Saifullah Jokhio and 03 others VS FOP etc

JTTDGilIIEIiIT S,TIEDT tN tng ISLAilIABAD HIQE COURT. ISLAWBAD JTI I'ICIAL DEPARTfrIENT

W.P. No.27O3 of 2072 Sc;ftullah Jokhio etc.

Vs.

Federation of Pakisfun etc' PETITIONER BY: M/ s Shah Khautar, ASC, Sardar Ucisir Ahmed Saghir and Aamir Rehman Mughal, Adu ocates

RESPONDENT BY, Mr. Tariq Mehmood Jehangii, learned DAG Barrister Sajeel Sheryar and Ch' Hassan Murtaza Mann, Aduocate for Respondent No.71.

Mr. Qaisar Masud, D.D (Laut), FIA' Mr. Zarnab Khattak, SuPdt. Estb' Diuision.

DATE OF DECISION: 06.06'2013

,HAIIKAT AZIZ SIDDIOIIT 1; Instant writ Petition was which is disposed of by means of short order dated 06.06.2013 reproduced here in below:-

For the reasons to be recorded later on, instant petition isallowedwiththedeclarationthatinductionofrespondent Nos.4to4SintheFlAondeputationfollowedbyabsorptionis basedonpoliticalconsiderations,unprecedented,illegal, unconstitutional,besidesthedictumslaiddownbytheapex and merit' Court and principles of transparency' fairness The btinging of respondent Nos' 4 to 48 to FIA is not

resultofanycredibleprocessratherconsequenceof-dubious mannerism,pollutedapproachwhichitselfisrarity.Respondent Nos. 4 to 4g are directed to be repatriated to their parent

departments in the grade/position they were holding prior to

comingtotheFlA.Itisfurtherdirectedthntonrelievingthe deputationiststhepostswhichbecomevacantandarehundred through promotion percent promotion posts' same may befilled

rules permit to on the principle of seniority-cum-fitness and if then all such induct any person directly for the vacant posts posts must be filled through competitive process' Respondent

Nos.4to4Sberelieved/repatriatedtotheirporent deP artme nt s, for thw ith'

jurisdiction of this

2.Petitioners invoked the constitutional courtbywayoffilingtheinstantwritpetitionwiththe following Prayer ;-

"ItisthereforerespectfutlyprayedthatthisHon'blecourtmcy issue awrit of Quo Warranto" to the extent that ;-

To call upon the private respondents to submit as to under what (a) authority of law respondents No 4 to 48 are holding their as mentioned in the title of the petition and on respective ffices they may be teated as their failure to show the lawful authority' usurper and be ordered to cease to hold such ffice forthwith' Respondents No 1 to 3 be directed to re-evaluate and examine

O).

thecasesofprivaterespondentsonthetouchstoneoftheFlAAct 1974 and FIA (APT) Rutes 1975 and if fomd to be appointed

against said Act and Rules' the private respondents be

repatriated to their parent departments ' of respondents No 19

(c)Declaration that the process of absorption to36 in FIA is illegal andvoid'

and appropriate under (d). To grant any other relief which deem fit the circumstances of the case'"

And Presented the facts as under:- [email protected]/officersofFederal aggrieved of the illegal Investigation Agency (FIA) and are process carried out by respondent No 3 of bypassing and

erodingtheFlAAct|974andFIA(APT)RulestgT5through in different pay scales which the appointments have been made Government and from different Federal Government' Semi ProvincialservicesintoFlAwhichactisdetrimentaltothe Seniorityandpromotionrightsofthepetitionersandthatthisis

aglaringexampleofillegalpracticethroughwhichrespondent Nos.4to48havebeenpickedupfromdifferentdepartmentson political consideration and have been posted in FIA on different

positionsinBPS|6,|7,18&lgasshowninfourcategoriesof the list annexed with the petition'

Moreover, the respondent Nos'11 & 36 were

consideredandabsorbedbyrespondentNo3bubypassingand eroding the provisions of FIA (APT) Rules 1975 through

on 15 & 16 of August Departmental Promotion committee held FIA authorities zotz.It is further maintained that this act of the isillegal,voidab-initioandgrossviolationofthelawandalso petitioner guaranteed violations of the fundamental rights of the underconstitutionofthelslamicRepublicofPakistan,l9T3, duty of this agency is to on the ground that basic function and enquireandinvestigatetheoffencesspecifiedinscheduleofthe FIAActlgT4,thatunderSection15ofFIAActlgT4this agencyhasallthepowerstoinvestigatethecrimesspecifiedin theschedutewhichthepolicedohaveundertheCr.PCatthe provincial level. That rute (3) of the FIA (APT) Rules 1975'

procedureofappointmentshasbeenprovided'accordingto made by following which appointments in FIA shall be

method

basis in the a. By promotion of petsons employed on regalar AgencY.

of the b. By transfer of person from other departments Governments on Federul Government and the Provincial deputationfot a specifted period; and c. BY direct aPPointment'

3.Petitioners contended that there afe six groups within the agency for the purpose of promotion, direct appointments and transfer as provided in Rule 12 of the FIA (APT) Rule 1975 ;-

o Investigation.

(it)Accounts.

00 Customs.

@ Income Tax.

(v)Engineering.

(vr)Legal

Petitioners have funher maintained that Rule 5 0f the supra Rules clearly depicts that post in Grade 19 shall ordinarily be filled by promotion of officers of Grade 18 serving in the Agency on regular basis and it is clear that there

could be no appointment in BPs 19 by way of transfer and

defines the subsequent absorption, that Rule 2 (e) of supra rules Departmental Selection Committee constituted for the purpose

of making selection for direct appointments or by transfer throughpostinFlAinBPSlsandbelowandonlythe Departmental Selection Committee is competent to make

selection of BPS 18 and below. That Rule 6 providedthat 50Yo

ofpostsfromBPS16,|7&lSshallbefilledbypromotionof officersservinginAgencyonregularbasisprovidedthatifno suitable officer is serving in agency on regular function'

post may be filled experience and length of service is available, bytransferordirectappointmentandincaseofappointmentin 8PS.18,50%ofpostsshallbefilledbypromotionamongstthe remaining 50% officers of the agency on regular basis and no appointments all0cated to the police cadre (psp), therefore

can be made in the grade 18 by transfer on deputation and subsequent absorption thereof. That as far as grade 17 and below are concerned, the officers from other departments can only be requi-sitioned on deputation having fulfilled the qualification and experience required for the 06 groups of FIA as mentioned in Rule 12. Thaf it is mandatory upon respondent No 3 that all the direct appointments in BPS 16 & L7 be made on the basis of examination held by Federal Public Service Commission (FPSC) and this method of appointment has not been followed deliberately to open flood gate of favoritism to induct the people on political consideration. On the other hand the respondent Nos.l, 3, 4, 5, 7, 8, tl & 20 filed their replies and para wise comments and raised following preliminary objections;-

t. That petitioner has no cause of action as the respondents have been adjusted against the post reserved for direct/ PSP Quota.

as u. That writ petition in service matter is not entertainable in terms of Article 212 of constitution of the Islamic RepublicOfPakistan,assuchFederalserviceTribunal has jurisdiction in the matter'

ut. That matter is already pending sub-judice before the Hon,bleSindhHighCourtKarachiinCPLAD-422/2012 CPLA 42j/2012 filed filed by Hafeez Ullah and others and by Muhammad Anwar & others'

4.Learnedcounselforthepetitionershaveargued that the private respondents did not meet the requirements as

of the specified in the FIA (APT) Rules 1975, that deputation absorption respondents No 4 to 48 in FIA and their subsequent laws and rules and is in gross violation of the above mentioned

same be declared as illegal and void-ab-initio. Learned counsel for the petitioner has fuither argued that writ petition is competent as in this writ petition the service matters are not in issue but actually the writ petition is against the illegal acts of the respondents whereby they showed favoritism and they also succumbed to political pressure by taking the respondents No 4 just to 48 in FIA who are absolutely unskilled persons and will be burden on the panel of the agency who has to cope up and frght against terrorism as well as to curb white collar crimes'

5.on the other hand the learned counsel for the respondents while highlighting the averments of the para wise

comments has argued that the respondent Nos.4 to 48 had been

taken on deputation from different departments after approval of the competent authority under Rules 3 & 15 of the (APT) Rules 1975 aga\nst the vacant posts reserved for direct quota

and PSP cadre. Learned counsel has further argued that some

of the deputationists who fulfill the requisite qualification / experiencequatherespectivepostshavebeenappointedby transfer in FIA on the recommendations of the Departmental

SelectionCommittee(DSC)andwiththeapprovalofthe competent authority strictly under Rule 16 of the FIA (APT)

quota in Rules 1975 against the post reserved for the direct order to strengthen the professional capability of the agency

without disturbing the promotion quota' therefore the

deputationoftheseofficersandappointmentsbywayof promotion of the transfer have not effected the seniority and counsel have petitioners and other officers of FIA. Learned

further argued that all the appointments have been made strictly in accordance with the Rules 15 &, 16 of the FIA (APT) Rules Ig75, that Rule 5 prescribes that post in Grade 19 shall ordinarily be filled by promotion of officer of Grade 18 serving in the agency on regular basis. It is further contended that 29 posts are reserved for promotion quota of FIA against which 15 Additional Directors BPS-19 and 18 Deputy Directors (BPS-

18)are working at presentty and this means that 04 officers of FIA have been promoted over and above the prescribed quota whereas against 28 posts of Additional Directors / Deputy Directors (lgll8) reserved for PSP cadre and only 13 PSP offrcers are working. Learned counsel has fuither argued that after fulfi[lment of basic and legal formalities the respondents had been taken on deputation in terms of Rule 3,6 and 15 of the

Rules 1975 temporarily for specific period against the posts reserved for PSP cadre to enhance the professional capabilities

of this agency which is quite reasonable and holds merits.

6.As far as respondent No 11 is concerned' it is stated that he is regular Director (BPS-19) of NADRA and his

services were placed at the disposal of the FIA on deputation

terms and basis for an initial period of 03 years on standard conditions as Additional Director BPS-19 on 29'll'2011 by

Ministry of Interior. Learned counsel has argued that

respondentNollhasgivenhisconsentforpermanent i.e. NADRA has absorption in FIA and his parent department

regard but case also issued "No Objection Certificate" in this wasnotconsideredbythe(DPC)ratherhiscasewasplaced

I

before the High Level Department Selection Board. It is further argued that case for recruitments to the post of 18 Assistant Directors Investigation and 56 Inspector Investigation has already been sent to the FPSC through Ministry of Interior, that initial period for deputation is 03 years which is extendable for a further period of 02 years or till the availability of regular incumbent whichever is earlier. Learned counsel has lastly argued that this writ petition should be dismissed' I have heard the learned counsel for the parties, perused the pleadings and went through the applicable provisions/rules.

T.Ifinditappropriatetodecidefirstlytheissueof maintainability of the writ petition. Learned counsel for the respondents have argued that in view of the bar of Article of Constitution of the Islamic Republic of Pakistan, 1973 this writ petition is not maintainable, that if the petitioner is aggrieved of any alleged onslaught on his seniority and

promotion, he may approach the Federal service Tribunal and

that this court has no jurisdiction in the matter. I have considered this contention of the learned counsel for the

substance as in respondents but this contention is without any number of cases the august supreme court of Pakistan has

of the settled the law that the actions of the various departments Government and statutory bodies, if are illegal, malafide and

corum-non-judice then all these actions are amenable to the

courts' In the constitutional jurisdiction of the constitutional

writ petition ih hand, the actual grievance of the petitioners is about the malafide and illegal process whereby some individuals from the other departments are being imported to the FIA without any logic. The locus standi of the petitioners is also apparent as the illegal induction of the certain individuals

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who have never worked in any law enforcement agency and

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they do not carry any experience in the field of law ri

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enforcement, then not only the petitioner, the institution but the nation has to suffer. The objection of the learned counsel for the respondents about the maintainability of the writ petition is repelled in view of the dictums laid down by the august Supreme Court of Pakistan in the case of "Raja Mujahid Muzaffar & others vs Federation of Pakistan & others" (2012 scMR 1651), ,,Rental Power Plant ( 2012 scMR 773), "N{/s Faheem Haider vs Goveflrment of Pakistan and 09 0thers" (2010 GBLR 467), Air Port Security Services Vs Air Port Manager Quaid-e-Azam International Air Port Karachi and others (1998 SCMR 2269), case of IWs [lN Professional corporate Bank Ltd vs Deputy commissioner of Income Tax and others" (2002 PTD 2799) and "Commissioner Inland Revenue vs \rlls Kamal Fabrics" (2012 PTD (Trib) 619).

g. The next objection of the respondents is that in the matter in hand some writ petitions are pending in the Hon'ble Sindh High Court Karachi, therefore, this court should wait for

the decision of those cases from the Hon'ble Sindh High Court Karachi. This contention of the learned counsel for the respondents is without any substance as the matter in issue

and this relates to the department of the Federal Government court has the exclusive jurisdiction to decide this matter' g.AsfaraSthemeritsofthiswritpetitionis concerned, this court are left with no doubt that the prophetic

to reach wisdom or the intelligence of the Plato is not required of to the rational conclusion as the mischief in the induction respondent Nos.4 to 48 in the FIA is apparent, the illegality

is floating on committed during this process and the favoritism the Federal the face of the record. FIA was constituted through Investigation Act Lg74. The preamble of the Act narrates the

that "this agency motive for the constitution of the FIA and it is was constituted for the investigation of certain offences with the committed in connection with the matter concerned thereof'" In the Federal Government and for matters connected scheduletoSection3(1)and6oftheFlAAct,theoffencesand has to investigate the statutes are enumerated in which the FIA the matters. The FIA has been invested with the investigation of

security of the State the sensitive cases as to ensure the internal anditssubject,thereforeenofinousandcardinaldutyisplaced upontheshouldersofthisagencyaSsuchthisagencyshould havetheinternaldisciplineequaltothedisciptineofPak 197 4 and the rules (Army) if not more than that' The FIA Act framedinlgTsunderSectiongoftheActprovidedthe recruitment,promotionandtransferofitsemployees.The the concession/liberty to legislature in its wisdom has granted

theagencytoobtaintheservicesofsuitablepersonson deputationtoenhanceitscapabilitytofighttheterrorismandto

protect the internal security of the state but perusal of the record reveals that these powers have been ridiculously exercised by bringing the respondent Nos.4 to 48 in the agency'

out of these 45 respondents i.e. respondent Nos 4 to 48 most of

and the them have never served in any law enforcement agency courtisunabletounderstandthathowanofficerwhois working in departments tike Employees Old Age Benefit The Institute, The Security Group, Federal Board of Revenue'

NH&MP,

National Bank of Pakistan, PIA, Motorway Police, Punjab, Audit Home and Tribal Department, Jail Department of Department, NADRA, NEPRA, National High Way Authority'

Public Information Group, Art council, Health Department, Punjab, office Relation Department, Public works Department etc could be Management Group, Sindh Assembly' Rangers utilized for any of 06 departments of the FIA. The respondents

arewithoutanyexplanationthatoutofthemillionsofthe were traced, their Govemment Servants how these 45 persons in their names were floated, what were their achievements parentsdepartmentfromwhichtheyhavebeenpickedandwhat feasibilityreportsabouttheirdeploymentintheFlAwere prepared.CertainlytheRules15&16oftheFIA(APT)gives thepowerstotheauthoritiestorequisitiontheservicesofthe . employees working from the different departments of the Federation but this does not mean that the authority has

it in despotic' illegal' unbridled discretionary powers to exercise institution as well as malafide manner in detriment to the

againstthelegalrightsofregularemployees.Rule3oftheFlA

(APT) Rules 1975 provided the procedure of the appointment in the agency which inter alia contains the appointment through promotion, by transfer of person from other department and by direct appointment, whereas Rule 5 of the FIA (APT) Rules 1975 provides in clear words that the post in Grade 19 shall ordinarily be frlled by promotion of officer of Grade 18 serving in the agency on regular basis, but the authority has appointed the person in Grade 19 through transfer which reveals that either there is deficiency of capable officers in the department or authorities are adamantto make their own rules according to their own whims and wishes. The persons should have been taken or may be taken from the other departments to fill up the deficiency of the certain experience and qualification in the existing staff of the agency but not a single person from respondents Nos.4 to 48 has been shown to be possessive of a certain qualrty which was specifically required to the authority and this reveals that all these respondents have been taken on deputation with nefarious design just to accommodate certain individuals in an unfair and un-transparent manner.

10.This court is constrained to observe that posts in FIA are considered as more lucrative not due to salary package and facilities rather due to influence exercised for irrelevant considerations. Every citizenof the country is aware of this fact

that for appointment and transfer to departments like FIA etc'

how much amounts are paid to the persons on helm of affairs' When persons with such cryptic devices land in such

departments, they set their own priorities, instead of curbing the evil of comrption

These are the reasons of short order dated 06.06.2013.

JUDGE

Approved for Repofting.

"Waqar Ahmed"

Uploaded By : Engr. Umer Rasheed Dar