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Official Citation: 2024 IHC 194478
Court / Jurisdiction: Islamabad High Court
Parties: Dr Saif ur Rehman vs Pakistan etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 IHC 194478. In this matter between Dr Saif ur Rehman and Pakistan etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Miangul Hassan Aurangzeb) AUTHOR JUDGE: Honourable Mr. Justice Miangul Hassan Aurangzeb DECISION DATE: 02-DEC-2024 CASE NO: Writ Petition-3614-2024 CITATION: 2024 IHC 194478 PARTIES: Dr Saif ur Rehman VS Pakistan etc LAW / SECTION: - SUBJECT: Service, Other REMARKS: Seeks set aside the inquiry dated 16-05-2024 issed by Res. 02. ============================================================ ORDER SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT W.P. No.3614 of 2024 Dr. Saif Ur Rehman Versus Pakistan and others
S. No. of order / proceedings Date of order / Proceedings Order with signature of Judge and that of parties or counsel where necessary. 02. 02.12.2024 M/s Afnan Karim Kundi and Muhammad, Advocates for the petitioner. Mr. Abdul Khaliq Thind, learned Deputy Attorney - General. Mr. Azmat Bashir Tarrar, learned Assistant Attorney-General. Mr. M.B. Sanghi, DS(H -I) and Omer Farooq Ran, Director (Legal), Ministry of NHSR&C. Mr. Muhammad Abou Bakar Khan, Superintendent, PIMS / respondents No.3&5.
Through the instant writ petition the petitioner, Dr. Saif Ur Rehman , impugns the initiation of discip linary proceedings against him through inquiry order dated 16.05.2024 signed by the Additional Secretary, Ministry of National Health, Services, Regulations and Coordination (“Ministry of NHSR&C” ). The primary ground on which the said inquiry order has be en challenged is that the said inquiry order has not been signed by the “departmental authority,” which according to the learned counsel for the petitioner is the Secretary, Ministry of NHSR&C. 2. In ord er to demonstrate that the instant petition is maint ainable, the learned c ounsel for the petitioner drew the atte ntion of the Court to Section 4 of the Service Tribunal Act, 1973 and submitted that the petitioner could only assail before the Fed eral Service Trib unal an order passed by the “departmental authority” and none other; that the Expla nation to the said section provides that the “departmental authority” means 2 W.P.No.3614/2024
any authority which is competent to make an order in respect of any of the terms and conditions of civil servants; that Rule 2(1)(c) of the Civ il Servants (Efficiency and Discipline ) Rules, 2020 defines “authority” as the appointing authority; that the petitioner’s appointing authority is the Secretary, Ministry of NHSR&C in terms of Rule 6 of the Civil Servants (Appointment, Promotion and Transf er) Rules , 1973 (“APT Rules” ), and not the Additional Secretary; that in terms of Rule 2(xviii) of the Rules of Business, 1973, “Secretary” would mean the Additional Secretary only where there is no Secretary available; that in the judgments reported as 2014 PLC (C.S.) 604, 2016 PLC (C.S.) 1184 and 2017 PLC (C.S.) 1128 , it has been held inter alia that a writ petition against an order not passed by a “departmental authority” is maintainable; and that in the presence of the Secretary, the Additional Secretary could not have issued the inquiry order; and that the Secretary could not delegate his powers in issuing inquiry order to the Additional Secretary. 3. On 25.11.2024, this Court issued notice to the respondents. Furthermore, learned Additional Attorney-General was requested to assist the Court on the next date of hearing. 4. Paragraph 5(1) of the Secretariat Instructions empowers the Secretary to determine the maximum extent of delegation of powers to officers serving under him and issue clear standing o rders laying down these powers and also the manner of disposal of cases in the Division. The Secretariat Instructions are issued in exercise of the powers conferred by Rule 5(15) 3 W.P.No.3614/2024
of the Rules of Business, 1973. In exercise of the power conferred by the sai d Secretariat Instructions, office order dated 24.08.2022 was issued by the Ministry of National Health Services Regulations & Coordination ( “Ministry of NHSR&C”) whereby certain administrative powers for the disposal of official business, including the po wer of the Secretary on the subject of “discipline / conduct” for officers in BS- 17 to BS-18 have been delegated to the Additional Secretary whereas the power with respect to officers in BS-19 and above a re reserved with the Secretary. The aforementioned d ocuments were brought by the learned Assistant Attorney - General. 5. Learned counsel for the petitioner submitted that when the Secretary is available , his powers cannot be delegated to the Additional Secretary. 6. As far the argument of the learned couns el for the petitioner that the Secretary in terms of Rule 2(a) read with Rule 6 of the APT Rules acts on behalf of the President and therefore he could not delegate his powers any further, there is no basis for such submission in the Civil Servants Act and/or the rules made thereunder. In terms of Rule 6, the appointing authority of an officer in BS-17 to BS -19 is the Secretary of the Ministry or Division concerned. There is no prohibition on the Secretary to delegate his powers in the manner permitted by t he Secretariat Instructions, which are issued under the Rules of Business, 1973. If the petitioner considers the office order dated 24.08.2022 to be an impediment before him, or if he considers it adversely impacting on his terms 4 W.P.No.3614/2024
and conditions of service, he can assail the same before the Service Tribunal in view of the law laid down by the Hon'ble Supreme Court in the case of I.A. Sherwani (1991 SCMR 1041). 7. As regards the petitioner’s reliance on the judgment reported as 2016 PLC (C.S.) 1148 , the same has been set -aside by the Hon'ble Supreme Court vide order dated 03.10.2016 passed in civil appeal No.15-Q/2016. 8. On account of the bar contained in Article 212 of the Co nstitution, I hold that the instant petition is not maintainable and consequently, the same is dismissed with no order as to costs.
(MIANGUL HASSAN AURANGZEB) JUDGE Sultan*