Atia Naveed VS FOP, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.2365 of 2018 Atia Naveed Versus Federation of Pakistan through Secretary, Ministry of CADD and others Date of Hearing: 31.10.2022 Petitioner by: Rana Liaqat Hayat, Advocate, Respondents by: Malik Shaukat Nawaz, learned Assistant Attorney-General, Dr. Agha Ghulam Haider, Dy. Dir (Legal), M/o F.E. & P.T. / respondent No.1.

Mr. S.M. Rehan Naqvi, Deputy Director (Legal), F.D.E. / respondent No.2.

Raja Zubair Hussain Jarral, Advocate for respondent No.3.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner, Atia Naveed, impugns letter dated 12.03.2018 from her parent department / respondent No.3 (i.e., Federal Government Educational Institutions) whereby her request for an extension in her deputation period (which was expiring on 16.04.2018), was turned down and she was directed to report to the Federal Government Degree College for Women, Kohat Cantt.

2.The record shows that on 02.07.2010, the petitioner was appointed as Lecturer (Pakistan Studies) (BPS-17) in the Federal Government Colleges (Cantts / Garrisons) under the Ministry of Defence and on the same day, she was posted at the Federal Government Degree College for Women, Kohat Cantt. On 06.08.2012, she filed an application to be posted at Islamabad so that she could live with her husband, who was employed at the Pakistan Agricultural Research Council, Islamabad.

3.Vide notification dated 02.05.2013 issued by the Federal Directorate of Education (“F.D.E.”), the petitioner was allowed to join her duty as Lecturer (BPS-17) with effect from 17.04.2013 on deputation basis for an initial period of one year or until the “arrival of FPSC nominee” whichever was earlier.

4.Vide notification dated 27.04.2016 issued by the Capital Administration and Development Division, the petitioner’s deputation period was extended for two years i.e., with effect from 17.04.2016 to 16.04.2018. On 20.12.2017, the petitioner applied to the F.D.E. for a further extension in her deputation period on the basis of the wedlock policy. Her application for an extension in her deputation period was also supported by letter dated 21.12.2017 from the Principal of the Islamabad College for Girls, Shalimar Sector G-6/2, Islamabad. Her request for further extension in her deputation period was not acceded to by the F.D.E. Furthermore, the petitioner’s parent department also turned down her request for the issuance of an N.O.C. for a further extension in her deputation period. Vide impugned letter dated 12.03.2018, the petitioner’s parent department directed the petitioner to report for the duty to the Federal Government Degree College for Women, Kohat Cantt. The said letter dated 12.03.2018 has been assailed by the petitioner in the instant writ petition. Furthermore, the petitioner seeks a direction to the F.D.E. not to relieve her from duties.

5.During the pendency of the instant petition, the F.D.E. vide letter dated 22.04.2019 required the petitioner to appear for a personal hearing before the Director General (Education) on 23.04.2019. Vide interim order dated 30.04.2019, this Court suspended the operation of the said letter dated 22.04.2019.

6.During the pendency of the instant petition, the F.D.E. vide letter dated 13.06.2022, again asked the petitioner to appear for a personal hearing on 20.06.2022 on the question whether she can continue to serve as a deputationist in the F.D.E. or be repatriated to her parent department. The F.D.E. has submitted a report according to which the F.D.E. does not require her services. The said report also shows that the petitioner is not in possession of a valid N.O.C. from her parent department for the continuation of her services on deputation basis.

7.Learned counsel for the petitioner was time and again called upon to address arguments but he wanted the case to be adjourned so that the injunctive order continues and as a consequence the petitioner continues to remain on deputation. It

was then decided that this petition would be decided on the basis of the available record. I have culled out the essential facts narrated in paragraphs 2 to 6 above from the record of the instant case.

8.The vital question that needs to be answered is whether this Court can direct the F.D.E. to retain the petitioner’s services on deputation basis even though the F.D.E. (borrowing department) does not want to retain her services and the Federal Government Educational Institutions (Cantts / Garrisons) Directorate (parent department) has refused to issue an N.O.C. for the continuation of the petitioner’s deputation in the F.D.E.

9.The petitioner commenced her services as a deputationist in the F.D.E. on 17.04.2013. The petitioner has served for more than nine years as a deputationist in the F.D.E.

10.The petitioner was holding the position of a Lecturer (Pakistan Studies) (BPS-17) in her parent department before she was sent to the F.D.E. By reason of her deputation in the F.D.E., the post that she is occupying is not being filled in accordance with the method of appointment set out in the notification (S.R.O. 373(I)/2019) dated 15.03.2019 issued by the Ministry of Federal Education and Professional Training (the successor of the Ministry of Capital Administration and Development Division) in exercise of the powers conferred by Rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (“A.P.T. Rules”) and Section 7 (1)(b)(i) and (ii) of the Federal Public Service Commission Ordinance, 1977.

11.For the post of Secondary School Teacher (BPS-17), the said notification provides for the method of appointment to be 50% by promotion and 50% by initial appointment, whereas for the post of Secondary School Teacher (Physical), the method of appointment is 75% by promotion and 25% by initial appointment.

12.In the said notification dated 15.03.2019, it is provided that if no suitable person is available for promotion, the post or posts reserved for promotion shall be filled by initial appointment and failing that by transfer. Paragraph 5 of the said notification provides that appointment by transfer shall be made by selection from amongst the persons holding appointment on regular basis

under the Federal Government in the same basic pay scale in which the post to be filled exists, provided that the person concerned possesses the qualifications and experience prescribed for initial appointment to the post concerned.

13.Appointments to posts in BPS-17 in the F.D.E. can be made only in accordance with the method of appointment prescribed in the said notification dated 15.03.2019 and no other. In the case of Muhammad Ali Vs. Province of KPK (2012 SCMR 673), it has been held inter alia that the principles of good governance required every appointment in government service to be made in accordance with the relevant rules and completion of codal formalities. Additionally, in the case of Syed Mubashir Raza Jaffari Vs. Employees Old-Age Benefits Institution (2014 SCMR 949), it has been held inter alia that appointments to public offices were to be made strictly in accordance with the applicable rules and regulations.

14.The consequence of the continuation of the petitioner’s services on deputation in the F.D.E. is that the F.D.E. has not been able to initiate the process for appointment to the post (which is presently occupied by the petitioner) in accordance with the method of appointment provided in the said notification dated 15.03.2019. The petitioner’s parent department, vide letter dated 12.03.2018, has called upon her to report for duty to Federal Government College for Women, Kohat Cantt. 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 A.P.T. 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 moreso 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.

15.The question that whether a deputationist can claim a vested right to remain on deputation indefinitely or until their spouses/family members continue to reside in Islamabad regardless for the fact that the borrowing department no longer wants to retain their services or the parent department is seeking their repatriation already stands answered by this Court in the case of Muhammad Masroor-ul-Haq Vs. Federation of Pakistan through Secretary, M/o Overseas Pakistan and HRD, Islamabad (2017 PLC (CS) 1365) in the following terms:- “17. It is indeed not pleasant for a husband and wife with school going children to be working in different provinces. But the law cannot be circumvented to bring them to the same station. The question that crops up in the mind is that whether a person posted on deputation at a particular station can claim to remain so posted for all the period during which his or her spouse remains posted at such a station, regardless of decision of the borrowing department to repatriate the deputationist to the parent department. I would think not. To hold in favour of such a deputationist would be tantamount to disregarding the innumerable authorities from the Superior Courts that no legal or vested rights were available to a deputationist to serve his entire period of deputation in borrowing department. Interestingly, the petitioner was not sent on deputation for any specific period. In the case of Mst. Robia Ayub Vs. Federation of Pakistan, (2013 PLC (CS) 915), the petitioner had challenged the repatriation to the parent department on the ground that it was contrary to inter-alia the wedlock policy. The petitioner in that case had also prayed for a direction to the borrowing department to absorb her. This Court dismissed the writ petition by inter-alia holding that the petitioner's claim on the basis of the wedlock policy was not justifiable. Furthermore, it was held as follows:- "10. The law on the subject is very much clear. The petitioner is a civil servant and remained on deputation for a fixed term and was returned to her parent department in consequence of terms and conditions of her deputation. A deputationist cannot remain on deputation for an indefinite period or stipulated period in accordance with his/her own whims and wishes. While taking this view, I am fortified by a judgment rendered by the Hon'ble Apex Court in the case of Dr. Shafi-ur-Rehman Afridi v. CDA Islamabad through Chairman and others (2010 SCMR

16.Additionally, in the case of Asma Shaheen Vs. Federation of Pakistan (2013 PLC (C.S.) 391), this Court spurned the plea that a

deputationist cannot be repatriated due to the wedlock policy. At paragraph 13 of the said judgment, it has been held as follows:- “13. From the plain reading of above said wedlock policy, it is obvious that the word "may" has been used in the said letters and not "shall". It has never been stressed that all the deputationists whose spouses are working at Islamabad shall must be absorbed or will continue to serve at Islamabad. As regards the contention that some of deputationists have been absorbed, the same cannot be taken into consideration, for the simple reason that it was the discretion of the competent authority to absorb some of deputationists according to requirement of department, capabilities, know how, performance, qualification, general reputation and on the basis of annual confidential reports. The others cannot claim the same treatment as of right. The deputation is a contract and if borrowing department does not need the services of a deputationist, he or she must go back to parent department and thus no fundamental rights of the petitioners have been infringed and no provisions of Constitution have been violated. Learned counsel for the petitioners have failed to rebut the contention of learned Deputy Attorney-General that at present no deputationist is being absorbed. There appears no political element with regard to repatriation of the petitioners to their parent departments.”

17.It is settled law that a deputationist may not necessarily complete the tenure for which he / she was sent on deputation, and power is vested with the competent authority to repatriate a deputationist without assigning any reason. In case of transfer on deputation, no vested right accrues 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. Reference in this regard may be made to the law laid down in the cases of S. Masood Abbas Rizvi Vs. Federation of Pakistan (2014 SCMR 799), Pakistan Vs. Fazal Rahman Khundkar (PLD 1959 SC 82), Abdul Majeed Vs. Chief Secretary, Punjab (2015 PLC (C.S.) 1381), and Lal Khan Vs. Employees Old Age Benefit Institution (2010 PLC (C.S.) 1377).

18.The petitioner is occupying the post of Lecturer (BPS-17) which the F.D.E. asserts that is a post meant for initial recruitment. The retention of a deputationist beyond the maximum permissible deputation period of five years operates to deprive employees which are waiting to be considered for promotion or candidates who are eligible to be appointed against such posts. The F.D.E. ought to take emergent steps to fill all

vacant posts in the F.D.E. strictly in accordance with the method of appointment prescribed in the relevant recruitment rules / policy.

19.In view of the above, the instant petition, being devoid of merit, is dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN OPEN COURT ON 07.11.2022.

JUDGE

Sultan*