Pakistan Case LawRAFIQ AHMED Versus GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta
EJAZ AFZAL KHAN, J.--- These appeals with the leave of the Court have arisen out of the judgment dated 14.03.2017 of a Division Bench of the High Court of Balochistan whereby it dismissed the petitions by the appellants as being not maintainable.
2.The learned Sr. ASC appearing on behalf of the appellants contended that when the appellants after having been appointed on deputation in Gwadar Development Authority (GDA) were absorbed, they ceased to be civil servants, therefore, the High Court was competent to entertain, hear and decide their petitions. The learned Sr. ASC next contended that the judgments rendered in the cases of Contempt Proceedings Against Chief Secretary Sindh and others (2013 SCMR 1752) and Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) were distinguishable on legal and factual plane, therefore, the Division Bench of the High Court could not dismiss such petitions as being not maintainable.
3.The learned Advocate General appearing on behalf of the respondent did not dispute the arguments addressed at the bar by the learned Sr. ASC for the appellants and thus suggested that the cases be sent back to the High Court for decision on merits.
4.Raja Muhammad Ibrahim Satti, learned Sr. ASC appearing on behalf of the applicant asking for being impleaded as a party contended that where the appellants were appointed on deputation and then absorbed without having recourse to transparent process, they would not cease to be civil servants, therefore, their petitions were rightly dismissed as their remedy, in view of the verdict, rendered in the case of Muzaffar Hussain v. Federation of Pakistan (Crl. O. P. No. 31 of 2016) would lie through a review petition and not through a petition under Article 199 of the Constitution or an appeal to an Administrative Tribunal functioning under Article 212 of the Constitution. Such disputes, the learned ASC added, could better be resolved by this Court, therefore, the impugned judgment being in line with the judgment of this Court is not open to any exception.
5.We have gone through the record carefully and considered the submissions of the learned Sr. ASCs for the appellants, applicant as well as the learned Advocate General appearing on behalf of the respondent.
6.The record reveals that the appellants were appointed on the recommendations of the Balochistan Public Service Commission vide notification dated 21.10.2002. They served their respective departments till their appointment in the Gwadar Development Authority. The only question requiring consideration is whether the appellants were appointed in Gwadar Development Authority on deputation and then by absorption in accordance with law. We, therefore, have to see what is the method of appointment against the vacancies the appellants were appointed against. Reference to paragraph 4.6 of The Gwadar Development Authority Employees (Service) Regulation 2006 would help us answer the question which is reproduced as under:
"4.11 Initial appointment to posts in basic pay scale 17 and above.
1) Initial appointment to the posts in basic pay scale 20 shall be made by the appointing authority on the recommendation of the Selection Board. The Selection Board shall consider and recommend from amongst the panel of which appeared in the interview.
2) Initial appointment to the posts in the basic pay scale 18 and 19 shall be made by the appointing authority on the recommendations of the Departmental Selection Committee - I. The Departmental Selection Committee shall, as far as possible, recommend from a panel of 3 names for each vacancy.
3) Initial appointment to posts in basic pay scale 11 to 17 shall be made by the appointing authority on the recommendations of the Departmental Selection Committee-II. The Departmental Selection Committee shall, as far as possible, recommend from a panel of at least 3 names for each vacancy.
4) Initial appointment to posts in basic pay scale 10 and below shall be made by the appointing authority on the recommendations of the Departmental Selection Committee-III. The Departmental Selection Committee shall, as for as possible, recommend from a panel of 3 names for each vacancy."
How observance of merit has been guaranteed is evident from paragraph 4.12, which also deserves a look and thus runs as under:
"4.12 Observance of merit and regional quotas.
Provided that where in the case of a professional or technical post the quota cannot be observed previous sanction of the Governing Body shall be obtained before making appointment to such a post.
How appointments by deputation are made has been fully described in paragraphs 4.24 and 4.25 which read as under:
"4.24 Procedure . Appointment by deputation to post may be made in the interest of the authority.
"4.25 Conditions of deputation.
The paragraphs of the Regulations reproduced above enumerate the methods of appointment by initial recruitment, promotion and deputation. To trump if all, they also guarantee observance of merit and regional quota. Appointment by deputation from the Federal or Provincial Government has been provided by paragraph 4.25 but appointment by absorption figures nowhere in the Regulations. Appointment by transfer has been provided by paragraphs 4.22 and 4.23 of the Regulations but that cannot be stretched to Civil Servants of the Federal or Provincial Government. Having completed their normal and even extended tenure of deputation, the appellants were to go back to their parent department. Absorption of the appellants in the Gwadar Development Authority being against the law and rules was to be set at naught. The notification repatriating the appellants to their parent departments is therefore unexceptional.
7.For the reasons discussed above, we having treated this appeal as a review petition and heard it as such, dismiss it.
MWA/R-9/SC Petition dismissed.
Judges on this bench
- Ejaz Afzal Khan738 judgments
- Maqbool Baqar654 judgments
- Ijaz-ul-Ahsan1,075 judgments