NATIONAL ASSEMBLY SECRETARIAT through Secretary vs MANZOOR AHMED

' AMIR HANI MUSLIM, J.---This appeal by leave of the Court is directed against the judgment dated 21-7-2014 of the Islamabad High Court whereby the Writ Petition filed by respondent No,1, was allowed.

2. The facts necessary for decision of these proceedings are that the respondent No,1, was Assistant in BS-14 in the then Ministry of Education and by the 18th Amendment made in the Constitution on 19-4-2010, the Ministry of Education was devolved on the Provinces. On 16-8-2012, Schedule 1 of the Rules of Business was amended and the Ministry of Education was renamed as "Ministry of Education and Trainings". On 24-5-2013, by an amending Ordinance V of 2013, section 3, of the Civil Servants Act 1973, was amended in the following manner:-- "(3) The Federal Government may transfer a civil servant of a devolved Ministry or Division, working in an Attached Department or Subordinate Office situated in a Province, to the Province concerned, in consequence of the devolution of functions pursuant to the Constitution (Eighteenth Amendment) Act, 2010 (X of 2010) and thereby he shall become the civil servant of the respective Province, on the same terms and conditions of service as were applicable to him before such transfer.

(4) The Federal Government may transfer a civil servant working in a Ministry, Division, Attached Department or Subordinate Office located in the Islamabad Capital Territory to any other Ministry, Division, Attached Department or Subordinate Office, in consequence of the abolition of such Ministry, Division, Attached Department or Subordinate Office pursuant to the Constitution (Eighteenth Amendment) Act, 2010 (X of 2010) and thereby he shall become the civil servant of the respective Ministry, Division, Department or Office to which he is so transferred, on the same terms and conditions of service as were applicable to him before such transfer.

(5) The seniority of the civil servants transferred by virtue of subsections (3) and (4) shall be determined by the concerned Province, Ministry or Division, as the case may be, in accordance with the rules.

(6) The cases of civil servants of a Ministry, Division, Attached Department or Subordinate Office devolved in pursuant to the Constitution (Eighteenth Amendment), Act, 2010 (X of 2010) and working in FATA, Gilgit-Baltistan and AJK shall be dealt with in the manner as may be provided by an Order made by the President in this behalf".

3. The petitioner was working in the Ministry of Education. On 24-3-2008, his Services were requisitioned on deputation to the National Assembly Secretariat. The respondent No,1, on expiry of his term of deputation was repatriated to the Establishment Division as by that time, the Ministry of Education was devolved by virtue of Eighteenth Amendment to the Constitution, and it was not clear that as to which department the employees of the devolved Ministry were to join. The Cabinet Secretariat, therefore, created a Devolution Cell to facilitate the smooth transfer of such employees. In the intervening period, on requisition of the Opposition Leader of the National Assembly, the respondent No,1 was transferred and posted to the National Assembly Secretariat in BS-14. On 3-7-2013, the respondent No,1 was repatriated to the Devolution Cell by the Secretariat of National Assembly, on the ground that his period of deputation was over. The respondent No,1, moved an application to the Hon'ble Wafaqi Mohtasib for release of his pay and other allowances and regularization of his service in the National Assembly Secretariat, which application is claimed to be still pending.

4. The respondent No,1 also assailed the action of the appellant through Writ Petition No,3547 of 2013, before the Islamabad High Court and on 19-9-2013, he succeeded in getting an injunctive order, which was assailed by the appellant through a Civil Petition No,1940 of 2013, before this Court.

On 16-12-2013, this Court disposed of the said Petition with the direction to the High Court to decide the case of respondent No,1 expeditiously. On 21-7-2001, the Writ Petition of respondent No,1 was allowed hence this Appeal by leave of the Court filed.

5. It is contended by the learned Counsel for the appellant that the impugned judgment of the learned High Court is without jurisdiction as the respondent No,1 is a Civil Servant and the High Court did not have the jurisdiction to adjudicate upon the issue relating to the terms and conditions of service of the respondent No,1, owing to the bar contained under Article 212(2) of the Constitution. He next contended that the learned High Court proceeded on the erroneous assumption, while entertaining the Petition of respondent No,1, that the issue raised in the Petition pertained to the statutory violation, therefore, the High Court was competent to entertain the Petition of respondent No,1

6. He further contended that respondent No,1 was never an employee of the National Assembly Secretariat and the finding of the learned High Court that the amendment in the Civil Servant Act by the Ordinance No, V of 2013, dated 24-5-2013 [herein after referred to as `the Ordinance'], allowed him to continue as employee of the National Assembly, was erroneous.

7. On the other hand, the learned Counsel representing respondent No,1 contends that at the time of promulgation of the Ordinance amending the Civil Servants Act, the respondent No,1 was serving in the National Assembly Secretariat and by virtue of the Ordinance, he became a permanent employee of the National Assembly Secretariat. He supported the impugned judgment.

8. We have heard the learned counsel for the parties and have perused the record. Admittedly, respondent No,1 is a Civil Servant and, therefore, he could not have approached the High Court under Article 199 of the Constitution for redressal of his grievance, which pertained to the terms and conditions of his Service in view of the Bar created under Article 212(2) of the Constitution. The High Court, therefore, was not competent to adjudicate the issue raised in the Writ Petition. The High Court has fallen in error while proceeding on the erroneous assumption that respondent No,1 had raised the issue of violation of the statutory Rules, therefore, it was competent to decide the issues.

This was an incorrect approach of the learned High Court to entertain a Constitution Petition of a Civil Servant on the ground of the statutory violation. Such grievances of a Civil Servant fall within the domain of the Federal Service Tribunal as mandated by the Constitution.

9. After the Eighteenth Amendment introduced in the Constitution, the Federal Government amended Schedule 1 of the Rules of Business and renamed the devolved Ministry of Education as "Ministry of Education and Training". To facilitate the employees of the devolved Ministry an Ordinance was promulgated by which the Civil Servants Act was amended. The respondent No,1, under the Ordinance was obliged to join the newly created Ministry of Education and Training, instead he claimed that since he was serving in the National Assembly Secretariat on appointment by transfer, therefore, he stood absorbed as permanent employee in the said Secretariat. Mere transfer of respondent No,1 from Devolution Cell of the Cabinet Division to the National Assembly Secretariat, could not be construed that his services were transferred and absorbed in the National Assembly Secretariat. Such transfer was temporary in nature and the respondent No,1 will continue his lien with the parent department, created by the Federal Government by the Schedule. I of the Rules of Business. The learned High Court has failed to notice that the transfer under section 10 of the Civil Servants Act is itself of a temporary nature and neither confers a right on the transferee to get himself absorbed nor the borrowing department, in law, could be compelled to retain the services of such an employee on permanent basis by absorption. There is no concept of absorption of a Civil Servant in another department either in the Civil Servant Act or the Rules framed there under. Section 10 of the Civil Servant Act empowers the Competent Authority to order an employee from one post to another, which is never permanent in nature.

10. We, for the aforesaid reasons, are of the considered view that the High Court, in the first place, did not have the jurisdiction to entertain the Writ Petition of the respondent No,

1. Besides the finding recorded by it in the impugned judgment, is not tenable in law being contrary to the scheme of the Civil Servants Act. Simultaneously, we direct the Government/Competent Authority of the newly created Ministry to adjust/accommodate respondent No,1 fixing the inter se seniority with his batch mates and release all salaries and arrears, if any, for the period for which he has not been paid within two weeks from the date of communication of this Judgment and report compliance. This Appeal is allowed in the above terms. These are the reasons of our short order of even date, which is reproduced as under:- "We have heard the arguments of learned ASCs for both the parties. For the reasons to be recorded later on separately, this appeal is allowed, impugned judgment dated 21-7-2014, is set aside and the Writ Petition No,3547 of 2013 (re: Manzoor Ahmad v. National Assembly Secretariat and others) before the Islamabad High Court is dismissed."