Muhammad Asim Vs DSJ Mansehra

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Writ Petition No. 1536-A/2025

JUDGMENT

Date of hearing...................22.04.2026.................................

Petitioner (Muhammad Asim) By Mr. Abdul Saboor Khan, Advocate.

Respondent (The District and Sessions Judge, Mansehra) By Mr. Wajahat Hussain Shah, Assistant Advocate General.

AURANGZEB, J.- Through the instant constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks the following relief:–

“In view of the above, it is respectfully prayed that this Honourable Court may graciously be pleased to:– a. Declare that the petitioner has the legal right to have his “lien” to his former position as Junior Scale Stenographer (BS-14) in the District Judiciary, Mansehra, under the law on the subject, which cannot be taken away or denied unless he is permanently absorbed in the new substantive post. b. Declare that the impugned act whereby the “lien” of the petitioner has been denied is illegal, against the law relating to “lien” and the provisions of the Civil Servants Act and Rules made thereunder, and violative of Articles 4, 18 & 25 of the Constitution of the Islamic Republic of Pakistan, 1973. c. Declare that the orders dated 23.09.2022 and 30.08.2025, to the extent of denial of “lien”, are illegal, and consequently direct the respondents to issue notification of creation of “lien” from the date of relieving of the

petitioner until his confirmation on the subsequent post of Junior Scale Stenographer (BS-14).

d. Grant any other relief deemed just and proper in the circumstances of the case.”

2.In essence, the petitioner was initially appointed as Junior Scale Stenographer (BPS-12) in the District Judiciary, Mansehra, on 18.05.2011, and served with an unblemished record. In response to an advertisement issued in 2021 by the Establishment Department, Government of Khyber Pakhtunkhwa, he applied for the post of Stenographer (BPS-14) through proper channel, qualified the ETEA test conducted in 2022, and, after obtaining the requisite NOC from his parent department, successfully cleared the interview in 2025, thereby securing his appointment vide order dated 22.08.2025. Thereafter, he sought to be relieved from his parent department along with grant and protection of lien; although he was relieved vide order dated 30.08.2025 and joined his new post on 03.09.2025, the benefit of lien was not extended to him. Despite his application, no decision has been communicated by the respondents, compelling the petitioner to invoke the constitutional jurisdiction of this Court. Comments were solicited from the respondents and have since been received. In their submissions, it has been stated that the petitioner

applied for the post of Junior Scale Stenographer in the year 2021 in the Establishment Department, Government of Khyber Pakhtunkhwa, without first obtaining the requisite departmental permission/NOC.

It is further averred that the petitioner subsequently moved an application in September, 2022 for grant of such permission, whereupon NOC was accorded subject to the condition that, in the event of his selection, he would not be entitled to claim any lien over his previous post. The petitioner, it is noted, neither objected to nor assailed the said condition through any representation or departmental appeal. In these circumstances, it is contended that the doctrine of waiver and acquiescence squarely applies to the case of the petitioner.

3.Arguments heard and record perused.

4.Perusal of the record reflects that the petitioner, after having been selected through a competitive process conducted by ETEA and upon submission of No Objection Certificate from his parent department, joined the Establishment Department against a higher post of Stenographer (BPS-14). It is also not disputed that the petitioner applied through proper channel and was duly relieved by the parent department.

5.Before dilating upon merit of the case, we reproduce Rule 5 Civil Servants (Confirmation) Rules, 1993 for ready reference:-

“5. Acquiring of lien.- (1) On confirmation in a permanent post, a civil servant shall acquire a lien in that post and shall retain it during the period when he - (a) holds a temporary post other than a post in a service or cadre against which he was originally appointed; (b) holds a post on deputation with a foreign government, an international organisation, a multinational corporation or any other organisation outside Pakistan; (c) holds a post in Foreign Service in Pakistan ;

(d)is on leave; (e) is called for duty in the Armed Forces as reservist of Armed Forces of Pakistan; (f) is under suspension; and (g) is on joining time on transfer to another post. (2) A civil servant acquiring lien as referred in sub- rule (1), shall cease to hold lien acquired previously on any other post.”

Similarly, and Rule 4 of the Khyber Pakhtunkhwa Civil Servants (Lien) Rules, 2025 for ready reference:-

“4. Grant of lien or right of reversion to civil servant on his subsequent appointment against a civil post.---(1) Notwithstanding anything contained in rule 3 of these rules, lien or right of reversion shall initially be granted to civil servant, by the competent authority, upon his appointment against a civil post, in any department or office under the Federal Government or any provincial Government, for the period of fourteen (14) months.

(2)The period of lien shall be extendable for a further period of ten (10) months, in case of extension in probation period on new assignment:

Provided that the concerned civil servant shall cease to hold the lien after the maximum period of two (02) years: Provided further that lien shall not be granted to a civil servant, if he is appointed in autonomous or semi- autonomous body, under the control of Federal Government or any provincial Government, local authority or private organization, whereunder he ceases the status of civil servant, in accordance with rule 11 of the West Pakistan Civil Services (Application for the Post) Rules, 1957.

(3)The facility of lien shall be admissible to those civil servants, whose services have been confirmed upon successful completion of their probation period.”

6.The controversy in the instant petition revolves around denial of lien by the respondent department. In this regard, it is observed that lien is not a mere concession but a statutory right, regulated by the relevant service rules. Rule 5 of the Civil Servants (Confirmation) Rules, 1993, clearly provides protection of lien of a civil servant on his substantive post during the period he serves on another post.

Likewise, Rule 4 of the Khyber Pakhtunkhwa Civil Servants (Lien) Rules, 2025, explicitly recognizes the right of a civil servant to retain lien on his original post under the prescribed circumstances, initially for a period of fourteen months, extendable for a further period of ten months in case of extension in probation period on the new assignment.

7.No doubt, by virtue of the said provision, the Appointing Authority is vested with power to exercise its discretion in this regard, but such discretion must be exercised reasonably, judiciously, honestly, objectively, and in the public interest. Reliance is placed on Abdul Wahab v. Secretary, Government of Balochistan, wherein it has been held that discretionary powers must not be exercised in an arbitrary or whimsical manner and must conform to fairness and legality. Reliance is placed on Abdul Wahab and another v. Secretary, Government of Balochistan and another (2009 SCMR 1354) wherein it has been held as under:-- "No one could be allowed irrespective of the fact who is who to act in an arbitrary, fanciful and whimsical manner and they had got to be judicious, fair and just in taking such decision. We are not persuaded to agree with the learned Additional Advocate General that the question of retention and dispensation squarely falls within discretion of department for the reason that the "Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law. All judicial, quasi judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the policy statement, open rules, open findings,

open reason, open precedents and fair informal procedure. Power of exercise of discretion would not authorize such Authorities to act arbitrarily, discriminately and mala fide. They have to act without any ulterior motive.

Where the Article 58 (2)(b) of the Constitution were found to be violative of terms and spirit of that Article, the orders were struck down ."

8.Even otherwise, the act of the respondent is also violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, as well as the dictum laid down by the Hon’ble Supreme Court of Pakistan in case reported as Mehar Muhammad Nawaz, EX- OG-I Small Business Finance Corporation Multan v. Managing Director, Small Business Finance Corporation and 2 others 2009 SCMR 187 wherein it has been held as follows:--

"Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If even handed justice is not administered, it can have many adverse frustration in the social set-up. There can be no denial that social justice is an objective and enshrined in our Constitution."

9.In the present case, the petitioner fulfills all the preconditions for grant of lien, as he applied through proper channel, obtained NOC from the competent authority, and joined another government department without any break in service. The act of the respondent in relieving the petitioner without protection of lien is,

therefore, not only arbitrary but also in clear derogation of the above-mentioned statutory provisions.

10.It is settled that where a right is conferred by statute, the same cannot be denied through executive inaction or omission. The refusal to grant lien in the present case amounts to depriving the petitioner of his vested right, exposing him to unnecessary service insecurity, which the law precisely seeks to avoid.

11.It is further observed that the petitioner has specifically asserted, and the same has not been controverted by the respondents, that similarly placed employees, namely Ms. Pakeeza Chand and Mr. Jawad Asif, were granted the benefit of lien upon their transition. The differential treatment meted out to the petitioner, without any lawful justification or distinguishing criteria, is patently discriminatory and offends the principle of equality before law. It is well- settled that a public functionary is bound to act fairly, consistently, and in accordance with law, and cannot extend a statutory benefit to some while arbitrarily denying the same to others similarly situated. On this ground alone, the impugned inaction of the respondents is unsustainable. Reliance is also placed on Zaheer Ahmed and others Versus D.I.G. and

others (2017 P L C (C.S.) Note 21 Lahore) has held that:-

“Appointing Authority is vested with power to withhold such permission to any of its employees but he remained oblivious of subsection (2) of section 4 of the rules ibid which provides as under:-- "If any civil servant applies for permission and is otherwise eligible for recruitment to any other post his application shall always be forwarded." The word "shall" used in the aforesaid law makes it abundantly clear that if a candidate is eligible to apply for other post the competent authority is bound to forward his application. Explanation of said section relied upon by the learned Law Officer reads as follows:-- "The appointing authority may withhold permission to apply, if for reasons to be recorded in writing such permission is considered to be against public interest."

6.No doubt by virtue of the said explanation the Appointing Authority is vested with power to exercise its discretion in this regard but such discretion must be exercised reasonably, judiciously, honestly, objectively and in the public interest.

7.Even on the basis of said explanation the Appointing Authority was bound to pass a written order while declining such request but here in the present case no such order was passed and the petitioners remained in limbo and consequently on their appointment in the new department they were constrained to tender their resignations.”

In Para nine of the same judgment the Honourable Lahore High Court vehemently held that:- “9.It is also evident from the record that one of the colleagues of the petitioners

namely Ghulam Haider No.9006 has been granted departmental permission by respondent No.2 to apply for a job in the Education Department. Thus denial of respondent No.1 for issuance of NOC in favour of the petitioners is sheer discrimination and against the principle of equality. In case reported as Suleman Daud v. Lahore Development Authority through Director General (2008 CLD

850)it has been laid down as under:-- "The concept of equality is indeed negation of arbitrariness. Every power has its extent and legal limits. The exercise of such power should be based on fairness and reasonableness. Persons in similar circumstances should have similar treatment, unless the differentiation is based upon a valid classification, which should not have the taint of arbitrariness that is the hallmark of any ideal dispensation of justice."

12.It is an admitted position that a No Objection Certificate (NOC) was issued in favour of the petitioner; however, the stipulation incorporated therein, to the effect that the petitioner shall not have any right of lien, is patently inconsistent with the settled principles of service jurisprudence. Such a condition, being contrary to law, is devoid of legal efficacy and cannot operate to the detriment of the petitioner. The august Supreme Court of Pakistan, in Chief Secretary, Government of NWFP vs. Syed Zafarmand Ali (2005 SCMR 1212), has

authoritatively held that even where a civil servant expresses willingness to be absorbed in a borrowing department, his lien in the parent department does not

stand terminated in the absence of a formal order of appointment by transfer coupled with the finalization of the terms and conditions governing such absorption.

Consequently, until such legal formalities are duly fulfilled, the lien of a civil servant continues to subsist in the parent department, and any condition to the contrary, as contained in the NOC, cannot be sustained in the eyes of law.

13.In view of the above, the instant petition is allowed, and the respondents are directed to grant and protect the lien of the petitioner on his substantive post in the District Judiciary, Mansehra, strictly in accordance with Rule 5 of the Civil Servants (Confirmation) Rules, 1993, read with Rule 4 of the Khyber Pakhtunkhwa Civil Servants (Lien) Rules, The said exercise shall be completed within a period of 30 days from the date of receipt of a certified copy of this judgment.

Announced.

JUDGE

JUDGE

Aftab PS*/ (D.B) Hon’ble Mr. Justice Syed Mudasser Ameer Hon’ble Mr. Justice Aurangzeb