in 2001 Batch and he shall be sent for relevant training accordingly in the concerned Academy."
He was accordingly adjusted in P.S.P. cadre in the 2001 Batch vide offer of appointment issued on 12-2-2005.
4. Synopsis of the ensuing numerous developments with a bearing on the arguments/discussion of the parties in the subsequent paras. of the judgment ace enumerated below chronologically with a full/partial reproduction of the correspondence/documents and emphasis added where necessary:--
(1) 6-1-2005 The appellant assumed the charge of the post of Assistant Superintendent Police (training) B-17 on 12-3-2004 in the Capital Territory Police, Islamabad after, completion of the C.T.P. and Initial Command Course at the National Police Academy, Islamabad and also stood formally struck off duty/retired from P.A.F., filed a Review Petition No.263 of 2004 statedly to forestall any adverse fallout for his appointment made in pursuance of the merit policy which had earlier been upheld by the Honourable High Court but reversed in the apex Court judgment.
(2) 10-1-2005 Establishment Division wrote to P.A.F. and Pakistan Navy for repatriation of appellant and Lt. M. Hilal.
(3) 11-1-2005 As had been apprehended by the appellant, a show-cause notice was issued to the appellant on 11-1-2005 by the Secretary, Establishment Division as to why his appointment having become irregular in view of the decision, dated 20-10-2004 of the apex Court not be terminated.
(4) 24-1-2005. Interim reply was given to the show-cause notice stating that the matter was subjudice in the Honourable Supreme Court through a Review Petition No.236 of 2004 and that the detailed parawise comments on the show-cause notice would be furnished on the final decision thereon and it was also maintained that the matter also involved .principles of estoppel and locus poenitentiae that "if the Government Department takes any action, that cannot be withdrawn or taken back, the right thus, accrued becomes the personal property of the individual and cannot be taken back."
(5) 26-1-2005 Lt. Muhammad Hilal from the Pakistan Navy with merit position No.8, who had also been appointed, on the basis of merit rather than in accordance with the quota policy, along with the appellant, was also issued an identical show cause on 11-1-2005 against which, he filed a writ petition in the Honourable Peshawar High Court with a prayer that the impugned show-cause notices be set aside being illegal, ab initio void and of no legal consequence.
(6) 31-1-2005 The Honourable Peshawar High Court issued orders dated 31-1-2005 that "not in the interim relief should also be issued for the date to be fixed by the office. Till then, show-cause notices issued by Establishment Division, Cabinet Secretariat, Government of Pakistan, Islamabad dated 11-1-2005 against the officials shall remain suspended".
(7) 12-2-2005 Appointment offer was issued to Lt. Muquddus Haider in pursuance of the Honourable Supreme Court's judgment dated 20-10-2004.
(8) 8-3-2005 Ministry of Defence wrote to the Establishment Division in response to their letter of 10-1-2005 (Serial No.2 above) for adjustment by repatriation of Lt. Muhammad Hilal and the appellant stating that "while N. A.H. Q. have conveyed their no objection to the adjustment of Lt. M. Hilal (P. N.O.5665) against anticipated billets of Pakistan Navy for the next year, A.H.Q. have opined that P.A.F. would not be able to allocate any of the anticipated vacancy to adjust Flt. Lt. Farrukh Rashid as process of selection for future induction of Air Forces Officers into civil services has already been finalized. Moreover, said arrangement will deprive new incumbents of their legitimate right". It was staffed that he could nevertheless seek his revision under the Air Force Instruction 26/77.
(9) 15-3-2005 Law Division's advice was accorded to Establishment Division on the Writ Petition No.94 of 2005 filed by Lt. (P.N.). Muhammad Hilal on 26-1-2005 as follows:--
"Advice/opinion of Law Division dated 15-3-2005
The Establishment Division did not expose the whole facts of the case in the present reference. Earlier the Establishment Division without awaiting the finality of the matter implemented the decision of the High .Court dated 18-6-2003 passed in Writ Petition No.1034 of 2003, and allowed the petitioner Mr. Farrukh Rashid to attend the training in Civil Services Academy and National Police Academy for two years. The Establishment Division vide the appointment letter dated 11-7-2003 issued to the petitioners did not mention/indicate that the appointment is being made in pursuance of the High Court order and the same will be subjected to the finality of the case. Accordingly the petitioner was relieved from his previous job from Pakistan Air Force and joined the above-mentioned institutions. The appointment letters issued by the Establishment Division had taken legal effects in favour of the petitioners. The Supreme Court has admitted in its judgment, dated 20-10-2004 that two posts shall be allocated to Punjab, and one of the petitioner (Farrukh Rashid) is already working against one of the allocated seats to Punjab. The Supreme Court in its reported judgment in 2005 SCMR 57 and 1996 SCMR 413 has held that once order is, rightly or wrongly passed the same cannot be recalled by the Department. Further as rightly opined by the referring division in para.4/N that Mr. Muquddus Haider has got a decision in his favour from the Supreme Court of Pakistan, and has already been adjusted without affecting the status of the two officers who have already been inducted into civil services, and show-cause notices issued to the two officers will create unsolvable administrative problems, and that due to action already taken by the department in favour of the two officers created a vested right in favour of these two officers. Prima facie the officers have the benefit of principle of locus poenitentiae for rendering the services as such.
"In view of the above facts, Establishment Division noting in para.4/N and citation of the Supreme Court judgments, the Establishment Division apparently has no case to defend the instant appellant Writ Petition 94 of 2004 filed by one Muhammad Hilal before the Peshawar High Court. It will be appropriate that they may withdraw the show-cause notices issued to the two officers, dated 11-1-2003 and inform the Peshawar High Court and get the petition dismissed having been infructuous."
(10) 31-3-2005 The services of the appellant were however, terminated by the Establishment Division on 31-3-2005. The appellant filed a Writ Petition No.1002 of 2005 in the Honourable Lahore High Court, Multan Bench impugning the show-cause notice, dated 11-1-2005 and termination order dated 31-3-2005 on the plea that the Honourable Supreme Court had not directed the respondent-Establishment Division to terminate his services and had instead only directed that Lt. Muquddus, the petitioner in writ petition before the Supreme Court be accommodated.
(11) 13-4-2005 The appellant submitted a representation to the Prime Minister of Pakistan which was forwarded to the Establishment Division on 21-4-2005.
(12) 21-6-2005 Appellant's Writ Petition No.1002 of 2005 (Serial No. 10 above) was dismissed as under:--
"(9) On the other hand, learned Standing Counsel for Federation along with Muhammad Naseem S.O. Establishment Division, have vehemently opposed the arguments of learned counsel for the petitioner, contending that the merit list was prepared by the F. P.S.C. and the petitioner had not been recommended by the P.S.P. ; that the petitioner had obtained the appointment under the direction of the High Court through its judgment which had been set aside by the Houourable Supreme Court of Pakistan and that order of the apex Court is final, hence, the matter cannot be reopened.
(10) I have heard the learned counsel for the parties and gone through the record with their kind assistance.
(11) Since the matter has already been dealt with by the Honourable Supreme Court of Pakistan and the judgment of this Court had been set aside, therefore, the…
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