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Petitioner: Ghulam Nabi Sheikh and another VS Respondent: Secretary, Establishment Division, Government of Pakistan and another
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:Ghulam Nabi Sheikh and another vs Secretary, Establishment Division,
Government of Pakistan and another Case No.: W.P. No.3954/2018 Date of Judgment:2019-02-14 Reported As: 2019 IHC 24 Result: accordingly dismissed Judgment MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.3954/2018, 4001/2018, 4002/2018, 4004/2018, 4025/2018, 4026/2018, 4027/2018, 4028/2018, 4030/2018, 4031/2018, 4074/2018, 4075/2018, 4080/2018, 4083/2018, 4084/2018 and 197/2019, since the petitioners in the said petitions challenge notification dated 17.10.2018 issued by the Establishment Division, whereby they were repatriated to their parent departments. Writ Petition No.3954/2018 2. Vide Establishment Division' s notification dated 27.02.2013, petitioner No.1 (Ghu lam Nabi Sheikh) who was then serving as Assistant Chief (BS-18) in the Planning, Development and Reforms was transferred and posted as Section Officer (BS-18) in the Ministry of Religious Affairs, Islamabad, on deputa tion basis for a period of three years. 3. Vide Establishment Division's notification dated 30.11.2010, petitioner No.2 (Maqsood Ahmed) who was then serving as System Analyst (BS-18) in the Pakistan Computer Bureau under Ministry of I.T. & Telecom Division, was transferred and posted as Section Officer (BS-18) in the Industries & Production Division, Islamabad, on deputation basis for a period of three years. It appears that subsequently petitioner No.2 was transferred and posted in the Information Technology and Telecom Division. 4. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioners have been repatriated to their parent departments. Petitioner No.1' s name appears at serial No.16, whereas petitioner No.2' s name appears at serial No.53 of the repatriated of ficers, listed in the said notification. Writ Petition No.4001/2018 5. Vide Establishment Division' s notification dated 19.04.201 1, the petitioner (Niaz Ali Khan) who was then serving as Research Officer (BS-17) in the Planning and Development Division, was transferred and posted as Section
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Officer (BS-17) in that Division under Section 10 of the Civil Servants Act, 1973. Office memorandum dated 07.04.2016 issued by the Establishment Division shows that the petitioner was promoted as Section Officer in BS- 18 "while remaining on deputation". 6. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.22 of the repatriated officers, listed in the said notification. Writ Petition No.4002/2018 7. Vide Establishment Division' s notification dated 29.11.2008, the petitioner (Naeem Ahmed Khan) who was then serving as Assistant Professor (BS-18) in the Government Science College, Education Department, Government of Balochistan, was transferred and posted as Section Officer (BS-18) in the Finance Division, Islamabad, on deputation basis for a period of three years. Vide Establishment Division's notification dated 08.10.2010, the petitioner was transferred and posted as Section Officer (BS-18) in the Local Government and Rural Development Division, Islamabad. Vide Establishment Division's notification dated 07.12.2010, the petitioner's services were placed at the disposal of the Cabinet Division for further posting in the Devolution Cell. Vide office order dated 14.07.2014 issued by the Cabinet Division, the petitioner was posted as Section Officer in the Cabinet Division. Vide Establishment Division' s notification dated 19.11.2014, the petitioner was posted as Section Officer (BS-18) in the Ministry of Parliamentary Affairs. 8. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.1 1 of the repatriated officers, listed in the said notification. Writ Petition No.4004/2018 9. Vide Establishment Division's notification dated 16.10.2012, the petitioner (Assad Khan) who was then serving as Private Secretary (BS-18) in the Federal Land Commission, Islamabad, was transferred and posted as Section Officer (BS-18) in the Ministry of Information and Broadcasting, Islamabad, on deputation basis for a period of three years. Vide Establishment Division's notification dated 26.02.2016, the petitioner's deputation period was extended for a period of two years with effect from 19.10.2015. Vide letter dated 28.01.2013, the Ministry of Information and Broadcasting recommended that the Secretary, Establishment Division may consider the petitioner's request for absorption in the Office Management Group ("O.M.G."). 10. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.21 of the repatriated officers listed, in the said notification. Writ Petition No.4025/2018 11. Vide Establishment Division' s notification dated 12.01.2017, the petitioner (Shaz ia Mir) who was then serving as Craft Designer/Assistant Director (Desig n) in the Department of Social Welfare, Government of Punjab was transferred and posted as Section Officer (BS-17) in the Ministry of Parliamentary Affairs on deputation basis for a period of three years. Vide office memorandum dated 26.09.2018 issued by the Ministry of Parliamentary Affairs, the petitioner was relieved of her duties with immediate effect and was directed to report to the Establishment Division. 12. Vide letter dated 07.11.2016, the Social Welfare and Bait-ul -Maal Department, Government of Punjab, had given an N.O.C. to the Establishment Division, Islamabad, for the petitioner 's posting as a Section Officer in the Federal Government on deputation basis. Vide letter dated 16.03.2017, the Social Welfare and Bait-ul-Maal Department, Government of Punjab, withdrew the N.O.C. dated 07.11.2016. Vide letter dated 19.05.2017, the Social Welfare and Bait-ul-Maal Department, Government of Punjab, informed the Establishment Division as to the withdrawal of the N.O.C. and as to the fact that the petitioner had not reported to her parent department. The Establishment Division in its letter dated 14.06.2017 took the position that since the matter regarding the repatriation of ex-cadre officers working as Section Officers in the Federal Secretariat was subjudice before the Hon'ble Supreme Court, the petitioner could not be repatriated until the decision in the said case.
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13. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to her parent department. The petitioner 's name appears at serial No.9 of the repatriated officers, listed in the said notification. Writ Petition No.4026/2018 14. Vide Establishment Division's notification dated 31.12.2008, the petitioner (Syed Taha Mashadi) who was then serving as Lecturer (BS-17) in the Government Degree College, Mastung, Education Department, Government of Balochistan, was transferred and posted as Section Officer (BS-17) in the Ministry of Special Initiatives, Islamabad, on deputation basis for a period of three years. Vide Establishment Division's notification dated 26.02.2009, the petitioner was transferred and posted as Section Officer (BS-17) in the Planning and Development Division. Vide Establishment Division's notification dated 13.10.2014, the petitioner was transferred and posted as Section Officer (BS-17) in the Industries and Production Division. Vide Establishment Division's notification dated 02.08.2017, the petitioner was transferred and posted as Section Officer (BS-17) in the Science and Technology Division. Vide Establishment Division's notification dated 16.11.2017, the petitioner was transferred and posted as Section Officer (BS- 17) in the Ministry of Inter Provincial Coordination. Vide office memorandum dated 12.12.2017 issued by the Establishment Division, the petitioner's services were requisitioned for posting as Section Officer in the Finance Division. 15. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.51 of the repatriated officers, listed in the said notification. Writ Petition No.4027/2018 16. Vide Establishment Division' s notification dated 21.07.2008, the petitioner (Muhammad Saeed Ahmed Chaudhry) who was then serving as Lecturer (BS-18) in the National University of Modern Languages, Islamabad ("NUML"), was transferred and posted as Section Officer (BS-18) in the Ministry of Sports under Section 10 of the Civil Servants Act, 1973. Vide Establishment Division' s notification dated 20.05.201 1, the petitioner was transferred and posted as Section Of ficer (BS-18) "on deputation" in the Economic Affairs Division. 17. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.1 of the repatriated officers listed in the said notification. Writ Petition No.4028/2018 18. Vide Establishment Division's notification dated 01.12.2009, the petitioner (Mansoor Ahmed Bajwa) who was then serving as Deputy Project Director (BS-18) in the High Efficiency Irrigation System, Agricultural Department, Government of Balochistan, was transferred and posted as Section Officer (BS-18) in the Planning and Development Division, Islamabad, on deputation basis for a period of three years. Vide Establishment Division's notification dated 12.01.2015, the petitioner was repatriated to his parent department. Vide letter dated 14.01.2015, the Ministry of Planning, Development and Reform, Government of Pakistan, informed the Establishment Division that the Chief Minister of Balochistan had sent a case for the petitioner's absorption in the Federal Government as a step for putting an end to the sense of deprivation prevailing amongst the people of Balochistan. Accordingly, the Establishment Division was requested to withdraw the petitioner's repatriation orders in relaxation of rules/deputation policy. 19. Vide Establishment Division's notification dated 17.04.2015, the petitioner 's deputation period was extended for two years with effect from 10.01.2015. Furthermore, the notification dated 12.01.2015, whereby the petitioner was repatriated to his parent department, was withdrawn. 20. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.29 of the repatriated officers, listed in the said notification. Writ Petition No.4030/2018 21. Vide Establishment Division's notification dated 19.05.2009, the petitioner (Muhammad Ishtiaq) who was then serving as Lecturer (BS-17) in the Government Science College, Education Department, Government of Balochistan, was transferred and posted as Section Officer (BS-17) in the Ministry of Livestock and Dairy Development, Islamabad,
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on deputation basis for a period of three years. Vide Establishment Division's notification dated 29.03.2011, the petitioner was transferred and posted as Section Officer (BS-17) in the Kashmir Affairs and Gilgit Baltistan Division. 22. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.40 of the repatriated officers, listed in the said notification. Writ Petition No.4031/2018 23. Vide Establishment Division' s notification dated 28.07.2008, the petitioner (Haroon Arshad) who was then serving as Lecturer (BS-18) in the University of Balochistan, Quetta, was transferred and posted as Section Officer (BS-18) in the Establishment Division, Islamabad, on deputation basis for a period of three years. Since the petitioner had not been timely relieved by his parent department, he was unable to join his duties in the Establishment Division as a deputationist. Vide letter dated 24.09.2008, approval was granted by the Services and General Administration Department, Gove rnment of Balochistan, for the petitioner 's posting on deputation basis in the Federal Secretariat. The petitioner was relieved by his parent department with a considerable delay . 24. Vide Establishment Division's notification dated 10.11.2010, the petitioner was posted and transferred as Section Officer (BS-18) in the Education Division. Vide Establishment Division's notification dated 04.02.2011, the petitioner was transferred and posted as Section Officer (BS-18) in the Economic Affairs Division. Vide office order dated 08.04.2011, issued by the Economic Affairs Division, the petitioner was posted in the World Bank/IDB Wing. Vide Establishment Division's notification dated 09.11.2015, the petitioner was transferred and posted in the Ministry of Information, Broadcasting and National Heritage. 25. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.50 of the repatriated officers, listed in the said notification. Writ Petition No.4074/2018 26. Vide Establishment Division' s notification dated 17.02.201 1, the petitioner (Muhammad Saulat Ali) who was then serving as Computer Programmer (BS-17) in the Pakistan Commissioner for Indus Water, Lahore, was transferred and posted as Section Officer (BS-17) in the Ministry of Water and Power , Islamabad, on deputation basis for a period of three years. 27. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.2 of the repatriated officers, listed in the said notification. Writ Petition No.4075/2018 28. Vide Establishment Division's notification dated 24.03.2011, the petitioner (Muhammad Iqbal) who was then serving as Assistant Director (BS-17), Directorate General of Civil Defence, Ministry of Interior, was transferred and posted as Section Officer (BS-17) in the Economic Affairs Division, Islamabad, on deputation basis for a period of three years. 29. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.23 of the repatriated officers, listed in the said notification. Writ Petition No.4080/2018 30. Vide Establishment Division's notification dated 14.03.2013, the petitioner (Abdul Ahad Sami) who was then serving as Assistant Director (BS-17) in the Pakistan Agricultural Research Council under the Ministry of National Food Security and Research, was transferred and posted as Section Officer (BS-17) in the Ministry of Science and Technology, Islamabad, on deputation basis for a period of three years. Vide Establishment Division's notification dated 12.05.2016, the petitioner's deputation period was extended for a period of two years with effect from 03.04.2016. Vide Establishment Division's notification dated 30.08.2017, the petitioner was transferred and posted as Section Officer (BS-18) in the Parliamentary Affairs Division. 31. Vide letters dated 07.09.2018, 12.09.2018 and 18.09.2018, the Pakistan Agricultural Research Council requested the Ministry of Science and Technology to immediately repatriate the petitioner. In the said letter dated 18.09.2018, the petitioner was accused of committing misconduct. Vide notification dated 28.09.2018, the petitioner was relieved by the
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Ministry of Parliamentary Affairs with effect from 26.09.2018. The Pakistan Agricultural Research Council was informed about this fact by the Ministry of Parliamentary Affairs, vide its letter dated 01.11.2018. 32. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.10 of the repatriated officers, listed in the said notification. Writ Petition No.4083/2018 33. Vide Establishment Division' s notification dated 31.12.2008, the petitioner (Tanveer Ahmed Kakar) who was then serving as Lecturer (BS-17) in the Government Degree College, Loralai, Education Department, Government of Balochistan, Quetta, was transferred and posted as Section Officer (BS-17) in the Ministry of Special Initiatives, Islamabad on deputation basis for a period of three years. Vide Establishment Division's notification dated 30.11.201 1, the petitioner was transferred and posted as Section Officer (BS-17) in the Professional & Technical Training Division. 34. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.49 of the repatriated officers, listed in the said notification. Writ Petition No.4084/2018 35. Vide Establishment Division' s notification dated 07.01.2013, the petitioner (Dr. Muhammad Fayaz Sh.) who was then serving as Medical Officer (BS-17) in the Civil Hospital, Sukkur , Health Department, Government of Sindh, was transferred and posted as Section Officer (BS-17) in the Ministry of Inter Provincial Coordination, Islamabad, on deputation basis for a period of three years. Vide letter dated 26.02.2016, the Establishment Division requested the Secretary , Services and General Administration Department, Government of Sindh, to give an N.O.C. for an extension in the petitioner 's deputation period for further two years. The Ministry of Inter Provincial Coordination, in their written comments, filed on 15.11.201 8 have confirmed that the petitioner was still working as a deputationist in the said Ministry . 36. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.17 of the repatriated officers, listed in the said notification. Writ Petition No.197/2019 37. Vide Establishment Division' s notification dated 10.04.2013, the petitioner (Perv aiz Iqbal) who was then serving as Assistant Audit Officer (BS-17) in the Pakistan Audit Department, Office of the Auditor General of Pakistan, Islamabad, was transferred and posted as Section Officer (BS-17) in the Ministry of Human Resource Development, Islamabad, on deputation basis for a period of three years. Vide Establishment Division's notification dated 05.08.2016, the petitioner 's deputation period was extended for a period of one year with effect from 16.04.2016. As per the written comments filed by the Ministry of Overseas Pakistanis and Human Resource Development, the petitioner had completed his deputation period and the Office of the Auditor General of Pakistan had requested that he be repatriated to his parent department. Indeed, vide letters dated 26.12.2017 and 20.12.2018, the Office of the Auditor General of Pakistan required the petitioner 's repatriation to his parent department. 38. Vide impugned notification dated 17.10.2018 issued by the Establishment Division, the petitioner has been repatriated to his parent department. The petitioner 's name appears at serial No.7 of the repatriated officers, listed in the said notification. 39. Learned counsel for the petitioners submitted that the petitioners were challenging their repatriation to their parent departments primarily on the ground that they, having served as deputationists for more than three years, had developed a legitimate expectation for their absorption/induction in the O.M.G. pursuant to paragraphs 5 and 9(A) of the Establishment Division's office memorandum dated 27.01.1975; that the petitioners should be considered for absorption/induction against the 10% quota reserved for deputationists in the O.M.G; that several persons serving on deputation in the Federal Secretariat had been absorbed/inducted in the O.M.G.; that between 1985 to 2013, 284 officers in BS-17 and BS-18 have been absorbed/inducted in the O.M.G.; that since the petitioners had served as
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deputationists for more than three years, it was in the public interest for the Depart mental Promotion Committee to consider them for absorption in the O.M.G; and that until the petitioners were considered for absorption/induction in the O.M.G., they had a right to continue serving as deputationists. Learned counsel for the petitioners made submissions in reiteration of their pleadings in the said writ petitions. 40. Learned Assistant Attorney-General submitted that a deputationist has no vested right to continue serving as such for an indefinite period; that a deputationist can be repatriated even prior to the expiry of the period for which he/she was sent on deputation; that there must be exceptional and compelling reasons for a deputation period to be extended beyond the period of five years; that the petitioners never applied for absorption/induction in the O.M.G.; and that the petitioners' parent departments have not given their consent for the petitioners' absorption/induction in the O.M.G. Learned Assistant Attorney-General prayed for the writ petitions to be dismissed. 41. I have heard the contentions of the learne d counsel for the petitioners as well as the learned Assistant Attorney- General and have perused the record with their able assistance. 42. All the petitioners who are serving as deputationists in the Federal Government, are desirous to be absorbed/inducted in the O.M.G. Since, through the impugned notification dated 17.10.2018, they have all been repatriated to their respective parent depa rtments, they are challenging the said notification. They took the position that since they are eligible to be absorbed/inducted in the O.M.G. against the 10% quota reserved for deputationists, they cannot be repatriated unless they are considered for absorption/induction in the O.M.G. 43. In the year 1975, a new occupational group called the O.M.G. was constituted. This group comprised of (i) all ministerial posts in the Federal Secretariat from Grade 1 to 16, (ii) posts of Section Officers in Grade 17 and 18, and (iii) such other posts, including posts in Grade 19 and 20, as may be specified and included in the said group from time to time. The administrative control over the said group was with the Establishment Division. Vide office memorandum dated 27.01.1975 issued by the Establishment Division, the strength of duty posts of Section Officers in the Federal Secretariat was fixed at 750, out of which 10% were reserved for appointment on deputation on tenure basis or by transfer of officers in BS-17 and BS-18 from other occupational groups/cadres and provincial civil servants. Paragraph 9(A) of the said office memorandum provided the mechanism for the appointment of Section Officers in the Federal Government. For the purposes of clarity, paragraph 9(A) of the said office memorandum is reproduced herein below:- "9(A) Appointment by Transfer - Civil Servants belonging to other occupational groups, services, cadres and the Provincial Governments, including those serving in the Federal Government on deputation basis, may be appointed as Section Officers in the Federal Government in public interest, on the recommendation of the Departmental Promotion Committee, and with the approval of the competent authority . The consent of the Ministry/Division/Provincial Government and the officer concerned will be obtained before making such appointments." 44. Now under paragraph 9(A) of the office memorandum dated 27.01.1975 only "civil servants belonging to other occupational groups, services, cadres and the Provincial Governments, including those serving in the Federal Government on deputation basis" could be appointed as Section Officers in the O.M.G. A person who is not a civil servant could not be appointed in the Federal Government under the said office memorandum. The term "including those serving in the Federal Government on deputation" is referable to "civil servants belonging to other occupational groups, services, cadres and the Provincial Governments" only. Therefore, non-civil servants serving as deputationists in the Federal Government could not be appointed as Section Officers in the Federal Government. An absorption/induction of a deputationist in the Federal Government or the O.M.G. would be invalid and in derogation of the requirements of paragraph 9(A) of the said office memorandum if the following perquisites are not fulfilled:- "i. The absorption/induction being in the public interest. ii. Recommendation of a Departmental Promotion Committee or a Departmental Selection…
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