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Petitioner: AZRA JAMALI and others VS Respondent: FEDERATION OF PAKISTAN through Secretary M/o JUDGMENT
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Miangul Hassan Aurangzeb Title:AZRA JAMALI and others vs FEDERATION OF PAKISTAN through Secretary M/o
JUDGMENT
Reported As: 2016 C.L.R. 573, PLJ 2016 Islamabad 464 Result: Appeal dismissed Judgment JUDGMENT ' Miangul Hassan Aurangzeb, J.--Through the instant Intra Court Appeal, twelve appellants have impugned the judgment dated 29.05.2015, passed by the learned Single Judge in Chambers, whereby the appellants petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, was dismissed. 2.The appellants, in their writ petition, prayed for the grant of the relief reproduced herein below:- "In view of the foregoing, it is respectfully prayed that the impugned Recall Notices/Orders (Annex- I) may kindly be set aside and be declared to be of no lawful authority and the Respondent Federation be directed to continue the service of the Petitioners in terms of the Policy of 2015 and the Strategic Trade Policy Framework 2012-2015 for a period of at least four years, subject to performance evaluation. The Respondent Federation be directed to carry out performance evaluation of the Petitioners. ' The Respondent Federation and LUMS be restrained from causing conduct of the test pursuant to the Notice for Applications by 25-04-2015 (Annex-L) for selecting individuals to replace the Petitioners. ' Any other order deemed to be just and fair may also kindly be passed." 3. The appellants pleaded that they are serving as Trade Officers at various overseas diplomatic missions of Pakistan; that the appellants were so appointed through a transparent competitive process, which included an examination and an interview; that in the said competitive process, candidates from the public and private sector participated in the test carried out by the Lahore University of Management Sciences; that after emerging successful in the test, the appellants were
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appointed as Trade Officers in terms of the Policy for Selection and Monitoring of Trade Officers approved on 01.02.2005 and supplemented by the Strategic Trade Policy Framework 20022015; that the appointment letters issued to the appellants were subject to the said Policy Framework where under the tenure of the appellants was to be for an initial period of two years, and at the end of this period, a final extension of two years could be given, subject to performance; that Strategic Trade Policy Framework 2002-2015 provided that the service of the Trade Officers would be subject to annual performance evaluation having both qualitative and quantitative aspects with the possibility of recalling the three lowest performing Trade Officers. 4. That it was further pleaded by the appellants that in the 15th meeting of the Senate Standing Committee on Commerce and Textile Industry held on 29.05.2014, the Federal Government took the position that the Trade Officers appointed under the Policy of 2005 and the Strategic Trade Policy Framework 2002-2015 were entitled to a further tenure of two years upon satisfactory performance evaluation at the end of the first two years of their appointments; that in the past the Trade Officers appointed by the Federal Government have served for a term of four years; that the Hon'ble Federal Minister for Commerce, in the 110th Session of the Senate of Pakistan held on 06.02.2015 confirmed that the service of the Trade Officers was to be continued for a period of four years on the basis of performance evaluation. 5. The appellants a1 pleaded that after the change of the Government at the Federal level in May 2013, the appellants have been issued arbitrary and discriminatory recall notices; that after their appointments abroad, the appellants moved their families and organized their lives on the basis of the representation made to them that they would serve as Trade Officers for at least four years subject satisfactory performance evaluation; that the Federal Government issued the recall notices to the appellants after they had served as Trade Officers for two years without carrying out their performance evaluation; that the Federal Government has adopted a policy of pick and choose by extending the tenure of some Trade Officers whilst issuing recall notices to the appellants and thereby transgressing Article 25 of the Constitution; that the recall notices were in violation of the appellants' vested rights and legitimate expectations; that the Federal Government could not change the policy retrospectively and destroyed the appellants' vested rights. 6. The appellants have further pleaded that they are civil servants belonging to various occupational groups and that the post of a Trade Officer is not treated as a civil service/cadre post; that the post of a Trade Officer was made open to candidates not just in civil service; and that the Public Service Commission had no role to play in the appointment process of the Trade Officers. 7. The appellants were prompted to file a writ petition before this Court when the Ministry of Commerce issued a public notice, indicating that on 24.05.2015 the Lahore University of Management Sciences would conduct tests for the appointment to the posts of Trade Officers. The appellants apprehended that the consequence of such tests would be to arbitrarily cut shot their tenure as Trade Officers. 8. The learned Single Judge of this Court, dismissed the appellants' writ petition by holding that since further extension in the tenure of the appellants as Trade Officers relates to the appellants' terms and conditions of service and the policy of the executive branch, and that both matters are not amenable to the constitutional jurisdiction of this Court. Furthermore, it was held that the appellants had been informed at the time of their appointments that the initial period of their tenure was to be two years and that there was no dispute regarding the fact that the appellants had completed the two-year tenure. As regards the subjective assessment regarding the performance of the appellants, it was held that that matter too was within the exclusive domain of the executive and that this Court could not substitute the opinion of the executive authorities with its own. The appellants were held to have no vested right to be posted at a particular place.
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9. Mr. Baz Muhammad Kakar learned ASC for the appellants, made his submissions in reiteration of what was pleaded before the learned Single judge of this Court. The said judgment dated 29.05.2015 was impugned, inter-alia, on the ground that in view of the law laid down in the case of Orya Maqbool Abbasi vs. Federation of Pakistan, reported as 2014 SCMR 817. Secretary Establishment Division vs. Aftab Ahmad Manika reported as 2015 SCMR 1006. Liaqat Ali Chughtai vs. Federation of Pakistan reported as PLD 2013 Lahore 413, the High Court had the jurisdiction in the instant case to adjudicate upon the matter. It was further argued that the impugned judgment was per incuriam as it was contrary to the law laid down in the said judgments. He contended that the policies and guidelines adopted by the Government were binding and the vested rights created thereby could not be disturbed. The sheet anchor of his submissions was that the appellants could be recalled after serving as Trade Officers for two years Unless and until their performance was evaluated and they were found not up to the mark, and that unless such a performance evaluation had been carried out, the appellants had a vested right to complete a period of four years as Trade Officers. 10. Syed Hasnain Ibrahim Kazmi learned Deputy Attorney-General, defended the judgment dated 29.05.2015, passed by the learned Single Judge of this Court, by contending that the writ petition filed by the appellants was not maintainable in view of the bar contained in Article 212 of the Constitution as the matter related to the terms and conditions of service of the appellants. However, he submitted that the competent authority had already appointed Trade Officers to replace the appellants. These new Trade Officers were appointed as a consequence of a competitive process and a test conducted by the Lahore University of Management Sciences. On 12.01.2016, after briefly hearing the learned counsel for the parties, this Court passed the following order: "The main grievance of the appellants in the instant appeal is that they have been issued recall notice without evaluation of their performance as in the terms & conditions of their appointment, it is provided that they have been appointed for two years which may be extended for another term of two years subject to evaluation of their performances. In reply thereto, learned D.A-G has submitted that performance evaluation of the appellants is under process, however, seeks a short adjournment in order to obtain instructions from the concerned respondent. ' Adjourned to 21.01.2016." 11. On 21.01.2016, the learned Deputy Attorney-General submitted a "Performance Evaluation and Monitoring Report" with respect to the twelve appellants. This report was stated to be verified by Mr. Afzal Raza, Assistant Chief (Stat), Ministry of Commerce, Islamabad. According to this report, other than Appellant No, 6 (Mr. Ameer Mohyuddin, Commercial Counselor at Narobi Kenya) and Appellant No, 10 (Mr. Zahid Ali Abbasi, Commercial Counselor at The Hague, Netherlands), there had been a decline registered in Pakistan's Exports to the countries where the appellants had been posted as Trade Officers. This Court after going through the said report adjourned the matter to 02.02.2016 for final arguments. 12. During the course of the final arguments, the learned Deputy Attorney-General produced Summary No, SO/Secy/2014, dated 30.05.2014 for the Prime Minister of Pakistan from the Secretary Commerce, Government of Pakistan, and on its basis submitted that the Ministry of Commerce maintains 50 to 53 Trade Offices in 35 countries abroad; that these officers are appointed for promoting and facilitating expansion of Pakistan's visible and invisible trade particularly exports, increasing investment in Pakistan, negotiating favorable market access conditions for Pakistani products and services in the country of posting, and improving the image of Pakistan especially in the business realm; that the selection of Trade Officers has remained a subject of considerable controversy and generated frequent complaints of lack of transparency in their appointment process; that there is a widespread dissatisfaction over the performance of most of the trade
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officers; that the last batch of 41 Trade Officers was selected in 2013; that in the allocation of stations, there were no criteria to match the qualification and experience of an officer with the specific job requirements in the country of posting; that considerations other than merit allegedly played a vital role in allocation of stations in the developed countries; that a large number of individuals (officers) with little or no relevant qualifications and/or professional experience in the field of trade promotion and commercial diplomacy, had been able to secure their selection as Trade Officers; that the sub-optimal performance of the Trade Officers was, therefore, a natural corollary; that the Sub-Committee of the Cabinet had, inter alia decided the closure of 8 Trade Offices at Athens, Baka, Port Louis, Cairo, Mexico City OIC Trade Mission Jeddah, Santiago and Tripoli. 13. The Ministry of Commerce, in the said summary, gave the following three options to the Prime Minister of Pakistan:-- (a) "All the officers may be allowed to complete the normal tenure of 4 years (2years + 2years extension). (b) All these officers may be immediately recalled and the posts may be included in the new selection process. (c) All the officers may be recalled on completion of their initial tenure of 2 years." 14. The Ministry of Commerce, recommended the adoption of the option at Paragraph (c) above, and solicited the approval of the Prime Minister of Pakistan. The Prime Minister considered the said Summary dated 30.05.2014 and approved the following procedure for the appointment of Trade Officers in the future:-- (i) "All posts of Trade Officers likely to fall vacant within a year will be advertised in leading national dailies, clearly specifying eligibility criteria in terms of educational qualifications, experience, age and so forth. (ii) All posts of Trade Officers shall be open for public and private sector candidates who are citizens of Pakistan. (iii) The existing system of a competitive test conducted by the Lahore University of Management Sciences shall continue; however, the test will be made more rigorous in consultation with the University. (iv) The minimum qualifying score in the test will be set at 60 percent. (v) Candidates qualifying the test will be called for an interview, which will be conducted by a committee to be constituted by the Prime Minister. (vi) Eighty percent weightage will be given to the competitive test and twenty percent weightage to the interview. (vii) Successful candidates well be given, in order of their merit, the option to pick the station of their choice from amongst available stations. (viii) The tenure for a Trade Officer shall be two years, which would be extendable for a maximum period of one additional year only on the basis of performance review on completion of two years. Ministry of Commerce may specify parameters for performance review before posting of fresh batch of officers." 15. In addition to the above, the Prime Minister was pleased to approve that the tenures of the Trade Officers presently serving in the foreign countries shall not be extended upon expiry of their current terms, and that the Ministry of Commerce should communicate this decision to the concerned officers immediately so as to provide them sufficient time to complete formalities and preparations for their departure. This decision was taken 10.02.2015. 16. The learned Deputy Attorney-General submitted that through the said decision dated 10.02.2015 of the Prime Minister, the Policy for Selection and Monitoring of Trade Officers stood changed and
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amended. He further submitted that the Rules of Business, 1973, permitted the respondents to depart from an important policy with the approval of the Prime Minister. 17. We have heard the arguments of the learned counsel for the parties and have perused the record with their able assistance. 18. We propose, first, to deal with the contention of the learned Deputy Attorney-General that the writ petition filed by the appellants was barred under Article 212 of the Constitution. Now Article 212(1)(a) of the Constitution empowers the legislature to make a law providing for establishment of tribunals to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. Under Article 212 (2) of the Constitution, the jurisdiction of this Court is barred in respect of any matter to which the jurisdiction such a Tribunal extends. Section 4 of the Federal Service Tribunal Act, 1973, provides for appeals to the Service Tribunal by a civil servant aggrieved of any order regarding the terms and conditions of his service. Section 4(1)(b) of the Federal Services Tribunal Act, 1973, expressly bars the Service Tribunal from entertaining appeals against the decisions of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post. 19. The appellants in this case seek an extension of two years to hold the posts of Trade Officers subject to their satisfactory performance to be determined through an evaluation process. In other words, the appellants want to hold the respondents to the representation contained in their letters of appointment as Trade Officers. Under paragraph 6 of the letters of appointment; it was provided that the tenure of the Trade Officers shall initially be two years, and that at the end of this period, and subject to performance, a final extension of two years may be given. Whether the appellants were fit or otherwise to hold the post of Trade Officers and for this purpose wanted their two-year performance to be evaluated in accordance with paragraph 6 of the letters of appointment was a matter, in our view, over which the Service Tribunal did not have appellate jurisdiction. Such a matter could lawfully be agitated by the appellants before the constitutional jurisdiction of this Court under Article 199 of the Constitution. Hence, we cannot bring ourselves to agree with the finding of the learned Single Bench of this Court that the jurisdiction of this Court qua the Matters agitated by the appellants in their writ petition was barred under Article 212 of the Constitution. As it is, perusal of the impugned judgment reveals that the learned Single Judge had also dismissed the writ petition on merits as indicated in paragraph 8 above. 20. We now proceed to decide the case on merits. The appellants based their case on the contents of Policy for Selection and Monitoring of Trade Officers, dated 01.02.2005 and approved by the Prime Minister on 03.03.2005 ("the 2005 Policy") as supplemented by the Strategic Trade Policy Framework 2002-2015. The appellants also rely on the terms of the appointment letters issued to the appellants which were subject to the said Policy Framework whereunder the tenure of the appellants was to be for an initial period of two years, and at the end of this period, a final extension of two years could be given, subject to performance. Reliance is also placed on the statements made by public functionaries before various fora that the two-year tenure of the appellants as Trade Officers may be extended for another two years based on the evaluation of their performance. 21. Some of the features of the 2005 Policy as supplemented by the Policy Framework were that the test for the selection of the Trade Officers was to be conducted by the Lahore University of Management Sciences and for the rest of the assessment including interview, the Special Selection Board would continue; the officers selected were to be given mandatory language training of the country of their posting in the National Institute of Modern Language, Islamabad, or any other institute approved by the Ministry of Commerce before their departure on their return, the Ministry of Commerce was to have the first, right of refusal to post these officers. For the present purposes,
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it is pertinent to mention that under the 2005 Policy as supplemented by the Policy Framework, the tenure of the Trade Officers was to be initially for two years with an extension of one year depending on their performance. Extension of more than one year could be considered depending on their performance. 22. These policies referred to hereinabove were changed and amended by virtue of the decision taken by the Prime Minister of Pakistan on 10.02.2015, whereby the tenure of the Trade Officers serving presently in foreign countries was not to be extended upon the expiry of their current term. Additionally, the Ministry of Commerce was required to communicate the said decision to the concerned officers immediately so as to provide them sufficient time to complete formalities and preparations for their departure. In compliance with the said decision, the Ministry, of Commerce on 30.03.2015, issued recall/readiness notice to the appellants to join the headquarters on completion of their tenure or selection of their replacement. The appellants were directed to retain the charge till the posting of their replacement. 23. The appellants, as prudent civil servants knew or ought to have known, that the. Rules of Business, 1973, made by the Federal Government in exercise of the powers conferred by Articles 90 and 99 of the Constitution provides in Rule 15(a) of Part C thereof that cases involving important policy or departure from important policy are required to be referred to the Prime Minister for approval. It is explained in the Note to the said Rule 15(a) that departure from policy includes departure from a previous decision of the Cabinet or the Prime Minister. As mentioned above, in the instant case, the Prime Minister through his decision dated 10.02.2015, made a departure from an important policy made with his approval on 03.03.2005 (i,e, Policy for Selection and Monitoring of Trade Officers approved on 01.02.2005 as supplemented by the Strategic Trade Policy Framework 2002-2015). This decision was taken in exercise of the powers vested in Prime Minister of Pakistan (on the recommendations of the Ministry of Commerce), by Rule 15(a) of Part C of the Rules of Business, 1973. 24. In the matter of Federal Government of the Islamic Republic of Pakistan vs. General (R) Parvez Musharraf, reported as 2014 PCr.LJ 684, it has been explained that Article 90(1) of the Constitution stipulates that the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers through the Prime Minister but at the same time Article 99 (3) of the Constitution empowers the Federal Government to make rules for the allocation and transaction of its business; that Article 99 (3) of the Constitution clearly provides that the executive, authority of the Federation i,e, the Prime Minister and the Federal Ministers, apart from taking direct decisions collectively, shall make rules to allocate and transact the business of the Federal Government; that Rule 3 of the Rules of Business pertains to the allocation of business to the Ministries and the Divisions, while Rule 5 pertains to transacting the business of the Federal Government; that this allocation and transaction of the business of the Federal Government is in fact a delegation of executive authority of the Federation from the Prime Minister to the Federal Minister; that the Federal Minister through the Secretary of his Division transacts business of the Federation within the sphere circumscribed by the Rules of Business without seeking recourse to the executive authority of the Federation as provided by Article 90(1) of the Constitution; that if an action is taken on the basis of the delegated authority within the-sphere of the Rules of Business which specify the business allocated to the Divisions, this leaves no room for seeking further sanction from the Prime Minister. 25. In the case of Tariq Aziz-ud-Din reported as 2010 SCMR 1301, the Hon'ble Supreme Court of Pakistan has emphasized that due weight was required to be given to Rules of Business, 1973, which had a constitutional sanction. And in the case of Amin Jan vs. Director-General, T&T, reported as PLD 1985 Lahore 81, it has been held that Rules of Business are based on public policy and designed
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to effectively safeguard State interests. To act in consonance with these Rules is a clear duty cast on all the. Divisions and Ministries of the Federal Government. 26. In the case of Sardar Muhammad vs. Federation of Pakistan, reported as PLD 2013 Lahore 343, it has been held. By the Hon'ble Lahore High Court at Paragraph 43 of the report as follows:- "43. Adherence to the rule of law, in general, and to the Rules of Business, in particular, in conducting its business determines the quality of governance of the government in power. Rules of Business flow out of the Constitution, and are the sinews of a workable government. Besides providing a departmental organogram of a workable democracy, these Rules are a fine weave of democratic principles including: participatory engagement, written and reasoned dialogue, divergence of opinion, open and transparent deliberations, etc. These Rules of Business besides providing a procedural manual for the Federal Government to conduct its business also act as constraints on governmental power." 27. Now Rule 15(a) of Part C of the Rules of Business, 1973, mandates that the making of an important policy or a departure from an important policy cannot take place unless and until approval in this regard is obtained from the Prime Minister. Hence, decisions pertaining to the making of an important policy or a departure there from stand of a higher pedestal from the ordinary business transacted by the government under the Rules of Business, 1973. It is not the appellants' case that the requisite sanction has not been obtained by the Ministry of Commerce from the Prime Minister of Pakistan in changing or making a departure from the earlier policy. Therefore, it needs to be determined whether this Court in its constitutional jurisdiction can interfere in the policy making process or strike down a change in the policy made by the Federal Government. 28. Through the Writ…
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