Full Judgment Text & Judicial Ruling

2009 P L C (C

2009 P L C (C.S.) 733

[Peshawar High Court]

Before Ghulam Mohy-ud-Din Malik and Zia-ud-Din Khattak, JJ

MUNIR HUSSAIN

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, Elementary and Secondary Education Department N.-W.F.P., Peshawar and 3 others

Writ Petition No.122 of 2009, decided on 26th March, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Transfer on deputation---Repatriation--- Petitioner who was transferred on deputation for a period of three years, was repatriated to his parent Department prematurely before expiry of period of three years---Petitioner had called in question said repatriation praying that notification of repatriation be declared to have been issued without lawful authority having no legal effect---Validity---Deputation was a contract between the borrowing and the lending Authorities, which was liable to be terminated at any stage during prescribed period of deputation---Tenure of three years was not guaranteed period of service with borrowing Authority, rather it indicated the permissible maximum period as prescribed by the initial order of deputation; and it could not be interpreted to be a vested right of a deputationist to insist for the completion of the tenure of deputation---No law to the effect that a deputationist should complete the tenure for which he had been deputed existed; it lay within the discretion of the competent Authority to repatriate a deputationist as and when his services were not required by it (borrowing department) or the same were required by his parent department, before the maturity. of his tenure as he was not supposed to work at the place of his own choice---Impugned order whereby the petitioner had been prematurely repatriated could be an irregularity without affecting his terms and conditions of service or causing injustice to him, which could not be assailed or interfered with in exercise of constitutional jurisdiction of, High Court.

Fida v. Government of N.-W.F.P. 2005 PLC (C.S.) 1207 ref.

Khan Afzal Khan for Petitioner.

Date of hearing: 26th March, 2009.

JUDGMENT

ZIA-UD-DIN KHATTAK, J.--- Munir Hussain, petitioner has called in question the Notification No.SO(B&T)S&L/6-7/2008 BISE, dated 11-3-2009 repatriating him to his parent department and prays that the same be declared to have been issued without lawful authority and of no legal effect.

2. Learned counsel for the petitioner contended that the petitioner was appointed as Assistant Controller Examination (Secrecy), BISE, Abbottabad on deputation basis for a period of three years vide Notification dated 19-7-2008. However, in violation of rules of the Board and by violating the norms of service, the petitioner has been unilaterally repatriated without any fault on his part and without providing him opportunity of being heard.

3. We have considered the contentions of learned counsel for the petitioner and perused the record annexed with the petition.

4. Admittedly, the petitioner is a civil servant of Education Department of Government of N.-W.F.P. and he was transferred on deputation basis to BISE Abbottabad. Although the deputationist has to follow the rules and regulations of the borrowing authority but despite the phenomenon of, deputation he is considered to be a member of the cadre of his parent department. The deputation is a contract between the borrowing and the lending authorities which is liable to be terminated at any stage during the prescribed period of deputation. The tenure of three years is not the guaranteed period of service with borrowing authority, rather it indicates the permissible maximum period as prescribed by the initial order of deputation and it cannot be interpreted to be a vested right of a deputationist to insist for the completion of the tenure of deputation.

5. It may be observed that there is no law that a deputationist should complete the tenure for which he has been deputed. It lies within the discretion of the competent authority to repatriate a deputationist as and when his services were not required by it/him (borrowing department) of the same were required by his parent department before the maturity of his tenure, as he is not supposed to work at the place of his own choice. Fida v. Government of N.-W.F.P. 2005 PLC (C.S.) 1207. The impugned order whereby the petitioner has been prematurely repatriated may be an irregularity without affecting his terms and conditions of service or causing injustice to him which could not be assailed or interfered with in exercise of constitutional jurisdiction.

6. Consequently, this petition being not maintainable is dismissed in limine along with Civil Miscellaneous No.61 of 2009.

H.B.T.77/P Petition dismissed.

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