Gazala Kausar VS GOP, M/o Education, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.2147 of 2020 Mrs. Ghazala Kausar Versus Government of Pakistan through Ministry of Federal Education, Islamabad and others Date of Hearing: 15.08.2022 Petitioner by: Mr. Irfan Farooq, Advocate, Respondents by: Mr. M. Shakeel Awan, learned Assistant Attorney-General, Dr. Ghulam Agha Haider, Deputy Director (Legal) for respondent No.1, Mr. S.M. Rehan Naqvi, Deputy Director (Legal) for respondent No.2.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner, Mrs. Ghazala Kausar, impugns the office order dated 27.07.2020 issued by the Federal Directorate of Education (“F.D.E.”) whereby she was repatriated to her parent department (i.e., School Education Department, Government of the Punjab, Lahore).

2.The record shows that the petitioner”s parent department is School Education Department, Government of Punjab, Lahore. Letter dated 25.08.1991 from the F.D.E. shows that the petitioner was selected for appointment by transfer against the vacant post of Matric Trained Teacher (“M.T.T.”) on a tenure basis on the terms and conditions mentioned in the said letter. The F.D.E. has reserved the right to revert the petitioner to her parent department at any time on one month”s notice. The petitioner”s seniority was to be considered from the date of her permanent absorption at the F.D.E. Vide office order dated 20.10.1991 issued by the F.D.E., the petitioner was posted at the Federal Government Girls Primary School, Maira Begwal (F.A.), Islamabad for a period of two years. Prior to the issuance of the said office order, the petitioner was serving against the post for teacher having Primary Teaching Certificate (“P.T.C.”) in Government Girls Primary School Khareri, Tehsil Murree, District Rawalpindi, Government of Punjab. Vide office order dated 27.03.1997 issued by the F.D.E., the petitioner was

repatriated to her parent department upon the completion of her deputation period. Vide letter dated 29.04.1997, the petitioner”s parent department informed the F.D.E. that since the deputation period of the petitioner was more than five years with F.D.E. and under the existing deputation policy, her lien in the parent department had automatically been terminated, she may be absorbed in the F.D.E. or allowed to continue in the F.D.E. against her present post.

3.The petitioner has assailed F.D.E.”s letter dated 27.03.1997 before the Hon'ble Lahore High Court, Rawalpindi Bench in writ petition No.949/1997. Vide interim order dated 05.05.1997, the operation of the said letter dated 27.03.1997 was suspended. It appears that the said writ petition was finally dismissed vide order dated 30.04.1998 and so was the petitioner”s intra Court appeal No.45/1998 vide order dated 25.05.1998. The petitioner assailed the said concurrent orders in civil petition No.923/1998 before the Hon'ble Supreme Court. During the pendency of the said petition before the Hon'ble Supreme Court, the Establishment Division addressed Office Memorandum (“O.M.”) dated 26.11.1998 to the Ministry of Education, Islamabad on the subject of absorption of female teachers on deputation to Federal Government schools at Islamabad from Provincial Education Departments. The said O.M. shows that information was sought regarding formal concurrence of the Provincial Governments to the permanent absorption of their employees in the Federal Government and confirmation to the effect that the husbands of the lady teachers proposed to be absorbed were working under the Federal Government at Islamabad. The Trained Under Graduate Teachers and Matric Trained Teachers whose pay scales were not at par with the Federal Government for similar posts could not be absorbed since under Rule 9 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (“the 1973 Rules”), appointment by transfer was permissible only from persons serving in the same basic pay scale.

4.Civil petition No.923/1998 filed by the petitioner was disposed of by the Hon'ble Supreme Court vide order dated 04.12.1998 with the observation that it would be appropriate if no further action was taken against the petitioner for the period of three months and in the meantime, if some action is taken pursuant to the office memorandum

dated 26.11.1998 issued by the Establishment Division, the same may be implemented otherwise the petitioner will be repatriated to her parent department. The said order was passed after the Hon'ble Supreme Court was informed by the counsel representing the Advocate-General Punjab that the petitioner still had a lien over her post in her parent department.

5.Vide letter dated 21.02.2000, the F.D.E. sought an N.O.C. from the petitioner”s parent department for her permanent absorption in the F.D.E. Vide letter dated 04.03.2000, the petitioner”s parent department issued an N.O.C. for her permanent absorption in the F.D.E.

6.It appears that on 19.08.2000, the Departmental Selection Committee considered the petitioner along with other deputationists for appointment by transfer / permanent absorption but did not recommend her for appointment by transfer / permanent absorption in the F.D.E. on the ground that she does not fulfill the prescribed qualification for the post of M.T.T. under the existing Recruitment Rules. The petitioner had obtained third division in her matriculation which did not fulfill the prescribed qualification for the post of M.T.T. under the Recruitment Rules. However, the Departmental Selection Committee recommended that before the petitioner”s repatriation, a reference may be made to the Establishment Division seeking clarification whether her case can be considered in the light of Recruitment Rules of her parent department under which she was appointed on regular basis or her case may be decided in the light of existing Recruitment Rules of the F.D.E. The Establishment Division turned down the case with a copy of instructions regarding seeking clarification.

7.In the light of the above instructions of the Establishment Division, vide office order dated 15.01.2001 issued by the F.D.E., the petitioner was again repatriated to her parent department. Apparently, the said office order was assailed by the petitioner along with other deputationists who had been repatriated to their parent departments in writ petition No.192/2001 before the Hon'ble Lahore High Court, Rawalpindi Bench. Vide order dated 25.01.2001, the Hon'ble High Court directed that the petitioner shall not relinquish her charge. Thereafter, vide office order dated 09.03.2001, the F.D.E. informed the petitioner that in pursuance of the stay order granted by the Hon'ble Lahore High

Court, the said office order repatriating the petitioner to her parent department was held in abeyance till further orders.

8.Writ petition No.192/2001 was transferred to this Court upon its establishment in the year 2008. Vide order dated 19.05.2008, the said writ petition was disposed of after the Director Schools, F.D.E. made a statement that the petitioner”s case would be given a second thought and would be decided within one week on its own merits. It was observed by this Court that the F.D.E. was free to direct repatriation after re-consideration.

9.Vide letter dated 16.07.2008, the F.D.E. allowed the petitioner to improve her grade in matriculation from existing third division within one year and in case of her failure to improve her position, she was to be repatriated to her parent department.

10.Vide office order dated 24.08.2009, the F.D.E. repatriated the petitioner to her parent department due to her 3rd Division in Matriculation / Secondary School Certificate.

11.The petitioner assailed the said repatriation before the Hon'ble Lahore High Court in writ petition No.16582/2009. Vide interim order dated 08.09.2009, the Hon'ble High Court suspended the operation of the petitioner”s repatriation order. The record is silent as to the fate of the said writ petition.

12.The petitioner claims to have improved her position to second division in matriculation. The petitioner has annexed the provisional result card of her Secondary School Certificate Examination issued on 31.07.2013 by the Allama Iqbal Open University according to which she obtained 636 out of 1100 marks equivalent to 58% in Grade-C.

13.Vide letter dated 27.09.2013, the F.D.E. again sought an N.O.C. from the petitioner”s parent department for her permanent absorption in the F.D.E.

14.Vide application dated 24.09.2018 addressed to the Director General, F.D.E., the petitioner sought her permanent absorption in the F.D.E. Vide letter dated 21.01.2019, the F.D.E. informed the petitioner that her request for permanent absorption in the F.D.E. cannot be acceded to as no post in BS-07 presently exists in the F.D.E. against which she may be considered for permanent absorption. In the said

letter, it was also mentioned that the petitioner”s qualification is Matric with P.T.C. whereas as per the Recruitment Rules, the qualification for the post of Elementary School Teacher (“E.S.T.”) (BS-14) is F.A. / F.Sc in 2nd Division with Certificate of Teaching (“C.T.”) There is nothing on the record to show that an order for the petitioner”s permanent absorption in the F.D.E. was passed.

15.Vide office order dated 27.07.2020, the petitioner was repatriated to her parent department. The said office order has been assailed by the petitioner in the instant writ petition. Vide ad-interim order dated 11.08.2020, this Court suspended the operation of the said office order.

16.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that on 27.09.2013, the petitioner”s borrowing department had formally moved a case for her absorption and had sought N.O.C. from her parent department; that as far back as 29.04.1997, the petitioner”s parent department had informed the F.D.E. that she may be absorbed by the borrowing department; that subsequently, on 04.03.2000, the petitioner”s parent department issued an N.O.C. for her permanent absorption in the F.D.E.; that the petitioner had obtained the requisite educational qualifications for her permanent absorption in the F.D.E.; that the petitioner had developed legitimate expectation for her absorption in the borrowing department; that the petitioner has been discriminated against inasmuch as similarly placed deputationists have been absorbed by the F.D.E.; and that the F.D.E. adopted the policy of pick and choose in making absorptions and in this way, the judgment passed by this Court in writ petition No.3503/2019 titled “Mst. Saman Naz Vs. Federation of Pakistan”, has been violated. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

17.On the other hand, the learned Assistant Attorney-General appeared with Dr. Ghulam Agha Haider, Deputy Director (Legal), Ministry of Federal Education and Professional Training and Mr. S.M. Rehan Naqvi, Deputy Director (Legal), Federal Directorate of Education and submitted that the petitioner was considered for permanent absorption in the F.D.E. but she could not be permanently absorbed as although she has been working against the post of E.S.T. (BPS-14), her substantive scale in her parent department was P.T.C. Teacher (BPS-

07); that the petitioner is not eligible to continue serving as a deputationist in view of the law laid down by this Court in the judgment reported as Nusrat Rasheed Vs. Federation of Pakistan (2021 PLC (C.S.) 777); that the petitioner does not possess the requisite qualification for appointment to the post of E.S.T. (BPS-14) for which the required qualification is at least second class intermediate; that the petitioner is presently occupying a post which can be filled by initial appointment; and that the petitioner continued to serve as a deputationist for several years on the basis of injunctive orders passed by the Hon'ble Lahore High Court and this Court. They prayed for the writ petition to be dismissed.

18.I have heard the contentions of the learned counsel for the petitioner as well as the learned Assistant Attorney-General and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 15 above, and need not be recapitulated.

19.Vide order dated 11.12.2020, this case was de-clubbed from writ petition No.194/2020 and connected writ petitions which were all dismissed by this Court vide judgment reported as 2021 PLC (C.S.) 777.

20.The F.D.E. has taken an unequivocal position that neither do they intend to permanently absorb the petitioner in the F.D.E. nor do they intend to retain her services as a deputationist.

21.The record indicates that the petitioner continued serving as a deputationist for several years on the basis of injunctive orders passed by the Hon'ble Lahore High Court in writ petition Nos.949/1997, 192/2001 and 16582/2009 as well as this Court in the instant writ petition.

22.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 & another reported as 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 reported as 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 reported as 2013 PLC (CS) 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 reported as 2015 PLC (CS) 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 reported as 2010 PLC (CS) 1377 (Karachi), 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.

23.On account of the above referred trite law, the petitioner could not have any grievance against her repatriation by the borrowing department to her parent department, which has not been impleaded as a party in this petition.

24.Another vital question that needs to be answered is whether the petitioner could invoke the Constitutional jurisdiction of this Court to prevent her repatriation to her parent department. The law in this regard is also well settled. In the case of Dr. Shafi-ur-Rehman Afridi Vs. CDA, Islamabad through Chairman & others reported as 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.

25.At no material stage has the petitioner been absorbed in the borrowing department. Mere issuance of a “no objection” by the petitioner”s parent department would not give her a vested right for absorption in the borrowing department. This Court cannot issue a direction to the F.D.E. to absorb the petitioner contrary to the requirements of the applicable Recruitment Rules.

26.The contention of the learned counsel for the petitioner that the petitioner has lost her lien with her parent department is not borne out from the record. Indeed the petitioner”s parent department may have

vide letter dated 29.04.1997 informed the F.D.E. that upon completion of five years of the petitioner”s service as a deputionist in the F.D.E., her lien with the parent department has been terminated, the order dated 04.12.1998 passed by the Hon'ble Supreme Court in civil petition No.923/1998 filed by the petitioner clearly shows that the petitioner”s lien with her parent department had not been terminated.

27.Rule 21(1) of the 1973 Rules provides that persons appointed by initial appointment, promotion or transfer shall be on probation for a period of one year whereas Rule 3 of the Civil Servants (Confirmation) Rules, 1993 (“the 1993 Rules”) provides inter alia that the civil servant initially appointed to a post, on probation, including a civil servant promoted or appointed to a post on transfer shall, on satisfactory completion of his probation, be eligible for confirmation in that post. Rule 5(1)(a) of the 1993 Rules provides that 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 holds a temporary post other than a post in the service or cadre against which he was originally appointed. Rule 5(2) of the said Rules provides that a civil servant acquiring a lien under Rule 5(1) shall cease to hold a lien acquired previously on any other post. Fundamental Rule 14-A(a) provides inter alia that “a government servant”s lien on a post may in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.”

28.A government servant on deputation retains lien on the permanent post in his parent office, he/she is ordinarily governed by the rules of the lending government in matters of pay, leave, pension, etc., and continues to be under the rule-making control of the lending government which has a right to recall him. The lien of a government servant holding substantively a permanent post is terminated on his appointment substantively to another permanent post outside the cadre on which he is borne. Therefore, a government servant on deputation from a Provincial Government retains a lien on the permanent post in his parent office till his confirmation in the borrowing department.

29.By operation of law, a deputationist”s lien with his / her parent department terminates only upon confirmation in the borrowing

department i.e., upon the satisfactory completion of his / her probation period after appointment by transfer / permanent absorption in the borrowing department.

30.Since the petitioner had not been permanently absorbed or appointed by transfer in the F.D.E., her lien against her post in the parent department is intact. As long as the petitioner”s status in the F.D.E. continued to be that of a deputationist, the question of the termination of lien with her parent department did not arise. Refusal by the petitioner”s parent department to take her back on duty against the substantive post held by her would be a violation of the law laid down by the Superior Courts in the following judgments:-

(i)In the case of Chief Secretary, Government of N.-W.F.P. Vs. Zafarmand Ali (2005 SCMR 1212), it was held that there was no justification for the respondent”s parent department to have terminated his lien since the competent authority in the borrowing department had neither passed an order for the respondent”s permanent induction or appointment by transfer nor were any terms and conditions of the respondent”s absorption settled between the borrowing and the lending department.

(ii)In the case of Muhammad Israrullah Vs. Assistant Director, Manpower (2005 SCMR 716), it was held inter alia that a deputationist retains his/her lien in the parent department until he/she is confirmed in the borrowing department.

(iii)In the case of Executive Engineer, Provincial Building Circle, Lahore Vs. Muzaffar Bil Haq (2000 SCMR 656), the Hon'ble Supreme Court did not interfere with the findings recorded by the learned Punjab Service Tribunal that since the respondent had never been permanently absorbed in the borrowing department, he continued to be on deputation and therefore his lien could not be terminated in his parent department.

(iv)In the case of Secretary Education Vs. Viqar-ul-Haq (2000 SCMR 1780), the Hon'ble Supreme Court, after referring to Fundamental Rule No.14-A(a), held inter alia that the lien of a permanent civil servant cannot be terminated even with his

consent, and that the same could be terminated only when he was confirmed against some other permanent post.

(v)In the case of Mazhar Ali Vs. Federation of Pakistan (1992 SCMR 435), the Hon'ble Supreme Court, after making reference Fundamental Rules, 13, 14 and 14-A, held as follows:- “According to these, the lien of the permanent civil servants cannot be terminated, even with their consent. It can be terminated only when the civil servant is confirmed against some other permanent post. There is nothing on the record to suggest nor any indication or plea that the Federal Government had confirmed him on any post under the Federal Government. In the absence of such a material or evidence, his lien will be retained with the Punjab Government and notwithstanding the non-specification of the terms and conditions of his deputation, he will be deemed to be on deputation with the Federal Government.”

31.In view of the aforementioned, I do not find any merit in this petition which is accordingly dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN OPEN COURT ON 22.08 2022.

JUDGE

Sultan*