Irfan Munir Sheikh VS FOP, etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.1050 of 2022 Irfan Munir Sheikh 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. 16.03.2022 Raja Khalid Ismail Abbasi, Advocate for the petitioner.

Through the instant writ petition, the petitioner, Irfan Munir Sheikh, who is serving as Research Officer on deputation basis at the Ministry of Overseas Pakistanis and Human Resource Development (“Ministry of O.P&H.R.D.”), impugns order dated 03.10.2021 passed by the Establishment Division whereby his representation against notification dated 02.10.2020 (whereby he was repatriated to his parent department i.e., Zakat and Ushr Department, Government of Sindh) was turned down and he was directed to immediately join his duties at his parent department.

2.Earlier the petitioner had filed writ petition No.2039/2021 before this Court assailing notification dated 02.10.2020 issued by the Establishment Division whereby he was repatriated to his parent department. The petitioner’s case in the said writ petition was that since the borrowing department i.e., the Ministry of O.P.&H.R.D. had withdrawn notification dated 20.08.2020 whereby he had been repatriated to the Establishment Division, the Establishment Division should not have repatriated him to his parent department. The said writ petition was converted into the petitioner’s representation and referred to the Establishment Division for a decision after affording an opportunity of a hearing to the petitioner.

3.The petitioner has been afforded an opportunity of hearing pursuant to the order dated 16.06.2021 passed by this Court in writ petition No.2039/2021 and vide the impugned order dated 03.10.2021, his earlier repatriation notification dated 02.10.2020 has been maintained.

4.Learned counsel for the petitioner submitted that the petitioner has a vested right to continue serving as a deputationist in the borrowing department i.e., Ministry of O.P.&H.R.D.; that earlier the petitioner had been repatriated by the borrowing department to the Establishment Division but the said repatriation order was subsequently withdrawn; that the Establishment Division should have taken into account the fact that the petitioner’s borrowing department has withdrawn his repatriation orders before repatriating him to his parent department; that there is no inquiry pending against the petitioner in his parent department; that vide notification dated 01.07.2020 issued by the Ministry of O.P.&H.R.D., the petitioner was granted leave on medical grounds from 29.04.2020 to 25.06.2020; and that the petitioner has not been paid his salary for several months. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

5.I have heard the contentions of the learned counsel for the petitioner and have perused the record with his able assistance.

6.The petitioner is a BPS-17 officer in the Zakat & Ushr Department, Government of Sindh. Vide notification dated 14.06.2019 issued by the Establishment Division, the petitioner was transferred to the Ministry of O.P.&H.R.D. and posted as a Research Officer on deputation basis.

Vide notification dated 20.08.2020 issued by the Ministry of O.P.&H.R.D., the petitioner was repatriated to the Establishment Division. Subsequently, vide impugned notification dated 02.10.2020 issued by the Establishment Division, the petitioner was repatriated to his parent department. After the issuance of the impugned notification, the Ministry of O.P.&H.R.D., vide notification dated 16.03.2021, withdrew its earlier notification dated 20.08.2020 whereby the petitioner had been repatriated to the Establishment Division.

7.The petitioner filed writ petition No.2039/2021 before this Court voicing his grievance that despite the withdrawal of the notification dated 20.08.2020 by the Ministry of O.P.&H.R.D., the Establishment Division had not withdrawn the notification dated 02.10.2020 whereby he was repatriated to his parent department. It was in these circumstances that this Court vide order dated 16.06.2021 transmitted the said writ petition to the Establishment Division with the direction to treat it as the petitioner’s representation and decide the matter after affording him an opportunity of hearing.

8.After the petitioner was heard by the Establishment Division, the latter has issued the impugned order dated 03.10.2021 whereby his repatriation notification dated 02.10.2020 has been maintained. In the said order dated 03.10.2021, it has clearly been mentioned that the Ministry of O.P.&H.R.D.’s notification dated 16.03.2021 (whereby the petitioner’s repatriation was withdrawn) had been withdrawn vide notification dated 23.07.2021. The said notification dated 23.07.2021 is annexed at page

26 of this petition according to which the earlier notification dated 16.03.2021 has been withdrawn. This shows that the petitioner’s borrowing department does not want to retain his services as a deputationist.

9.This Court cannot thrust the petitioner on the Ministry of O.P.&H.R.D. which does not want to retain his services. The impugned order dated 03.10.2021 contains strong reasons why the petitioner’s services as a deputationist ought not to be retained by the borrowing department.

10.It is settled law that a deputationist may not necessarily complete the tenure for which he was sent on deputation and the power vested with the competent authority to repatriate a deputationist without assigning any reason. 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 Vs. Fazal Rehman Khundkar (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, re-placing the services of such an officer at the disposal of his parent Government.

(ii)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 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)In the case of Mst. Robia Ayub Vs. Federation of Pakistan (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)In case of Abdul Majeed Vs. Chief Secretary, Punjab (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)In case of Lal Khan Vs. Employees Old Age Benefit Institution (2010 PLC (C.S.) 1377), 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 to parent department at any time.

11.On account of the above referred trite law, the petitioner could not have any grievance against his repatriation by the borrowing department to his parent department. Another vital question that needs to be answered is whether the petitioner could have invoked the Constitutional jurisdiction of this Court to prevent his repatriation to his parent department. The law in this regard is also well settled. 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. At no material stage, has the petitioner been absorbed in the borrowing department.

12.By reason of the aforementioned, I do not find any merit in this petition which is accordingly dismissed in limine.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*