MIR AHMED Versus EVACUEE TRUST BOARD, GOVERNMENT OF PAKISTAN
JAMAL KHAN MANDOKHAIL, C.J.--- Facts of the case are that the respondents No.3 and 4 were appointed as Tehsildar on work charge basis for a period of 88 days by the Evacuee Trust Property Board (`ETPB'), Government of Pakistan, vide order dated 6th August 2010 and 22nd July 2010. On completion of their period, the respondents were again appointed for 88 days, vide order dated 6th October, 2010 and 28th October, 2010, and lastly, they were appointed for third time for a period of 88 days, vide order dated 3rd January, 2011 and 31st January, 2011. Subsequently, the services of both the respondents were regularized by the Chairman of the Board of ETPB on 20th September, 2011.
2. The Government of Balochistan, through Services and General Administration Department ('S&GAD') requested the Chairman ETPB, Lahore, for transfer of the services of the respondents Nos.3 and 4 on deputation to Government of Balochistan. The ETPB, accepted the request and placed the services of the respondents Nos.3 and 4 at the disposal of the Government of Balochistan on deputation basis for a period of 03 years, vide order dated 6th July 2012. The Chief Secretary, Government of Balochistan, placed the services of the respondents at the disposal of the Board of Revenue Balochistan, on deputation, vide Notification dated 11th July 2012. Upon completion of their tenure, the services of the respondents No.3 and 4 were extended for further period of 02 years, vide Notification dated 17th August, 2015. In the meanwhile, some permanent members of the office of the Board of Revenue, Balochistan, filed a Constitutional Petition bearing No.636 of 2012 before this Court against the deputation and extension of the period of services of the respondents Nos.3 and 4. The petition was allowed, vide order dated 13th August, 2015, relevant portion whereof is reproduced herein below:
"14. In view of the narrated facts the prayer in the petition could not be allowed, but keeping in view the reply of the Board it deemed necessary to direct that there shall be no extension in the period of deputation of respondents Nos.3 and 4, they shall be repatriated to their parent department without any loss of time. While the parent department i.e. respondent No.1 Evacuee Trust Property Board is required to take disciplinary action not only against the respondents Nos.3 and 4, but also against the persons responsible of their appointment, and also for their transfer and posting on deputation to the Government of Balochistan.
The petition stands deposed of in the above terms."
Consequently, services of the respondents Nos.3 and 4 were repatriated to their parent Department, however, they at the same time challenged the order of this Court before the Hon'ble Supreme Court of Pakistan, which upheld the order of this Court, vide order dated 2nd October, 2015, in the following terms:
"We have heard the learned counsel for the Petitioners as well as the learned counsel for Respondents Nos. 1 to 5 on caveat.
2. Both the parties seeks disposal of this petition in the following terms:-
"That the action directed by the learned High Court by way of the impugned order dated 13.8.2015 may be taken. However, the Petitioners shall not be prejudiced by any observation made in the said order."
3. Accordingly, this Petition is disposed of in the above terms.
3. It is important to mention here that again on the desire of the Chief Minister, Balochistan, the Principal Secretary, requested the ETPB, for acquiring the services of both the respondents Nos.3 and 4 on deputation through letters dated 11th May 2017 and 19th September, 2017. The ETPB accepted the request and granted No Objection Certificate (`NOC') to both the officers, vide order dated 30th June 2017 and 10th October, 2017. Both the respondents joined the Government of Balochistan and upon completion of 02 years of deputation, their services were extended by the Chief Secretary, Government of Balochistan for further period of 02 years, vide Notification dated 19th November, 2019. Presently, the respondent No.3 is serving as Tehsildar with the Board of Revenue, Government of Balochistan, whereas, the respondent No.4 was posted as Royalty Officer, Mines and Mineral Department, Government of Balochistan, subsequently, he was transferred to the Excise and Taxation Department, Government of Balochistan and recently, his services have been transferred and posted as Assistant Director (BPS-17), Local Government and Rural Development Department, Balochistan. Through this petition, the petitioner challenged the services of the respondents Nos.3 and 4 as diputationist.
4. The learned counsel for the petitioner at the time of Katcha Peshi, on 29th October, 2019, stated that though services of the respondents No.3 and 4 were repatriated, but the Government of Balochistan, again posted them on deputation without following the procedure and without considering the directions of this Court, which is an illegality. In his petition, the petitioner has raised several ads, challenging the orders of deputation of the respondents Nos.3 and 4. Though the petitioner and his counsel were pursuing the petition regularly, but all of sudden, he filed an application bearing C.M.A. No.2506 of 2020 with a request to withdraw the petition. The learned counsel for the petitioner was heard on the application, fate of which will be decided through this judgment.
5. The learned counsel for the respondent No.1 did not appear siice 5th of October, 2020, however, prior to the said date, he was appearing regularly and contended that an inquiry has been conducted by the NAB, in respect of the initial appointments of the respondents No.3 and 4 in ETPB, however, he admitted the fact that their services were placed at the disposal of the Provincial Government, on deputation, as per their request.
6. The learned counsel for the respondents Nos.3 and 4 opposed the contention and stated that the petitioner has no locus standi to file the petition, therefore, the petition is liable to be dismissed. They added that the services of the respondents Nos.3 and 4 on deputation is a matter of terms and conditions of the services, on the basis whereof, the petition is not maintainable in view of bar contained under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. They stated that even otherwise, the petitioner has mainly relied upon the judgment of this Court, passed in C.P. No.636 of 2012, which has been acted upon, pursuant to which, the services of the respondents Nos.3 and 4 were repatriated, therefore, the contention of the petitioner is baseless. The learned counsel argued that the Provincial Government has again acquired the services of the respondents Nos.3 and 4 on deputation after fulfillment of all the required formalities by exercising powers conferred upon the competent authority, therefore, no illegality or irregularity has been committed.
7. The learned AG and the learned AAG stated that the services of the respondents Nos.3 and 4 were acquired by the Provincial Government, with prior approval of the competent authority and their services were placed at the disposal of the Board of Revenue. They stated that the period of deputation of the respondents was extended for further 03 years, which was within the domain of the competent authority. They further added that the entire process has been completed in accordance with the Deputation Policy of 2012, of the Government of Balochistan and in accordance with Law, as such, no illegality has been committed by the competent authority. They stated that the order of this Court has been acted upon, therefore, the petition is liable to be dismissed.
8. Arguments heard and perused the record. It is important to mention here that the petitioner was strongly pursuing the petition, but all of sudden, he filed C.M.A. No.2506 of 2020 for withdrawal of this petition. Through the petition, the petitioner being a citizen of the Province pointed out illegalities and irregularities in the orders of the official respondents for appointment of the respondents Nos.3 and 4 on deputation. He conveyed the information, consequently, this Court took cognizance of the matter, considering it as an issue of public interest. Once an illegality is brought into the knowledge of this Court and after taking notice upon this petition, it is the Constitutional responsibility and obligation of this Court to inquire into the matter and ask the respondents Nos.3 and 4 to show that under what law they are holding their offices. There is no personal interest of the petitioner in this petition, as such, pendency of the petition would not adversely affect him in any manner. There is no ground in the application, which would give him any right, in case, the petition is withdrawn, as such, in the given circumstances, the petitioner is not entitled to withdraw the petition. Reference has been placed on the case reported in PLD 2020 SC 1.
9. The respondents Nos.3 and 4 objected upon the locus standi of the petitioner, who invoked the jurisdiction of this Court under Article 199 (1)(c) of the Constitution, which is reproduced herein below:
"199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law
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(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
The above provision of the Constitution does not necessary require an aggrieved person to file application, rather on an application of any person, a High Court can make an order, requiring a person within its jurisdiction, holding or purporting to hold a public office to show under what authority of law, he claims to hold that office. The object of the stated provision of the Constitution is to determine legality of the holder of a public office. Once an information is received by a Court, it is under an obligation to inquire from a person holding an office to show as to under which authority of law, he / she is lawfully holding the same. Thus, for invoking jurisdiction of a High Court under Article 199(1)(c) of the Constitution, it is not necessary for a person to be aggrieved, as such, any person having knowledge about any person holding a public office in violation of law, has a locus standi to inform the Court through an application. The petitioner does not claim to be an aggrieved personally. His contention is that transfer of the respondents Nos.3 and 4 on deputation is in violation of the relevant provision of law and the judgment, passed by this Court, therefore, they are not entitled to hold the offices. Under such circumstances, the petitioner has locus standi to file the petition. Reference has been placed on a case reported in PLD 2007 SC 52.
10. Next objection of the respondents Nos.3 and 4 is that the petition is barred by Article 212 of the Constitution. Admittedly, the respondents Nos.3 and 4 are the employees of the ETPB, who are appointed under Section 12 of the Evacuee Trust Property Board (Management and Disposal) Act of 1975 ('the Act of 1975'). According to Section 13 of the Act of 1975, "all persons appointed under this Act, shall subject to a special contract to the contrary, be deem to be public servant, within the meaning of Section 21 of the Pakistan Penal Code (Act XLV, 1860). Though, the respondents Nos.3 and 4 are public servants, but they have been posted on deputation against the cadre posts meant for civil servants. There is no provision of law, empowering an authority to post non-civil officer against a post meant for civil servants, as such, they are illegally holding the posts. The Hon'ble Supreme Court in the case titled Contempt Proceedings Against Chief Secretary of Sindh and others, reported in 2013 SCMR 1752, relevant at para No.129, page No.1845, has held as under:
"129. From the aforesaid definition, we can safely hold that no non-civil servant can be transferred and appointed in the Sindh Government by way of deputation to any cadre. The procedure provided under the ESTACODE reproduced hereinabove has been approved by this Court in the case of Muhammad Arshad Sultan."
In view of above referred dictum of the Hon'ble Supreme Court, only a civil servant can be posted on deputation against a cadre post meant for civil servant and none else. Resultantly, the respondents No.3 and 4 being public servants are not subject to the terms and conditions of a Civil-Servant, therefore, the provisions of Article 212 of the Constitution do not attract in the case in hand. The appointments of the respondents Nos.3 and 4 on deputation against the post of civil servant is in excess of authority, as such, are illegal, therefore, this Court can exercise powers under Article 199(1)(c) of the Constitution and can ask the respondents to show under what authority of law, they are holding the offices, hence, the objection so raised is overruled.
11. As far as merit of the case is concerned, the learned AG alleged that the Government of Balochistan has asked the ETPB for the services of the respondents Nos.3 and 4 on deputation. Subject to the Constitution, the Provincial Government is consisting of the Chief Minster and the Provincial Ministers. There is nothing on the record, showing intention of the Provincial Government to acquire the services of the respondents Nos.3 and 4. The services of the respondents Nos.3 and 4 were hired simply upon the desire of the Chief Minister, which cannot be considered as decision of the Government, therefore, it is established that the services of the respondents Nos.3 and 4 have never been hired by the Government of Balochistan. It is important to mention here that for hiring services of an officer on deputation, a procedure has been defined in the ESTACODE, which has been discussed by the Hon'ble Supreme Court in a case titled Contempt Proceedings Against Chief Secretary Sindh and others, reported in 2013 SCMR 1752, in paras Nos.127 and 128 at pages 1844 and 1845, as under:
"127. The issue of 'deputation' has created lot of unrest amongst the Civil Servants. From the arguments of the learned counsel and the material produced before us, we are of the considered view that the term "deputation" has not been provided under any civil service law and this term has been borrowed from ESTACODE, 2009 Edition Chapter-III at page 385. Part-II at Page 426 of the ESTACODE which deals with issue of deputation and serial No.29, which defines "deputation", is reproduced herein below:-- "hither-to the term 'deputation' has not been formally defined. However, according to the practice in vogue a Government servant begins to be regarded as a "deputationist" when he is appointed or transferred, through the process of selection, to a post in a department or service altogether different from the one to which he permanently belongs, he continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on revision to his substantive post."
128. In the case of Muhammad Arshad Sultan and another v. Prime Minister of Pakistan, Islamabad and others (PLD 1996 SC 771) at page 777, this Court has defined "deputation" in the following terms:
"Deputationist" to be a Government servant who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. Such a Government servant continues to enjoy this status so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post. The departmental interpretation referred to by the said Tribunal as having the effect of statuary rule has still being retained, as is evident from the ESTACODE (1983 Edition) in Chapter III, Part II at page 217. This Court has also accepted the aforesaid definition of the term 'deputation' in Islamic Republic of Pakistan v. Israrul Haq and others PLD 1981 SC 531"
12. Thus, before hiring the services of an officer, the procedure provided by the ESTACODE, explained by the Hon'ble Supreme Court must be adopted, which include the appointment through the process of 'Selection'. The Selection Authority is under obligation to assess the expertise and experience of a person, for the post against which he / she is intended to be posted on deputation. Reliance has been placed on the judgment of the Hon'ble Supreme Court in a case reported in 2013 SCMR 1752, relevant is in paragraph No.132, page 1851, which is as under:
"132. The procedure provided under the ESTACODE requires that a person who is transferred and appointed on deputation must be a government servant and such transfer should be made through the process of selection. The borrowing Government has to establish the exigency in the first place and then the person who is being transferred/placed on deputation in Government must have matching qualifications, expertise in the field with required experience. In absence of these conditions, the Government cannot appoint anyone by transfer on deputation."
13. In the case in hand, the services of respondents Nos.3 and 4 were placed at the disposal of the Board of Revenue. The respondent No.3 remained posted as Tehsildar with Board of Revenue, whereas, the respondent No.4 was posted in the Mines and Minerals Department, then in the Excise and Taxation Department and lastly in the Local Government and Rural Development Department, Government of Balochistan, but none of the departments requested for acquiring services of the respondents Nos.3 and 4, nor showed their exigency or necessity. Even the Secretary, Local Government and the Secretary Excise and Taxation Department appeared before the Court and stated that they did not demand the services of the respondent No.3. The Secretary, S&GAD also appeared before the Court and conceded the fact that the procedure provided by the law and interpreted by the Hon'ble Supreme Court, in the above referred judgments has not been followed, while making order of deputation. There was no Selection Committee for the selection of both the respondents. Consequently, their appointment was not through the process of selection. Under such circumstances, the orders passed by the official respondents with regard to transfer of the respondents Nos.3 and 4 on deputation and subsequent extension in their period of deputation was contrary to the guidelines of the Hon'ble Supreme Court, which are illegal, unlawful and in excess of authority and jurisdiction.
14. Moreover, a Deputation Policy of the year 2012 of the Government of Balochistan was in vogue, when the services of the respondents Nos.3 and 4 were hired. According to paragraph (3) of the Policy, "an official cannot be posted on deputation for more than 5 years throughout his / her service carrier". It is to be noted that initially the respondents Nos.3 and 4 were posted on deputation in the year 2012 and they remained there for 03 years, whereafter, they were repatriated to their parent departments on the directions of this Court. Thereafter, again their services were hired on deputation in the year 2017 for 02 and since than they are holding the offices on deputation. Without prejudice to the above legal and factual aspect of the case, even, they were not entitled to hold the offices on deputation for more than 5 years, throughout their service carrier, but to the contrary, they are still holding the offices beyond 5 years, which is against the Deputation Policy, 2012. Besides, this Court in C.P. No.636 of 2012 has made clear directions through order dated 13th August 2015 to repatriate the respondents and their period of deputation should not be extended, but the official respondents have failed to comply the directions of this Court, rather, they not only acquired their services after repatriation, but have also extended the period of deputation. Under such circumstances, the respondents Nos.3 and 4 are holding the offices in Balochistan, without any lawful authority, which is an illegality. The official respondents have failed to perform their functions, in accordance with law, which amounts to mis-exercise of authority vested in them.
Thus, in view of above, the petition is allowed and the application is dismissed. The Notifications dated 7th November 2017 and 19th November 2019, issued by the S&GAD, Government of Balochistan, are set aside. The Secretary, S&GAD should take all necessary steps for early repatriation of the respondents Nos.3 and 4 to their parent department. The charge of Tehsildar Saddar, Quetta and the charge of the Assistant Director, Local Government or if the respondents Nos.3 and 4 holding any other post in the Provincial Government, they should immediately withdraw from the same. The Chief Secretary, Government of Balochistan should pursue the matter and to ensure compliance of the judgment.
SA/127/Bal. Petition allowed.