NOOR-UL-WAHAB Versus FEDERATION OF PAKISTAN through Secretary Ministry of Interior Government of Pakistan
AHMAD ALI, J. ----Through the instant Writ Petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following relief: -
"On acceptance of this writ petition an appropriate writ may please be issued declaring the petitioner fit and eligible to be absorbed in respondents department/FIA, the petitioner is discriminated in the matter of absorption as his similarly placed colleagues were allowed permanent absorption, the reluctance on the part of the respondent department (FIA), is illegal, unlawful, without lawful authority and of no legal effect, the petitioner having every right to be absorbed in the FIA and order has taken its effect, the petitioner has every right to continue his service as Constable in FIA and respondents Nos.1 to 3 may also be directed to induct/absorb the petitioner permanently in the department and he may be given the same relief which had been given to the employees absorbed in FIA or
Any other remedy deemed proper may also be allowed".
2. In essence, grievance of the petitioner is that his services were transferred to the Federal Investigation Agency ("FIA") on deputation basis initially for a period of three years, which were later on given extension for several times in the said Agency. According to the petitioner, certain officials, who were working as such in the FIA, were absorbed therein, but when the petitioner applied for his permanent absorption in line with the said other absorbed officials, no fruitful result of his application dated 30.01.2018 was come-out and his application for absorption is still pending before the competent authority, hence the instant writ petition.
3. Arguments heard and record gone through.
4. Without dilating upon the merit of the cases, suffice it to say that by now it is settled law that deputationist has no right to remain in borrowing department for ever. He has also no right to challenge order of his repatriation to his parent department as it has been held by the superior courts in different judgments.
5. In case of transfer on deputation, no vested right accrued to a deputationist to continue for the period of deputation. The competent authority was empowered to repatriate a deputationist as and when the exigencies of service required. Some of the cases in which this view has been taken are mentioned herein below:--
(i) In the case of Pakistan v. Fazal Rehman Khundkar and another reported as PLD 1959 Supreme Court (Pak.) 82, it has been held by the Hon'ble Supreme Court of Pakistan that it is a matter of practice and common experience, that officers of the Provincial cadres deputed for service at the Centre are frequently recalled by their Province, by the Provincial Government, in the exigencies of the public service. Against such a recall they have no right of any kind to object, being substantively officers of the Provincial Government and only on deputation to the Centre. The mere fact that they may be holding at the Centre a post higher in rank than that to which their place in the Provincial cadre entitles them in the Provincial service does not constitute the least bar to the making of an order by the Central Government at the request of the Provincial Government, replacing the services of such an officer at the disposal of his parent Government.
(ii) (ii) In the case of Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad reported as 2010 SCMR 378, it has been held by the Hon'ble Supreme Court of Pakistan that the provisions of Civil Servants Act, 1973, and rules made thereunder, as well as Esta Code were silent about the fact that a deputationist must serve his entire period of deputation and such omission seemed deliberate enabling the competent authority to utilize service of an employee in the manner as it might deem fit and proper. Period of deputation could at the best be equated to that of an expression of maximum period which could be curtailed or extended by competent authority and no legal or vested rights were available to a deputationist to serve his entire period of deputation in borrowing department.
(iii) (iii) In the case of Mst. Robia Ayub v. Federation of Pakistan reported as 2013 PLC (C.S.) 915, it has been held by this Court that a deputationist cannot remain on deputation for an indefinite period or stipulated period in accordance with his/her own whims and wishes. Civil servant has no vested right to complete the deputation period as it is a matter relating to the terms and conditions of service. Competent authority of borrowing department having sole discretion to decide fate of deputationist could repatriate him at any time to parent department.
(iv) (iv) In case of Abdul Majeed v. Chief Secretary, Punjab reported as 2015 PLC (C.S.) 1381, it has been held by the Hon'ble Lahore High Court that a deputationist did not have any vested right to remain on the post as deputationist forever or for a stipulated period. A deputationist could be ordered to be repatriated to his parent department at any time without assigning any reason. Parent department of appellant-employee was not bound to assign reason for his repatriation.
(v) (v) In case of Lal Khan v. Employees Old Age Benefit Institution reported as 2010 PLC (C.S.) 1377 (Karachi), it has been held by the Hon'ble High Court of Sindh that a deputationist had no vested right to remain on post forever or for a stipulated period. A deputationist could not challenge order of his repatriation as he could be repatriated back to parent department at any time.
In this regard reference can also be made to a judgment reported in 2018 PLC (C.S) 1248.
6. 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 rest of his service in the borrowing department, he can be repatriated being a deputationist by the Competent Authority in the interest of public and 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 there under as well as ESTACODE are silent about the fact that a deputationist must serve his entire period of deputation 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 judgments:-
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. 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.
7. We have also examined the controversy from another angle that as to whether the Constitutional petition is maintainable or not? when a civil servant has no vested right to ask for his absorption in the borrowing department as the matter relates 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 others 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.
8. It is also worth to mention here that a deputationist could not be treated as an aggrieved person provided he had been placed in the same grade and status in borrowing cadre which he was enjoying before his status of deputationist in the parent department. In the case of Hafiz Hamdullah v. Saifullah Khan and others, reported in PLD 2007 Supreme Court 52, it was held as under:-
(a) Constitution of Pakistan (1973)----
----Art.199(1)(a)------Constitutional jurisdiction of High Court---Scope--- "Aggrieved person"---Connotation--- Constitutional jurisdiction of High Court, under Art. 199(1)(a) of the Constitution, can be invoked by an aggrieved person, which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused to him something which he was legally entitled to--- Further requirement is that the person invoking Constitutional jurisdiction under Art.199 of the Constitution has to establish that any of his legal or fundamental rights guaranteed under the Constitution has been violated resulting in legal loss".
9. More so, it may not be out of place to mention here that a deputationist has no vested legal right to remain on a post as deputationist forever and repatriation of petitioner to his parent department delegates no legal right to him to challenge it by way of writ petition.
10. The term "legal right" was also discussed in case titled Daniel v. State 1968 AIR Mad. 349 with the following observations:---
"(1) In its strict sense is one which is an ascertainable claim, enforceable before Courts and administrative agencies; (2) In its wider sense, a legal right has to be understood as any advantage or benefit conferred upon a person by a rule of law; (3) There are legal rights which are not enforceable, though recognized by the law; (4) There are rights recognized by International Court, granted by International Law, but not enforceable; and (5) A legal right is a' capacity of asserting a secured interest rather than a claim that could be asserted in the Courts."
11. The term "legal rights" was also examined in case titled Government of East Pakistan v. Federation of Pakistan PLD 1962 Kar. 353 as under:
"The term "legal right" obviously means a right recognized by law and capable of being enforced by the power of the State, but not necessarily in a Court of law. It is a right of a party recognized and protected by a rule of law, the violation of which would be a legal wrong done to his interest and respect for which is a legal duty, even though no action may actually lie."
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.
13. The question as to whether any valuable right whatsoever is accrued in favour of petitioner as deputationist, the answer is "NO.
14. In view of what has been discussed herein above, the instant petition, being devoid of merits is dismissed.
ZC/82/P Petition dismissed.