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Official Citation: 2010 PLC(CS) 367
Court / Jurisdiction: SUPREME-COURT
Parties: Dr. SHAFI-UR-REHMAN AFRIDI vs C.D.A., ISLAMABAD through ChairmanHonorable Justice Javed IqbalSardar Muhammad Khurram Latif Khan Khosa,Abdul Karim Khan Kundi
This judicial decision was delivered by the SUPREME-COURT. The matter involves proceedings between Dr. SHAFI-UR-REHMAN AFRIDI and C.D.A., ISLAMABAD through ChairmanHonorable Justice Javed IqbalSardar Muhammad Khurram Latif Khan Khosa,Abdul Karim Khan Kundi, officially reported as 2010 PLC(CS) 367. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
2010 P L C (C
2010 P L C (C.S.) 367
[Supreme Court, of Pakistan]
Present: Javed Iqbal and Sarmad Jalal Osmany, JJ
Dr. SHAFI-UR-REHMAN AFRIDI
Versus
C.D.A., ISLAMABAD through Chairman and others
Civil Petition No.204 of 2009, decided on 2nd April, 2009.
(On appeal from the order, dated 10-2-2009 passed by the Islamabad High Court, Islamabad in Writ Petition No.1664 of 2008).
(a) Civil Servants Act (LXXI of 1973)---
----S. 10---Constitution of Pakistan (1973), Art.185(3)---Constitutional jurisdiction---Terms and conditions of service---Deputation---Repatriation before time---Civil servant went on deputation but he was returned to his parent department before termination of his period of deputation---Civil servant assailed order of termination of deputation before High Court in Constitutional petition, which petition was dismissed---Validity---In absence of any specific provision of law, deputationist could not ask 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---Provisions of Civil Servants Act, 1973, and rules made thereunder, as well as ESTACODE were silent about the fact that a deputionist must serve his entire period of deputation. and such omission seemed deliberate enabling the competent authority to utilize service of an employee in the manner as it might deem fit and proper---Period of deputation could at the best be equated to that of an expression of maximum period which could be curtailed or extended by competent authority and no legal or vested rights were available to a deputationist to serve his entire period of deputation in borrowing department---Question as to whether any valuable right whatsoever was accrued in favour of petitioner as deputationist did not squarely fall within the jurisdictional domain of competent authority and might be agitated subject to all legal exceptions---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.
Zain Yar Khan v. Chief Engineer 1998 SCMR 2419; Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330; Pakistan v. Fazal-ur-Rehman PLD 1959 SC (Pak.) 82; Sheikh Abdul Rahim's case PLD 1964 Lah. 376, Abdul Khaliq Anjum's case 1998 PLC (C.S.) 839; Government of Pakistan v. Prof. M.A. Saeed C.P.No.427-L of 1991 and Prof. M. Ashraf Khan Niazi v. Chairman Board of Governors, Allama Iqbal Medical College 2003 PLC (C.S.) 243. rel.
(b) Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition before High Court---Scope---Vested right---`Aggrieved person'---Deputation of civil servant---Scope---Civil servant has no vested right to complete deputation period and matter relating to terms and conditions of service---Constitutional jurisdiction as conferred upon High Court under Art.199 of the Constitution cannot be invoked---Deputationist cannot be treated as `aggrieved person' provided he was placed in the same grade and status in borrowing cadre which he was enjoying before his status of deputionist---Such civil servant has no vested right to remain on a post as deputionist forever or for a stipulated period as mentioned in notification and can be repatriated at any time.
Pakistan v. Moazzam Hussain Khan and another PLD 1959 SC 13; PLD 1964 (W.P.) Lah. 376; Abdul Qayyum v. Nasrullah Khan Draishak and others 1975 SCMR 320; Ala-ud-Din Akhtar v. Government of Punjab and another 1982 CLC 515; Ch. Muhammad Bakhsh v. Government of Punjab PLD 1989 Lah. 175; Ayyaz Anjum v. Government of Punjab and others 1997 PLC (C.S.) 123; 1997 SCMR 169; Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 PLC (C.S.) 124; 1997 SCMR 170; Abdul Khaliq Anjum v. Secretary Education 1998 PLC (C.S.) 839 and Muhammad Rafique v. Secretary Wafaqi Mohtasib's Secretariat, Islamabad and 2 others 1998 SCMR 2631 rel.
(c) Words and phrases---
----'Legal right'---Defined.
Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618; Anandrao v. Board of Revenue AIR 1965 Madh. Pra. 237; Daniel v. State 1968 AIR Mad 349 and Government of East Pakistan v. Federation of Pakistan PLD 1962 Kar. 353 rel.
(d) Civil Servants Act (LXXI of 1973)---
----S. 10-'Deputation'-Connotation---Deputation can be defined as an administrative arrangement between borrowing and lending authorities for utilizing services of an employee in public interest and exigency of services against a particular post---Deputationist cannot remain on deputation for an indefinite period or stipulated period in accordance with his own whims and wishes.
Sardar Muhammad Khurram Latif Khan Khosa, Advocate Supreme Court for Petitioner.
Abdul Karim Khan Kundi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1.
Nemo for Respondent No.2.
Date of hearing: 2nd April, 2009.
JUDGMENT
JAVED IQBAL, J.--- This petition for leave to appeal is directed against the order dated 10-2-2009 passed by the learned Chief Justice of Islamabad High Court, Islamabad in chambers whereby the Constitutional petition preferred on behalf of petitioner has 'been, dismissed.
2. Precisely stated the facts of the case are that petitioner who belongs to Office Management Group (OMG) was selected for deputation for a period of three years in Capital Development Authority (hereinafter referred to as "C.D.A.") for posting as Director Staff in the office of Chairman, C.D.A. The Establishment Division; Islamabad being parent Department of the petitioner relieved him by means of order dated 4-2-2008 enabling him to join his new assignments in C.D.A.. Pursuant to the said order the petitioner joined C.D.A. but his deputation period was terminated by the C.D.A. (borrowing Authority) vide order dated 26-12-2008 which is reproduced herein below for ready reference:---
"Capital Development Authority (Human Resource Development)
No.C.D.A.-4(1)(35) HRD/2008/SEC.1/-Islamabad 26th December, 2008
OFFICE ORDER.
Subject: Repatriation of Dr. Shafi-ur-Rehman Afridi a BS-18 Officer of Office Management Group presently posted as Director Staff, Chairman's Office C.D.A.
Dr. Shafi-ur-Rehman Afridi a BS-18 officer of Office Management Group presently posted as Director Staff, Chairman's office. C.D.A. is hereby repatriated and his services are. placed at the disposal of Cabinet Secretariat, Establishment Division for further posting with immediate effect. All concerned are requested to issue "No Demand Certificate" in respect of the above named officer.
Charge relinquishment report shall be submitted to HRD directorate accordingly.
This issue with the approval of Chairman, C.D.A.
(Muhammad Hayat Waraich) Deputy Director (HRD)"
3. Being aggrieved, a writ petition was preferred on behalf of petitioner which has been dismissed vide order impugned, hence this petition for leave to appeal.
4. Sardar Muhammad Khurram Latif Khan Khosa, learned Advocate Supreme Court entered appearance on behalf of petitioner and urged with vehemence that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that in the absence of any service exigency the petitioner could not have been repatriated without completion of stipulated period i.e. three years as mentioned in the Notification of even number dated 4-2-2008 issued by Government of Pakistan, Cabinet Secretariat, Establishment Division. It is also contended that the order dated 26-12-2008 repatriating the petitioner to his parent Department has been passed with mala fide intentions in order to accommodate one Mr. Muhammad Ayub whose services have been borrowed from the Planning Division. It is further argued that the order of repatriation could not have been passed by the C.D.A. being "Borrowing Department" without having written consent from the Establishment Division being "Lending Department" and moreso the consent of the petitioner was also mandatory as he was sent on deputation for three years and Notification of even number issued on 4-2-2008 by the Government of Pakistan, Cabinet Secretariat, Establishment Division can be equated to that of a tripartite agreement which could not have been violated or revoked unilaterally which aspect of the matter went unnoticed causing serious prejudice against the petitioner.
5. Mr. Abdul Karim Khan Kundi, learned Advocate Supreme Court appeared on behalf of C.D.A. and while controverting the view-point as portraited at Bar by Sardar Muhammad Khurram Latif Khan Khosa, learned Advocate Supreme Court for the petitioner contended that order impugned being well-based does not warrant interference as no vested or legal right of the petitioner has been infringed. He has further supported the order impugned for the reasons enumerated therein with the further submission that after abolition of the post of Staff Officer against which the petitioner was accommodated the petitioner has rightly been repatriated and besides that the issue of repatriation squarely falls within the jurisdictional domain of borrowing and lending Authorities and the petitioner has no right whatsoever td complete the period of deputation as mentioned in Notification of even number dated 4-2-2008. It is, further argued that in absence of any legal right of the petitioner the question of issuance of show-cause notice or proper opportunity of hearing does not arise.
6. We have carefully examined the respective contentions Las mentioned hereinabove in the light of relevant provisions of law and record of the case. There is no denying the fact that petitioner was sent on deputation' for a period of three years to C.D.A. for posting as Director Staff in the office of Chairman, C.D.A.. It is also an admitted feature of the case that the petitioner was relieved by the Establishment Division being his Parent Department by means of order dated 4-2-2008 enabling him to join the new assignment. Be that as it may, Sardar Muhammad Khurram Latif Khan Khosa, learned Advocate Supreme Court on behalf of petitioner was asked pointedly, at the outset that as to whether the petitioner has any vested or legal right to continue and serve as Staff Officer in the office of Chairman on deputation for a period of three years to which no satisfactory answer could be given except that proper opportunity of hearing was not afforded but failed to substantiate his contention by referring any specific provision of law that has been violated. He further argued that deputationist entails certain beneficial rights such as allotment of plot by C.D.A. according to the status and the petitioner could not have been deprived of all the benefits accrued in his favour being a deputationist.
7. We may mention here that the deputationist by no stretch of imagination and in absence of any specific provision of law can ask to serve the total period of deputation and he can be repatriated being a deputationist by the Competent Authority in the interest of exigency of service as and when so desired and such order of the competent authority cannot be questioned. The Civil Servants Act, 1973 and rules made thereunder as well as ESTACODE are silent about the fact that a deputationist must serve his entire period of deputation and this omission seems deliberate enabling the Competent Authority to utilize the service of an employee in the manner as it may deem fit and proper. The period of deputation can at the best be equated to that of an expression of maximum period which can be curtailed or extended by the Competent Authority and no legal or vested rights whatsoever are available to a deputationaist to serve his entire period of deputation in the borrowing Department. In this regard we are fortified by the dictum laid down in the following authorities:-
Zain Yar Khan v. Chief Engineer 1998 SCMR 2419, Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330, Pakistan v. Fazal-ur-Rehman PLD 1959 SC (Pak.) 82, Sheikh Abdul Rahim's case PLD 1964 Lah. 376, Abdul Khaliq Anjum's case 1998 PLC (C.S.) 839, Government of Pakistan v. Prof. M.A. Saeed C.P.No.427-L of 1991, Prof. M. Ashraf Khan Niazi v. Chairman Board of Governors, Allama Iqbal Medical College 2003 PLC (C.S.) 243.
8. We have also examined the controversy from another angle that as to whether the Constitutional petition was maintainable or otherwise? As mentioned hereinabove it is well-settled by now that a civil servant has no vested right to complete the deputation period and matter relating to the terms and conditions of service, the Constitutional jurisdiction as conferred upon High Court under Article 199 of the Constitution of Islamic Republic of Pakistan cannot be invoked. In this regard reference can be made to the dictum laid down in the following cases:
Pakistan v. Moazzam Hussain Khan and another PLD 1959 SC 13, PLD 1964 (W.P.) Lah. 376, Abdul Qayyum v. Nasrullah Khan Draishak and others 1975 SCMR 320, Ala-ud-Din Akhtar v. Government of Punjab and another 1982 CLC 515, Ch. Muhammad Bakhsh v. Government of Punjab PLD 1989 Lah. 175, Ayyaz Anjum v. Government of Punjab and others 1997 PLC (C.S.) 123, 1997 SCMR 169, Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 PLC (C.S.) 124, 1997 SCMR 170 and Abdul Khaliq Anjum v. Secretary Education 1998 PLC (C.S.) 839.
9. It is worth-mentioning that a deputationist could not be treated as an aggrieved person provided he had been placed in the same grade and status in borrowing cadre which he was enjoying before his status of deputationist. It may not be out of place to mention here that a deputationist has no vested right to remain on a post as deputationist forever or for a stipulated period as mentioned in the notification and can be repatriated at any time. In this regard reference can be made the case titled Muhammad Rafique v. Secretary, Wafaqi Mohtasib's Secretariat, Islamabad and 2 others 1998 SCMR 2631.
10. Let we make it clear that what does the term "legal rights" means. "A legal right is that right which is recognizable and enforceable at law. A legal right is less abstract than the conception which is represented by the unqualified word `right', because the unqualified word includes both juristic and legal conceptions. The juristic 'conceptions have their source in and pertain to what is idealistic, or to the world order as a whole, or to the social order in principle. They come out of what Prof. Roscoe Pond has called "culoudcuckootown", while legal conceptions and legal rights pertain to an actual legal order. These two kinds may sometimes fall far apart because while the former belongs to the science of law, the latter belongs to a particular system of law. Hence jurists may hold different ideas as to them without affecting the law. The two kinds of conceptions meet when the provisions of a particular legal system need to be better understood by breaking them up, like a beam of light, into the waves of thought, by passing them, as it were through the prism of jurisprudence. The diffraction that is achieved is both realistic and colourful". Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618. "The term includes rights conferred by Statute as well as not merely rights which are claimed independently of any statute. Anandrao v. Board of Revenue AIR 1965 Madh. Pra. 237. The term legal right was also discussed in case titled- Daniel v. State 1968 AIR Mad. 349 with the following observations:---
"(1) In its strict sense is one which is an ascertainable claim, enforceable before Courts and administrative agencies; (2) In its wider sense, a legal right has to be understood as any advantage or benefit conferred upon a .person by a rule of law; (3) There are legal rights which are not enforceable, though recognized by the law; (4) There are rights recognized by International Court, granted by International Law, but not enforceable; and (5) A legal right is a capacity of asserting a secured interest rather than a claim that could be asserted in the Courts."
11. The term "legal rights" was also examined in case titled Government of East Pakistan v. Federation of Pakistan PLD 1962 Kar. 353 as under:-
"The term "legal right" obviously means a right recognized by law and capable of being enforced by the power of the State, but not necessarily in a Court of law. It is a right of a party recognized and protected by a rule of law, the violation of which would be a legal wrong done to his interest and respect for which is a legal duty, even though no action may actually lie."
12. On the touchstone of the criterion as discussed hereinabove the case of petitioner has been examined and we are of the considered opinion that petitioner has no legal right whatsoever and therefore, the question of its recognition or enforcement does not arise. We have no' hesitation in our mind .to hold that deputation can be defined as an administrative arrangement between borrowing and lending Authorities for utilizing the services of an employee in the public interest and exigency of services against a particular post and the deputationist cannot remain on deputation for an indefinite .period or stipulated period in accordance with his own whims and wishes.
13. The question as to whether any valuable right whatsoever was accrued in favour of petitioner as deputationist not squarely falls within the jurisdictional domain of competent authority and may be agitated subject to all legal exceptions.
14. In view of what has been discussed hereinabove, this petition being devoid of merits is dismissed and leave refused.
M.H./S-45/SC Petition dismissed.