Shabana Aziz VS FOP, etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

I.C.A.No.21 of 2022 Shabana Aziz Versus Federation of Pakistan and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 24.01.2022 Mr. Muhammad Asif Gujjar, Advocate for the appellant.

Through the instant intra Court appeal, the appellant, Shabana Aziz, impugns the order dated 18.01.2022 passed by the learned Judge-in- Chambers whereby writ petition No.154/2022 filed by the appellant was dismissed in limine. Through the said writ petition, the appellant / petitioner had assailed notification dated 03.01.2022 issued by the Federal Directorate of Education (“F.D.E.”) whereby the appellant was repatriated to her parent department (i.e., Khyber Pakhtunkhwa Workers Welfare Board) on completion of the maximum deputation period of five years.

2.Learned counsel for the appellant submitted that the appellant had a legitimate expectation of continuing to serve as a deputationist in the F.D.E. on the basis of the wedlock policy set out in the notification SRO No.375(I)/2012; that the appellant could not be repatriated to her parent department without considering her for permanent absorption in the F.D.E.; and that the appellant had school going children at Islamabad and if she is repatriated, her family life would be disturbed. Learned counsel for the appellant prayed for the appeal to be allowed and for the impugned order dated 18.01.2022 to be set-aside.

3.We have heard the contentions of the learned counsel for the appellant and have perused the record with his able assistance.

4.The record shows that vide letter dated 13.12.2016 from the Capital Administration and Development Division, the services of the appellant were borrowed as a deputationist and she was posted at the Model School set up under the F.D.E. At that stage, the appellant was serving as Subject Specialist (Biology) at Folks Grammar Higher Secondary School, Dera Ismail Khan, Government of Khyber Pakhtunkhwa. Subsequently, on 04.01.2017 she was posted against the vacant post of Senior School Teacher (BPS-17) at the Islamabad Model College for Girls, G-6/1-4, Islamabad. On 10.02.2020, her deputation period was extended for a period of two years with effect from 21.12.2017 to 20.12.2019. The appellant’s parent department has issued a No Objection Certificate (“NOC”) for an extension in the appellant’s deputation period up to 20.12.2021. The appellant’s application for a further extension in her deputation period has not been granted.

5.Vide notification dated 03.01.2022, the appellant was repatriated to her parent department on the ground that she had completed five years of service as a deputationist and that her parent department had refused to extend her deputation period beyond the said date.

6.In paragraph 68 of the judgment in the case of Nusrat Rasheed Vs. Federation of Pakistan (2021 PLC (C.S.) 777), this Court held as follows:- “68. A sine qua non for an officer to continue serving as a deputationist is the consent of the parent department. The wedlock policy and/or the proviso to Rule 20A of the APT Rules cannot operate to stop or stall the reversion of a deputationist to his parent department where such department declines to extend the deputation period or asks for the reversion of the deputationist to his/her own cadre. Establishment Division’s O.M. No.10/30/97-R-II dated 28.01.2020 provides that where the parent department of the deputationist does not agree to issue an N.O.C. for a further extension of

deputation under the wedlock policy, the incumbent shall be repatriated to the parent department. Similarly, a deputationist, whether or not sent on deputation under the wedlock policy, cannot be thrust upon a borrowing department which is unwilling to retain the services of such a deputationist. This is more so where the recruitment rules require the post occupied by a deputationist to be filled through promotion or initial appointment. The method of appointment prescribed in the recruitment rules cannot be ignored, and merit cannot be given a go-bye in order to keep spouses at the same station. An order for the repatriation of a deputationist would imply that the process initiated for the permanent absorption of the deputationist had been brought to an end. In the case of Dr. Shafi-ur-Rehman Afridi Vs. CDA, Islamabad (2010 SCMR 378), it has been held by the Hon'ble Supreme Court of Pakistan that a deputationist cannot be treated as an “aggrieved person” because he has no vested right to remain on a post as deputationist forever or for a stipulated period as mentioned in notification and can be repatriated at any time. The mere initiation of the process for a deputationist’s absorption in the borrowing department or the issuance for an N.O.C. by the parent department does not arm the deputationist with a vested right to be absorbed. In the case of Mst. Robia Ayub Vs. Federation of Pakistan (2013 PLC (C.S.) 915), this Court held as follows:- “I have no hesitation to hold that “deputation” is 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 against which the deputationists cannot claim any right of permanent absorption.””

(Emphasis added)

7.Admittedly, at no material stage, was any order passed for the appellant’s absorption in the F.D.E. In case of Senate Secretariat Vs. Faiqa Abdul Hayee (2014 SCMR 522), it has been held by the Hon'ble Supreme Court of Pakistan that absorption was not a vested right of an employee and the employer had the right and authority to terminate the deputation period or repatriate the employee back to his / her parent department. In case of Mst. Robia Ayub Vs. Federation of Pakistan, (2013 PLC (C.S.) 915), it has been held by this

Court that a deputation, being a contract, a deputationist would have no vested right to remain / continue on deputation or his / her permanent absorption.

8.In view of the above, we do not find any merit in this appeal which is accordingly dismissed in limine.

(ARBAB MUHAMMAD TAHIR) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

Sultan*