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Petitioner: ROOMANA GUL KAKAR VS Respondent: NATIONAL ASSEMBLY SECRETARY OF PAKISTANHonorable Justice Riaz Ahmad Khan,Saadat Hassan Khan
2014 P L C (C.S.) 929
[Islamabad High Court]
Before Riaz Ahmad Khan, J
ROOMANA GUL KAKAR
Versus
NATIONAL ASSEMBLY SECRETARY OF PAKISTAN and others
Writ Petition No.3176 of 2013, heard on 9th December, 2013.
(a) National Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1973---
----R. 7(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Deputation---Repatriation to parent department---Scope---Inquiry proceedings against deputationist---No repatriation to parent department till completion of inquiry proceedings---Civil servant/petitioner, who was serving in her parent department in a Province, was taken on deputation in the National Assembly Secretariat---Prior to completion of her deputation period she was repatriated back to her Provincial parent department due to some inquiry proceedings against her, and she was directed to ensure her presence as and when required in connection with inquiry pending against her---Legality---Order of civil servant's repatriation was passed in presence of an inquiry---Repatriation of civil servant was only possible after consultation with the Provincial Government [Rule 7(2) of National Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1973], which consultation had not taken place in the present case---Impugned order meant that civil servant would have to attend the inquiry proceedings by coming from her Province to Islamabad---Impugned order of repatriation was thus illegal---Since inquiry proceedings were pending against civil servant, therefore, till the completion of the same, she could not be repatriated to her Provincial parent department---Impugned order of civil servant's repatriation was set aside in circumstances---Constitutional petition was allowed accordingly.
(b) National Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1973---
----R. 7(2)---Deputation---Civil servant from a province serving in National Assembly Secretariat on deputation---Repatriation to Provincial parent department---Scope---Repatriation of such a civil servant was only possible after consultation with the Provincial Government.
Petitioner in person.
Muhammad Anwar Mughal, Raja Khalid Mahmood Khan, Standing Counsel, Saadat Hassan Khan, Officer Incharge (Litigation) National Assembly for Respondents.
Date of hearing: 9th December, 2013.
JUDGMENT
RIAZ AHMAD KHAN, J.--- This judgment is directed to dispose of Writ Petition No.3176 of 2013.
2. Brief facts of the case are that the petitioner, Ms. Roomana Gul Kakar, Assistant Professor (Botany), Directorate of Colleges Higher and Technical Education, Quetta was taken on deputation for a period of three years in the National Assembly Secretariat w.e.f. 5-12-2009, on usual terms and conditions. Her deputation period was extended for a further period of two years w.e.f. 5-12-2012. Prior to completion of her deputation period, she was repatriated vide three successive Notifications dated 2-8-2013. For the sake of convenience, the Notification is reproduced herein below:---
NOTIFICATION
No.G(417)/Estt.I.(232).--- Ms. Roomana Gul Kakar, an officer of (BS-18) of Balochistan Government Education Department, Quetta, presently working as Deputy Secretary (Subject Specialist) in the National Assembly Secretariat on deputation basis, is repatriated and relieved to report to her parent department with immediate effect.
2. However she will ensure her presence as and when required in connection with the inquiry pending against her.
The petitioner challenged the said Notifications through the present writ petition. In the present case, pre-admission notice was issued to the respondents on 5-8-2013 and interim relief to the effect that operation of three successive impugned notifications of even date i.e. 2-8-2013 shall remain suspended with further direction to the respondents not to obstruct the petitioner in performing her duties at present place of posting till further orders, was granted. The said interim order was challenged before Hon'ble Supreme Court of Pakistan. The Hon'ble Supreme Court of Pakistan vide order dated 11-10-2013 maintained the interim relief, however, direction was issued to this Court for disposal of the main petition.
3. Learned counsel for the petitioner submitted that Sub-Rule (2) of Rule 7 of National Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1973 provided that in any exceptional case, the Secretariat may, after consultation with the Federal Government or, as the case may be, the Provincial Government concerned, revert an officer to his parent Department to which he belongs to his regional post before the expiry of the period of his tenure. Relying on this Rule, learned counsel submitted that though the respondents could repatriate the petitioner prior to completion of her deputation period, but for that purpose, consultation with the Provincial Government of Balochistan, was, a pre-requisite. In this case, no such consultation had been made. It was further submitted that even in the Notifications, it was alleged that there were some proceedings pending against the petitioner, so till the completion of those proceedings, the petitioner could not be reverted back to her parent department. The respondents though under the Rules could suspend the petitioner, or send her on forced leave, but could not revert her back to her parent department. On completion of the proceedings, the report was to be sent to her parent department. In the present case, on one hand, the petitioner was repatriated and on the other hand, she was asked to attend the proceedings pending against her, so it would not be possible for the petitioner to attend those proceedings by coming from Balochistan to Islamabad. It has also been submitted that the repatriation is based on malice, as the performance of the petitioner was upto the mark, but due to personal grudge and mala fide reasons, she had been ordered to be repatriated.
4. On the other hand, learned standing counsel assisted by learned counsel for respondents relying on case-law Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad through Chairman and others [2010 SCMR 378] submitted that in absence of any specific provision of law, deputationist could not be asked to serve total period of deputation and he could be repatriated being a deputationist by competent authority in the interest of exigency of service as and when so desired and such order of competent authority could not be questioned.
5. I have heard learned counsel for the parties and have also perused the record.
6. The impugned order shows that there was some departmental enquiry pending against the petitioner. The repatriation order is conditional and it has been provided that the petitioner will ensure her presence as and when required during enquiry proceedings. It obviously means that the petitioner will have to attend the proceedings by coming from Balochistan to Islamabad. Since the enquiry proceedings are pending, therefore, till the completion of enquiry, the petitioner cannot be repatriated to her parent department. It is also to be noted that repatriation of the petitioner is possible only after consultation with the Government of Balochistan. In the present case, the order of repatriation has been passed in presence of enquiry and without any consultation, therefore, the order is illegal. The impugned Notifications are, therefore, set aside and the petition is accordingly accepted with no order as to cost.
MWA/25/Isl. Petition allowed.