Muhammad Ejaz VS Secretary, M/o Interior etc.

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.1898 of 2023 Muhammad Ejaz Versus Ministry of Interior and another

S. No. of Date of Order with signature of Judge and that of parties or order/ order/ counsel where necessary. proceedings Proceedings

04.04.03.2024 Mr. Tahir Hussain Anchan, Advocate for the petitioner.

Mr. Arshid Mehmood Kiani, learned Deputy Attorney-General.

Ms. Asia Batool, learned Assistant Attorney- General.

Through the instant writ petition, the petitioner, Muhammad Ejaz, an ex-employee of the President’s Secretariat, seeks a direction to respondent No.1 to unblock his passport.

2.Learned counsel for the petitioner submitted that the petitioner is presently abroad and therefore, seeks the unblocking of his passport so as to enable him to travel to Pakistan; that the petitioner was serving as Khidmatgar (BS-06) in the President’s Secretariat; that the disciplinary proceedings against the petitioner culminated in the imposition of major penalty of dismissal from service; that there are no dues that the petitioner has to pay to the President’s Secretariat; that no criminal case has been registered against him; and that in these circumstances, respondent No.1 did not have the authority to block the petitioner’s passport. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

3.On the other hand, learned Deputy Attorney- General submitted that vide office order dated

19.01.2023 issued by the President’s Secretariat, major penalty of dismissal from service was imposed on the petitioner for unauthorized absence from duty; that vide office letter dated 19.01.2023, the President’s Secretariat had requested the Directorate General of Immigration and Passports not to issue a passport to the petitioner without the prior approval of the Military Secretary to the President; that the petitioner’s name was placed in the Passport Control List (“PCL”) on the recommendations of the President’s Secretariat; that the petitioner’s name would be removed from the PCL if the President’s Secretariat issues a direction in this regard; that Rule 21(d) of the Passports Rules, 2021 permits the Directorate General of Immigration and Passports not to issue a passport to a person who is a deserter or delinquent of government service recommended by respective department; and that there is no impediment for the issuance of a travel document to the petitioner which would enable him to travel to Pakistan from Saudi Arabia. Learned Deputy Attorney-General prayed for the writ petition to be dismissed.

4.I have heard the contentions of the learned counsel for the petitioner and the learned Deputy Attorney-General and have perused the record with their able assistance.

5.The record shows that the petitioner was in employment of the President’s Secretariat as a Khidmatgar (BPS-06). Office order dated 01.12.2022 from the President’s Secretariat shows that minor penalty of reduction to three stages in pay scales for a period of one year was

imposed on the petitioner due to misconduct on account of concealment of profession as government servant while getting a passport and travelling to a foreign country without obtaining departmental N.O.C.

6.On 09.01.2023, show cause notice was issued to the petitioner for unauthorized absence from duty and not resuming his duties by 01.12.2022. The proceedings pursuant to the said show cause notice culminated in the issuance of office order dated 19.01.2023, whereby major penalty of dismissal from service was imposed on the petitioner. It appears that the petitioner was abroad when the said office order was issued. The President’s Secretariat had also required the Directorate General of Immigration and Passports not to issue a passport to the petitioner without approval of the Military Secretary to the President. It is due to this request that the Directorate General of immigration and Passports is not issuing a passport to the petitioner. This has furnished the petitioner with a cause of action to file the instant petition.

7.The petitioner was proceeded against under Government Servants (Efficiency and Discipline) Rules, 1973 (“E&D Rules”). There is no provision in the said Rules for a penalty to curtail an employee’s right to travel enshrined in Article 15 of the Constitution. It is an admitted position that there are no dues that the petitioner has to pay or liability that he has to discharge with respect to his employment with the President’s Secretariat. It is also not disputed that there is no criminal case against the petitioner for which his presence is

required in Pakistan. Therefore, I am of the view that the restraint placed on the petitioner regarding the non-issuance of the passport to him is not just unlawful but a violation of his fundamental right to travel. Indeed, Rule 21(d) of the Passports Rules, 2021 provides that a deserter or delinquent of government service may not be issued a passport if there is a recommendation to such effect by the respective department. However, it is the gravity of the misconduct that a delinquent officer has committed that has to be judged in order to determine whether it warrants the denial of the fundamental right of an employee. In the case at hand, I find the inaction on the part of the Directorate General of Immigration and Passports by issuing a passport to the petitioner to be wholly disproportionate to the misconduct committed by him for which he had already been punished.

8.In view of the above, the instant petition is allowed. The non-issuance of a passport to the petitioner by the Directorate General of Immigration and Passports on the request of the President’s Secretariat is declared to be without lawful authority. The said Directorate is directed to process the petitioner’s application for the issuance of a passport strictly in accordance with the law.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan