Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ASMA SHAHEEN VS Respondent: FEDERATION OF PAKISTAN through Secretary, Ministry of Education, IslamabadHonorable Justice Iqbal Hameed-ur-RahmanAbdul Rahim Bhatti,Tariq Mehmood Jehangiri
2013 P L C (C.S.) 391
[Islamabad High Court]
Before Iqbal Hameed-ur-Rahman, C.J.
ASMA SHAHEEN and 19 others
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Education, Islamabad and 3 others
Writ Petitions Nos.612 of 2010, 2932 of 2011, 3050, 3994, 4556, 2305, 2278, 753 of 2010, 2943 of 2011, 728, 1402, 1708, 746, 1130, 1834, 2821, 3019, of 2010, 250, of 2011, 3692, 3841, 867, 370 of 2010, 3844 of 2009, 1314, 1137 of 2011, 4540, 3939, 2655, 2560, 2214, 1797 of 2010, 2169, 3008, of 2011, 2971 of 2010, 3012, 3059 of 2011, 1586 of 2010, 2978, 2264, 2881, 3067, 2324 of 2011, 2334 of 2010, 3065 and 2774 of 2011, decided on 24th November, 2011.
(a) Civil service---
----Deputation---Repatriation of deputationist to his parent department before expiry of his tenure of deputation---Scope---Deputation being a contract, deputationist would have no vested right to remain/continue on deputation or his permanent absorption---Competent authority of borrowing department having sole discretion to decide fate of deputationist could repatriate him at any time to parent department---Competent authority in its discretion could absorb some of deputationists according to requirements of his department, capabilities, know-how, performance, qualification, general reputation and on basis of annual confidential reports.
Sajida Abdullah v. District Coordination Officer and 2 others 2011 PLC C.S.) 592; Muhammad Afzal and another v. Chief Secretary, Government of Punjab, Lahore and another 2009 PLC (C.S.) 580; Director-General, Health Services, N.-W.F.P., Peshawar and another v. Dr. Nizakat Iqbal Karim and another 2000 SCMR 67; Dr. Shoukat Pervez v. Federation of Pakistan through Secretary, Establishment Division, Islamabad 2011 PLC (C.S.) 26; Col.(R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others 2004 CLC 1019; PLD 2010 SC 759; Muhammad Zia-ul-Haq v. Secretary to Government of the Punjab and 4 others 2003 PLC (C.S.) 1322; Syeda Adeeba Anjum v. Secretary Government of Punjab Education Department, Lahore and another 2004 PLC (C.S.) 622; Uzma Javed v. Government of Punjab through Secretary Education, Punjab and 2 others 2010 YLR 1968; Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650; Abid Hussain and others v. P.I.A.C. and others 2005 SCMR 25; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Syeda Shazia Irshad Bokhari v. Government of Punjab through Secretary Health and another 2005 PLC 428; Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad through Chairman and others 2010 PLC (C.S.) 367; Mst. Fahim Mumtaz v. Secretary (Schools) 2010 PLC (C.S.) 619 and Lal Khan v. Employees' Old Age Benefit Institution through Chairman and 2 others 2010 PLC (C.S.) 1377 ref.
ESTACODE Sl. No.28 (Chapter-II), Civil Establishment Code (Edition-2007), Volume 1; Dr.Shafi-ur-Rehman Afridi v. C.D.A, Islamabad through Chairman and others 2010 SCMR 378; Prof. M. Ashraf Khan Niazi v. Chairman, Board of Governors, Allama Iqbal Medical College/Jinnah Hospital, Lahore and 2 others 2003 PLC (C.S.) 243; Fida Muhammad v. Government of N.-W.F.P. through Secretary Local Government and Rural Department Secretariat, Peshawar and 3 others 2005 PLC (C.S.) 1207 and Lal Khan v. Employees' Old Age Benefit Institution through Chairman and 2 others 2010 PLC (C.S.) 1377 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil service---Repatriation of deputationist to his parent department---Deputation being a contract, deputationist could not claim absorption or continuance on deputation as a vested right---Deputationist would be bound to go back to parent department, if borrowing department did not require his services----Repatriation of deputationist would not be violative of his fundamental rights or constitutional provisions---Constitutional jurisdiction could not be invoked in such matter.
Dr. Shafi-ur-Rehman Afridi v. C.D.A, Islamabad through Chairman and others 2010 SCMR 378 rel.
(c) Civil service---
----Deputation---Female married civil servant---Right of such female deputationist to continue to serve at the station of borrowing department on basis of wedlock policy---Scope---Nowhere provided in wedlock policy that all deputationists must either be absorbed or continue to serve at place where their spouses were posted.
(d) Constitution of Pakistan---
----Art. 199---Constitutional petition---Non-filing of written comments by opposite party---Effect---Petitioner would have to stand on his own legs as lacunas or weaknesses of opposite party could not prove his case---Such petition involved legal questions, thus, High Court rejected such objection in circumstances.
(e) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could be invoked for enforcement of a clear legal right, but not to establish a legal right.
Anjuman Fruit Arhtian and others v. Deputy Commissioner Faisalabad and others 2011 SCMR 279 and Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219 rel.
(f) Constitution of Pakistan---
----Arts. 199 & 212---Civil service---Constitutional petition for grant of deputation allowance---Maintainability---Such matter had direct nexus with terms and conditions of service---Jurisdiction of High Court was barred under Art.212 of the Constitution---High Court dismissed constitutional petition in circumstances.
(g) Civil service---
----Deputation---Absorption of deputationist on permanent basis in borrowing department---Absence of specific rules/criteria regarding such absorption---Effect---Competent authority of borrowing department having sole discretion in such matter was creating untoward situation---High Court observed that Ministry of Law, Justice and Parliamentary affairs to examine such matter and frame specific rules/criteria regarding thereto.
Abdul Rahim Bhatti for Petitioners.
Tariq Mehmood Jehangiri, Dy. A.-G., Muhammad Zeeshan Akbar, Deputy Director Legal, Muhammad Azam, Deputy Director Legal, Federal Directorate of Education, Islamabad for Respondents.
Dates of hearing: 29th September, 17th, 27th October and 15th November, 2011.
JUDGMENT
IQBAL HAMEED-UR-RAHMAN, C.J.--- Through this single judgment, the instant writ petition as well as following writ petitions are being decided which have arisen out of a common question of law and facts:---
(1) W.P No.2932 of 2011 titled Mrs. Saminna Rehman v. The Cabinet Secretariat, Establishment Division etc.
(2) W.P No.3050 of 2010 titled Mrs. Syeda Sughra Kiran Al-Mosvi v. Federation of Pakistan etc.
(3) W.P No.3994 of 2010 titled Mst. Fauzia Shaheen v. Federation of Pakistan etc.
(4) W.P No.4556 of 2010 titled Syeda Farzana Batool v. Secretary Education, Ministry of Education etc.
(5) W.P No.2305 of 2010 titled Mst. Samita Khalid v. Federation of Pakistan etc.
(6) W.P No.2278 of 2010 titled Mrs. Bas Nihar v. The Federation of Pakistan etc.
(7) W.P No.753 of 2010 titled Mst. Farida Gul etc. v. Federation of Pakistan etc.
(8) W.P No.2943 of 2011 titled Mrs. Imtiaz Akhter v. The Secretary, Federation of Pakistan etc.
(9) W.P No.728 of 2010 titled Mrs. Rubina Arif v. Federation of Pakistan etc.
(10) W.P No.1402 of 2010 titled Mrs. Aziza Tariq v. Federation of Pakistan etc.
(11) W.P No.1708 of 2010 titled Mst. Shahina Niazi and others v. Federation of Pakistan etc.
(12) W.P No.746 of 2010 titled Mst. Falaq-un-Nisa etc. v. Federation of Pakistan etc.
(13) W.P No.1130 of 2010 titled Mrs. Rubina Kausar v. Federation of Pakistan etc.
(14) W.P No.1834 of 2010 titled Ishrat Bano etc. v. Federation of Pakistan etc.
(15) W.P No.2821 of 2010 titled Siraj Begum v. Federation of Pakistan etc.
(16) W.P No.3019 of 2010 titled Mrs. Salma Tabassum v. The Secretary, Federation of Pakistan etc.
(17) W.P No.250 of 2011 titled Mrs. Nusrat Rasheed v. Federation of Pakistan etc.
(18) W.P No.3692 of 2010 titled Mrs. Rajman Shaheen v. The Federal Director General of Education etc.
(19) W.P No.3841 of 2010 titled Shahida Malik v. The Federation of Pakistan etc.
(20) W.P No.867 of 2010 titled Shagufta Begum etc. v. Federation of Pakistan etc.
(21) W.P No.370 of 2010 titled Mrs. Shaheen Akhter v. Ministry of Education etc.
(22) W.P No.3844 of 2009 titled Mrs. Rahat Shahzadi v. Ministry of Education etc.
(23) W.P No.1314 of 2011 titled Mrs. Kausar Parvin v. Federation of Pakistan etc.
(24) W.P No.1137 of 2011 titled Mrs. Robina Niazi v. Federation of Pakistan etc.
(25) W.P No.4540 of 2010 titled Mrs. Sirtaj Begum v. Federation of Pakistan etc.
(26) W.P No.3939 of 2010 titled Mst. Yasmin Akhtar v. Federation of Pakistan etc.
(27) W.P No.2655 of 2010 titled Mrs. Naimat Jan etc. v. Federation of Pakistan etc.
(28) W.P. No.2560 of 2010 titled Mrs. Bibi Surriya v. Federation of Pakistan etc.
(29) W.P No.2214 of 2010 titled Mrs. Zahida Khanum v. Federation of Pakistan etc.
(30) W.P No.1797 of 2010 titled Mrs. Shamas Mushtaq v. Federation of Pakistan etc.
(31) W.P No.2169 of 2011 titled Rukhsana Farrukh v. The Director (F) Federal Directorate of Education, Islamabad etc.
(32) W.P No.3008 of 2011 titled Mst. Athar-un-Nisa v. The Secretary, Federation of Pakistan etc.
(33) W.P No.2971 of 2010 titled Shafqat Munir v. The Secretary, Federation of Pakistan etc.
(34) W.P No.3012 of 2011 titled Mst. Rozina Tasneem v. Federation of Pakistan etc.
(35) W.P No.3059 of 2011 titled Mst. Neelum Waheed v. Federation of Pakistan etc.
(36) W.P No.1586 of 2010 titled Mst. Riffat Waqar v. The Federal Directorate of Education etc.
(37) W.P No.2978 of 2011 titled Malik Muhammad Ijaz v. The Federal Director General of Education etc.
(38) W.P No.2264 of 2011 titled Mst. Najma Yasmeen v. Director General, Federal Directorate of Education etc.
(39) W.P No.2881 of 2011 titled Mst. Razia Begum v. Federation of Pakistan etc.
(40) W.P No.3067 of 2011 titled Mst. Rabia Niaz v. Federation of Pakistan etc.
(41) W.P. No.2324 of 2011 titled Mst. Ume-Kalsoom v. Federation of Pakistan etc,
(42) W.P No.2334 of 2010 titled Mst. Shahida Parveen Khanum v. Federation of Pakistan etc,
(43) W.P No.3065 of 2011 titled Mst. Barjees Ashfaq v. Federation of Pakistan etc.
(44) W.P No.2774 of 2011 titled Hadia Akbar v. Federation of Pakistan etc.
2. Compendious facts of these constitutional petitions are that the petitioners were working at different cities/Provinces and in different pay scales. After due procedure, they were appointed on deputation and presently they are serving on deputation. Most of the petitioners have completed maximum/stipulated period of 5 years on deputation. In some cases orders for repatriation have also been issued. The instant constitutional petitions have been pressed upon the grounds of wedlock policy, medical ground, parent department/place of posting is situated in far flung areas, children are studying in Islamabad, repatriation due political pressure, respondents want to appoint the persons according to their own choice, permanent absorption of some of deputationists, extraordinary performance rendered by them during the period of deputation, socio economic problems, posts are available, parent departments have no objection on permanent absorption and discrimination. It is further added that since the petitioners have served on deputation for the last so many years and their spouses are also working at Islamabad, therefore, right of permanent absorption has been accrued in their favour. Some of the petitioners have also challenged letter dated 3-2-2010 issued by Director Schools (Female), by virtue of which it was observed that all deputationists shall automatically stood repatriated to their parent departments on completion of their maximum 05 years of deputation period under Federal Directorate of Education with no exception in any case, as there is no provision in rules to remain on deputation after period of 5 years. It is, therefore, prayed that the orders of repatriation be declared illegal; they may not be repatriated to their parent departments and be allowed to continue work at Islamabad. In some of petitions, it has been prayed that their deputation period may be extended and in others it is requested that they be absorbed permanently etc.
3. The respondents have opposed these petitions tooth and nail.
4. Mr. Abdul Rahim Bhatti Advocate, learned counsel for the petitioners contends that the petitioners were employees of Provincial Government and their services were requisitioned on deputation on the ground of wedlock policy. The case of the petitioners is not mere that of deputation, but it is a case on the strength of wedlock policy. The learned counsel after reading letter No.F.9-18(W)FDE dated 3-2-2010 submits that the Federal Directorate has initiated an action for regularization of deputationists on permanent basis. According to learned counsel for the petitioners, Rule 11 of Rules of Business 1973 provides that all the matters relating to the terms and conditions of service would be regulated by the Establishment Division. The learned counsel then read Office Memorandum No.10/30/97-R-II dated 13-5-1998, wherein policy of posting of serving husband/wife at the same station has been described and stresses that the same is binding upon the respondents. The learned counsel invited the attention of the Court towards Office Memorandum No.10/30/97-R-2 dated 21-4-2006 issued by Cabinet Secretariat, Establishment Division, Islamabad, whereby the wedlock policy was extended to female government servants whose spouses are not in government service or employed in the private sector or even unemployed. Further submits that a summary has been sent to the Prime Minister for extension of time of deputationists who have completed 5 years on deputation under wedlock policy; that vide letter dated 8-2-1999, the quota of deputation for permanent absorption has been fixed; that vide letters dated 3-9-2005 and 24-5-2007, certain deputationists had been permanently absorbed, but even then the petitioners are not being absorbed and he termed the same as discrimination. Learned counsel also referred order of this Court dated 20-4-2009, passed in some earlier writ petitions, wherein the Director (Training and Colleges), Prof. M. Rafique Tahir appeared before the Court and stated that the orders of repatriation of the deputationists including the said petitioners had been kept in abeyance till the decision of summary from the Prime Minister of Pakistan, therefore, on this statement writ petitions were disposed of. He submitted that in fact, the respondents want to appoint some other officials of their own choice under political pressure. In order to fortify his contentions, Mr.Abdul Rahim Bhatti, Advocate has relied upon the case of Sajida Abdullah v. District Coordination Officer and 2 others (2011 PLC (C.S.) 592 [Lahore High Court), Muhammad Afzal and another v. Chief Secretary, Government of Punjab, Lahore and another (2009 PLC (C.S.) 580) and Director-General, Health Services, N.-W.F.P., Peshawar and another v. Dr.Nizakat Iqbal Karim and another 2000 SCMR 67. Learned counsel states that Articles 4, 37 and 38 of the Constitution protect the rights of the petitioners. The petitioners have given 100% result. No departmental inquiry or disciplinary proceedings are pending against the petitioners and they fulfill all the criteria required for permanent absorption on the respective posts, therefore, the petitioners be absorbed permanently.
5. Mr. Muhammad Mushtaq Bhatti, Advocate learned counsel for petitioners Mrs.Rubina Arif and Mrs.Aziza Tariq enthusiastically contends that the impugned orders regarding repatriation of the petitioners are illegal, unlawful and against the wedlock policy. Some blue eyed chaps deputationists are being absorbed by the department, but discriminatory treatment is being adopted towards the petitioners, which is against the law, Constitution, procedure and cannon of justice and even no reasons are being advanced in this regard. Reliance is placed on the case of Dr.Shoukat Pervez v. Federation of Pakistan through Secretary, Establishment Division, Islamabad (2011 PLC (C.S.) 26). It is further contended that the petitioners have completed more than 13/14 years on deputation and NOCs of their parent departments have also been received, but even then no action is being taken towards absorption of the petitioners. Further contends that petitioner Aziza Tariq was awarded "best teacher" award twice and she had given 100% result; that due to political pressure the said petitioners are not being absorbed, which is against the wedlock policy and even if a husband is retired, wife is entitled to serve at Islamabad; that the children of the petitioners are studying in schools and if they are not absorbed the whole family would be bound to suffer a lot; that the impugned orders are in breach of section 24-A of the General Clauses Act, 1897 which provides that the public functionaries while exercising power should act justly, fairly and reasonably, therefore, the petitioners should have been allowed to remain on deputation. Further contended that the wedlock policy was introduced keeping in view the socio-economic problems and hardships being faced by the husband and wife due to posting at different stations of duty.
6. Sardar Shabbir Hussain Advocate further adds that order of repatriation of his petitioners was passed on the basis of judgment of this Court dated 19-5-2011, but the same was not applicable to the case of the petitioners for the simple reason that the petitioners are pressing their claim on the basis of wedlock policy. The respondents have not filed written comments, therefore, under the law the facts narrated in the petitions would be deemed to be admitted. In order to support his contentions he has relied upon Col.(R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others (2004 CLC 1019, Lahore) Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759) and Muhammad Zia ul Haq v. Secretary to Government of the Punjab and 4 others 2003 PLC (C.S.) 1322 [Lahore High Court]). He also submits that deputation allowance had not been provided to petitioner Neelum Waheed (W.P No.3059 of 2011) since 1995 and the said petitioner has also prayed for the same in the petition.
7. Learned counsel for other petitioners either have adopted the arguments of Messrs Abdul Rahim Bhatti and Mushtaq Hussain Bhatti Advocates or argued almost on similar lines as described supra with little bit changes. Reliance has further been placed on the cases of Syeda Adeeba Anjum v. Secretary Government of Punjab Education Department, Lahore and another (2004 PLC (C.S.) 622) [Lahore High Court], Sajida Abdullah v. District Coordination Officer and 2 others (2011 PLC (C.S.) 592 [Lahore High Court]), Uzma Javed v. Government of Punjab through Secretary Education, Punjab and 2 others (2010 YLR 1968, Lahore), Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another (1995 SCMR 650), Abid Hussain and others v. P.I.A.C. and others (2005 SCMR 25), Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) and Syeda Shazia Irshad Bokhari v. Government of Punjab through Secretary Health and another (PLC 2005 Lahore 428).
8. While opposing the constitutional petitions, learned Deputy Attorney-General came up with variety of arguments and contends that it is not the right of the petitioners/deputationists for permanent absorption. Some of the petitioners do not fulfill the required criteria of posts such as qualification and experience etc. Under the law the period of deputation is 3 years which may be extended upto 5 years, therefore, they have to be repatriated to their parent departments. The petitioners have already availed the maximum period of 5 years on deputation. The period of deputation must be according to their respective notifications. There is absolutely no law that period of deputation can be extended beyond 5 years. No discriminating attitude has been adopted towards the petitioners, therefore, the question of discrimination does not arise. Further stressed that no person has been absorbed after 3-2-2011. Maximum period on deputation does not create any right for permanent absorption and the petitions have not been supported by any law. There are other more than 200 candidates who are waiting for their deputation under wedlock policy, and if the present petitions are allowed, they would be deprived of their legal right. The petitioners who are working in BPS-17 or above, their cases are to be decided by the Federal Public Service Commission. To add vigor to his contentions, reliance has been placed on Dr.Shafi-ur-Rehman Afridi v. C.D.A. Islamabad through Chairman and others (2010 PLC (C.S.) 367 [Supreme Court of Pakistan], Mst.Fahim Mumtaz v. Secretary (Schools) (2010 PLC (C.S.) 619 [Lahore High Court] and Lal Khan v. Employee Old Age Benefit Institution through Chairman and 2 others (2010 PLC (C.S.) 1377 [Karachi High Court].
9. I have heard the arguments advanced at length from both the sides and scanned the material made available in depth.
10. It is an admitted fact that all the petitioners are deputationists. Insofar as period of deputation is concerned, under the law as provided at Sl.No.28 (Chapter-II) of ESTACODE, Civil Establishment Code (Edition-2007, Volume 1), the normal deputation period is three years, which is extendable for another two years. It is further mentioned that a government servant cannot remain on deputation for more than 5 years. It has never been provided anywhere that a deputationist cannot be repatriated to his parent department by the borrowing department before expiry of normal tenure of deputation. It is the sole discretion of competent authority of borrowing department to decide the fate of deputationist. Even Mr. Abdul Rahim Bhatti, Advocate has candidly admitted during the course of arguments this settled/legal position of law that it is the sole discretion of competent authority to repatriate a deputationist at any time and deputationist has no vested right to remain on deputation. After threadbare analysis of facts and circumstances of these constitutional petitions and the controversy involved, I have come to the conclusion that in such like cases, jurisdiction of this Court under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be invoked. In this regard, I am pining my faith on the case of Dr.Shafi-ur-Rehman Afridi v. C.D.A, Islamabad through Chairman and others (2010 SCMR 378), wherein it was held as under:---
"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.
A Deputationist could not 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 deputationist---Such civil servant has no vested right to remain on a post as deputationist forever or for a stipulated period as mentioned in notification and can be repatriated at any time."
In case of Prof. M. ASHRAF KHAN NIAZI v. CHAIRMAN, BOARD OF GOVERNORS, ALLAMA IQBAL MEDICAL COLLEGE/JINNAH HOSPITAL, LAHORE and 2 others (2003 PLC (C.S.) 243 [Lahore High Court], it was held as under:-
---Transfer on deputation---Repatriation---Validity---Not vested right of a civil servant/statutory employee to continue on deputation.
Moreover, in the case of FIDA MUHAMMAD v. GOVERNMENT OF N.-W.F.P. through Secretary Local Government and Rural Department Secretariat, Peshawar and 3 others (2005 PLC (C.S.) 1207 [Peshawar High Court] it was ruled out that:---
"---Deputation---Repatriation of civil servant to parent department before completion of tenure of deputation---Validity---Law never provided that deputationist should complete tenure for which he was deputed---Competent authority had discretion to repatriate deputationist as and when his services were required by parent department---Civil servant had been treated in accordance with terms and conditions of his appointment, whereby he was bound to serve anywhere in Pakistan and not supposed to work at station of his choice---Civil servant had not been deprived of his legal rights by repatriation."
Reliance may also be placed on Lal Khan v. Employee Old Age Benefit Institution through Chairman and 2 others (2010 PLC (C.S.) 1377 [Karachi High Court].
11. In view of above, there is no departure from the conclusion that neither a deputationist has a legal right to claim his permanent absorption nor can seek to remain…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.