Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2021 IHC 118
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2021
Decision Date: 2021-03-03
Parties: Khushdil Khan Malik vs Federation of Pakistan and two others
This judicial decision was delivered by the Islamabad High Court on 2021-03-03. The matter involves proceedings between Khushdil Khan Malik and Federation of Pakistan and two others, officially reported as 2021 IHC 118. 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.
Case cited as 2021IHC118
Court Name: Islamabad High Court Judge(s): Babar Sattar Title: Khushdil Khan Malik vs Federation of Pakistan and two others Case No.: Writ Petition No. 2822 of 2019 Date of Judgment:2021-03-03 Reported As: 2021 IHC 118 Result: Petition dismissed
JUDGMENT
JUDGMENT BABAR SATTAR, J. Through this petition, the petitioner has challenged notifications dated 08.07. 2019 and 09.07.2019. Through notification dated 08.07.2019, the petitioner , a BS-20 officer of Federal Government Educational Institutions (Cantonments/Garrisons) under Defense Division, Rawalpindi, who was posted at the time as Joint Secretary Textile Industry Divisio n, was directed to report to the Establishment Division. The notification dated 09.07.2019 was issued by the Ministry of Commerce and Textile relieving the services of the petitioner pursuant to notification dated 08.07.2019. 2. The petitioner has a history of litigation and the background facts regarding his case have been summarized by a learned Divisional Bench of this Court in I.C.A. No.859 of 2013 which are as under: "2. The facts, in brief, are that Mr. Khushdil Khan Malik (hereinafter referred to as the "respondent") was appointed against the post of Headmaster (BPS-1 8) on 24.12.1996 in the Federal Government Educational Institutions (Cants/Garrison) [hereinafter referred to as "parent Department"]. The latter falls under the administrative control of the Ministry of Defence. The respondent was posted as Deputy Secretary in the Federal Government on deputation basis with effect from 13-09-2004. The period of deputation was extended from time to time under section 10 of the Civil Servants Act 1973 (hereinafter referred to as the "Act of 1973" ). It appears, from the record, that, due to alleged complaints relating to misconduct, the respondent was repatriated to the parent Department on 03-02-2010 vide office Memorandum, dated 20-01-2010. The respondent was granted financial benefits of BPS-20 with effect from 25-10-2004 under the Four Tier Structure Formula. The respondent was again transferred to the Federal Government under section 10 of the Act of 1973 vide Notification, dated 01-11-201 1. The respondent filed a representation for his induction/absorptio n in the 'Secretariat Group'. However , his request was regretted by the Establishment Division on the ground that he was not eligible. The parent Department forwarded a summary to the Ministry of Defence for granting promotio n to the respondent on the basis of meritorious service. The Ministry of
---
## Page 2
Defence, vide office Memorandum dated 24-06-2015, sought the advice of the Establishment Division. The latter had observed in the said memorandum that the respondent was transferred vide Notification dated 29-07-2013 without seeking its concurrence or that of the parent Department. Moreover , it was also observed that the respondent had barely served in BPS-19 and 20 in his parent Department. In response the Establishment Division, vide office Memorandum dated 17-12-2015, informed that since the respondent had not rendered meritorious service in his parent cadre, therefore, he was not eligible for being promoted on meritorious basis. The respondent filed W.P. No. 828/201 1 seeking a writ regarding his induction/absorption in the Secretariat Group besides challenging Notification dated 03-02-201 0 whereby he was repatriated to his parent Department. While the constitutional petition was pending the respondent was transferred under section 10 of the Act of 1973 and, therefore, an amended petition was filed and the same was allowed by the learned Single Judge in Chambers vide judgment dated 13-05-2013. The operative part of the judgment is as follows: "In this view of the matter , instant petitio n is allowed and the respondents are directed to process his case for induction in the Federal Government (Secretariat Group) as per rules and regulations, applicable." The said judgment has been assailed by the Federal Government through ICA No. 859/2013. The Prime Minister of Pakistan issued a directive whereby the financial benefits under the 'Time Scale Formula' were granted to the Teaching Staff of the Federal Directorate of Education, Islamabad and, pursuant thereto, the Capital Administration and Development Division issued the Office Memorandum dated 15-09-201 1. The Ministry of Defence forwarded a summary to the competent authority for extending the 'Time Scale Formula' to the Teaching Staff in BPS-16 and above employed and working in the parent Department. The said summary was endorsed by the Secretary Finance vide note dated 14-02-2014 and the approval, accorded by the Prime Minister , was duly communicated to the Defence Secretary on 16-10-2015. It appears from the record that the respondent' s repatriation orders to his parent Department were issued through Notifications dated 18-10-2012 and 05-05-2016 but there is nothing on record to show as to why they were not implemented. Nonetheless, the respondent continued to serve outside his parent Department. The respondent filed W.P. No. 4118/2016, praying that an appropriate writ be issued for the grant of 'Time Scale Promotion in BPS-21 with effect from 01-01-201 1 and thereafter forwarding his case for the grant of BPS-22 on the basis of meritori ous service. The said constitutional petition was allowed by the learned Single Judge in Chambers vide the impugned judgment, dated 10-03-2017. The respondents in the said petition were directed to issue a notification in favor of the petitioner for the grant of Time Scale Promotion in BPS-21 with effect from 01-01-201 1 and then to forward his case for promotion to BPS-22 on the basis of meritorious service. The Secretary Establishment Division has challenged the judgment, dated 10-03-2017, through ICA No. 123/2017, while the same has also been assailed by the parent Department through the Ministry of Defence by filing ICA No. 117/2017. The respondent was transferred vide Notification, dated 12-01-2017, to the National Security Division and later directed to report to the Establi shment Division. The said transfer was challenged by the respondent by filing Crl. OP No. 11/2017 in CP No. 23/2012 and the same was dismissed by the august Supreme Court vide order dated 30-01-2017. The respondent filed W.P. No. 427/2017 before this Court, which was disposed of vide order dated 06-02-2017. Another constitutional petition i.e. W.P. No. 1230/2017, filed by the respondent, was also disposed of by this Court vide order dated 10.04.2017. Pursuant to the aforesaid orders, dated 06-02-2017 and 10- 04-2017, the Secretary Establishment Division passed order , dated 26-04-2017, and the relevant portion thereof is as follows: "Now , therefore, the undersigned, in compliance with the orders of the honourable Islamabad High Court, has heard the petitioner and is of the view that an appropriate placement, that too in consultation with his parent department or repatriation of the officer to is parent department, would be decided in pursuance to any final order of the honourable Islamabad High Court (ICA No. 859/2013) for which an application for early hearing has already been filed. A seat of OSD for the officer will be created in the Establishment Division meanwhile, for pay purposes." 3. Regarding the claim of the petitioner to be inducted in the Secretariat Group, this Court, in I.C.A. No.859 of 2013 held the following: "In the instant case, the respondent is, admittedly , neither an officer belonging to one of the Occupational Groups/Services nor has he been recommended by the controlling Ministry of the parent Department. We are
---
## Page 3
afraid that his case is also not covered under the other modes prescribed for induction as an officer in the Secretariat Group. There is no force in the argument that as other ineligible persons have been inducted, therefore, the same benefit may also be extended to the respondents. It is implicit in this argument that illegality may be allowed to be perpetuated. The respondent definitely does not meet the prescribed eligibility criteria and conditions for induction in the Secretariat Group. The learned Single Judge in Chambers was indeed not properly assisted nor was his attention drawn to the mandatory conditions which have been discussed above. The respondent is not eligible nor otherwise entitled for induc tion in the Secretariat Group. No right has accrued in his favor and, therefore, the constitutional petition which was decided vide the impugned judgment, dated 13.05.2013, was without merits." 4. The appeals filed by the Federal Government against the petitioner thus succeeded and the learned Division Bench issued the following directions: "For what has been discussed above, all the three appeals succeed and the impugned judgments, dated 13.05.2013, passed in W.P. No.828/201 1 and dated 10.03.2017, passed in W.P. No. 4118/2016, are consequently set aside. It will be open to the Federal Government to proceed with the placement of the respondent in the light of paragraph 8 of the order , dated 26.04.2017, passed by the Secretary , Establishment Division." 5. The petitioner filed W.P. No.4278/20 17 and Criminal Original No.379-W/2017, which were dismissed as withdrawn. During the pendency of I.C.A. No.859/2013, 117/2017 and 123/2017, he filed W.P. No.2425/2017 challenging transfer orders reproduced as part of the order of the I.C.A. above. This petition was dismissed in limine for being barred by Article 212(2) of the Constitution. The petitioner had also filed W.P. No.427/2017 against a transfer order of the Federal Government, which was also disposed of for being premature as his representation was pending before the competent authority and he had approached this Court without waiting for it to be decided. 6. The petitioner appeared in person and took the Court through his history of transfers and postings which has been reproduced above and also as part of the submissions of the learned Assistant Attorney General later in this judgment. The petitioner has submitted that he has been a victim of malice and discrimination due to which he has been posted as an officer on special duty ("OSD") as a prelude to be transferred back to his parent department. He asserted that an appropriate posting is a prerequisite for the transfer of a civil servant for purposes of section 10 of the Civil Servant Act, 1973 ("CSA") and given that there is no post available for him in his parent department, he cannot be repatriated to his parent department. He further submitted that he has been a victim of discrimination and has been kept dysfunctional for the last eighteen months as OSD which is also something that has been depreciated by the apex Court. He has relied on Syed Mahmood Akhtar Naqvi vs. Feder ation of Pakistan (PLD 2013 SC 195), Suo Motu Case No. 24 of 2010 in the matter of (regarding Corruption in Hajj Arrangements in 2010) (2014 SCMR 484). He has further submitted that this Court is vested with authority to exercise judicia l review over illegal administrative actions and relies on Suo Motu Case No. 18 of 2010 (PLD 2011 SC 927) and also relies on Abdul Hameed Anjum vs. Federation of Pakistan (2010 PLD SC 857) for the proposition that promises made by the government to a public functionary are to be fulfilled. 7. Learned Assistant Attorney General has appeared along with Joint Secretary Establishment Division and has submitted that following fact profile re postings and transfers of the petitioner: i. Mr. Khushdil Khan Malik is a regular Principal (BS-20) of FGEI Cantonment/Garrison under Ministry of Defence who was posted on deputation as Director , Human Right on 23.08.2004 for three years; ii. Subsequently , he was posted as DS, Ministry of Human Rights under Section 10 on 04.02.2009 and subsequently posted as DS, SAFRON Division; iii. He was repatriated for the 1st time to his parent department on 03.02.2010 on the request of Ministry of Defence on account of complaint received against him and he assailed the said order by filling W.P. No.828/201 1 in Islamabad High Court and also prayed for induction in Secretariat Group which vide judgment dated 12.06.2013 was allowed with the direction to process his case for induction in Secretariat Group as per rules and regulation but Establishment Division feeling aggrieved thereby filed Intra Court Appeal No.859 /2013 which was allowed vide judgment dated 08.03.2018 wherein observation was made "that it will be open to the Federal Government to
---
## Page 4
proceed with the placement of the officer in the light of para 8 of order dated 26.04.2017, passed by Secretary , Establishment Division". iv. On 20.10.201 1 he was posted as Director General, National Counter Terrori sm Authority (ACT A) but again repatriated 2nd time to his parent department on 18.10.2012 but he did not join; v. On 29.07.2013, he was posted as Director General NACT A on deputation but again he was repatriated 3rd time to his parent department but he did not join; vi. On 20.05.2016, he was posted in Natio nal Security Division. He was directed to report to Establishment Division 12.01.2007 but he filed a Cr. Org. Petition No.11/2017 in C.P. No.23/2012 (Anita Turab Case) for non-compliance of judgment regarding transfer before the completion of tenure but Supreme Court vide order dated 30.01.2017 dismissed the Crl. Org as withdrawn with direction to the petitioner to first approach the competent authority regarding his transfer/posting but he has not so approached; vii. Thereafter , he filed a representation to Secretary , Establishment Division and simultaneously filed W.P. No. 427/2017 before Islamabad High Court against notification dated 12.01.2017 wher ein he was directed to report to Establishment Division. Islamabad High Court vide order dated 06.02.2017 dismissed the petition being premature and directed the Secretary , Establishment Division to decide the officer 's application within 30 days. Secretary , Establishment Division vide order dated 26.04.2017 decided the officer 's appeal and observed that "the Officer 's repatriation case would be decided in pursuance of final order of Islamabad High Court in ICA. No.859/2013 that too in consultation with Defense Division"; viii. Ministry of Defence on 03.03.2017 requested Establishment Division to "repa triate the officer". But instead of obeying the lawful orders the petitioner filed another W.P. No.2425/2017 which was dismissed vide order dated 23.06.2017. The officer filed a Civil Petition. No.3042 of 2017 before Supreme Court and that court vide order dated 07.11.2017 disposed of the case on the statement of Deputy Attorney General that the officer has been made (Officer on Special Duty) OSD only for pay purpose and shall be given posting. SC further observed that respondents shall act in accordance with law and post the petitioner as early as possible; ix. Establishment Division vide notification dated 29.11.2017 repatriated the officer for the 4th time. The officer filed Crl. Org. No.58/18 before Supreme Court and a W.P. No.45/2018 before IHC against repatriation orders. Establishment Division posted the officer as Joint Secretary , Textile Division subject to final outcome litigation. The august Supreme Court vide order dated 12.02.2019 disposed of the Crl. Org. No.58/18 and observed that "order dated 17.11.2017 has been complied with". Islamabad High Court vide order dated 23.01.2019 disposed of W.P. No.45/2018 on the same grounds"; x. Ministry of Defence vide D.O. letter dated 11.01.2019 requested Establishment Division to take disciplinary action against the officer on the ground of misconduct; xi. Textile Division vide O.M dated 19.06.2019 surrendered the services of the officer to Establishment Division and Establishment Division vide notification dated 08.07.2019 directed the officer to report to Establishment Division. Both OM dated 19.06.2019 and notification dated 08.07.2019 are under challenge in the instant W .P. xii. Meanwhile, Establishment Division vide notification dated 20.08.2019 repatriated the officer 5th time to Defence Division by quoting order dated 06.08.2019. Court vide order dated 12.09.2019 raised objection that there was no direction given by the court to repatriate the officer and suspended the operation of impugned notification dated 20.08.2019. The learned Assistant Attorney General submitted that the petition is not maintainable as the question of transfer and posting falls within the terms and conditions of service in relation to which bar under Article 212 applies; that no civil servant has a right to stay on a certain post and the Federal Government has the requisite power under section 10 of the Civil Servant Act to repatriate a civil servant to his parent department; that the petitioner has served outside his parent department beyond the period prescribed under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ("APT Rules") ; that it is the prerogative of the Federal Government to transfer him back to his parent department and the parent department also seeks his repatriation; that there is one post of BS-20 available as per information received from the Ministry of Defence and the argument of the petitioner that there is no post presently available in his parent department is without force; that the petitioner has been
---
## Page 5
seeking time scale promotion but that he cannot be considered for such promotion until he is repatriated to his parent department and it is therefore in his interest to return to his parent department; that even if the petitioner is aggrieved by the transfer order he has an adequate remedy before the Federal Service Tribunal and he is in fact availing such remedy and the order impugned before this Court has also been challenged before the Federal Service Tribunal; that the Federal Govern ment has had to block one post due to the instant litigation and it would be in the interest of justice if the petition is dismissed and the Federal Governm ent is allowed to repatriate the petitioner to the Defence Division. 8. In view of the arguments made, three questions arise for purposes of adjudication of this petition: (1) Does a civil servant have a right to object to a posting or transfer order and can he/she claim to remain on a certain post or on deputation for a particular period of his/her choice? (2) Is an order under section 10 of the Civil Servant Act for posting and transfer of a civil servant distinguishable from the order to post a civil servant on deputation and whether a posting order of a deputationist is also to be issued under section 10 of the Civil Servant Act? (3) Does an order under section 10 to transfer a civil servant fall within the scope of terms and conditions of service of the civil servant, consequently attracting the bar imposed by Article 212 of the Constitution ousting the jurisdiction of this Court? 9. In relation to first question and third question a copious amount of case law has been produced by superior courts. The simple answer to the question of whether a civil servant has a right to seek a certain post or object to a transfer order or remain on deputation for a period of his/her own choice, is an emphatic no. And a posting order falls within the domain of terms and condi tions of service attracting the bar to jurisd iction of the High Court imposed by Article 212 of the Constitution as has been discussed at length later in this judgment. The rulings of superior courts on the first question are reproduced below: (1) 1991 SCMR 477 (Syed Afzal Ahmad Hydari Vs. Secretary Ministry of Defence Production Division) "Section 10 of the Civil Servants Act, 1973, in clear and unambiguous term says that every Civil Servant shall be liable to serve anywhere within or outside Pakistan on any position under the Federal Government or the Provincial Government or a local authority . We are therefore of the view that the petitioner could be transferred to work in any post under the Federal Government, without his consent" (2) 2007 SCMR 54 (Peer Mohammad Vs. Government of Balochistan) "No legal right of the petitioner has been infringed. A desire simpliciter cannot be equated to that of a legal right... It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder . The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved." (3) Dr. Shafi ur Rehman Afridi Vs. C.D.A through Chairman and others ( 2010 PLC CS 367 ). 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 deput ation 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 deputationist 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.
---
## Page 6
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 other s 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 . 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. (4) 2014 PLC (CS) 82 Contempt proceedings against Chief Secretary , Sindh and others. The procedure provided under the ESTACODE requires that a person who is transferred and appointed on deputation must be a government servan t and such transfer should be made through the process of selection. The borrowing Government has to establish the exigency in the first place and then the person who is being transferred/placed on deputation in Government must have matching qualifications, expertise in the field with required experience. In absence of these conditions, the Government cannot appoint anyone by transfer on deputation. (5) 2014 SCMR 799 (S. Masood Abbas Rizvi Vs. Federation of Pakistan) It is a settled principle that a deputationist does not have any vested right to remain on the post as deputationist forever or for a stipulated period, he could…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.