Zia-ud-Din Khattak VS Secretary Government of Pakistan, etc.

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.3601 of 2016 Zia-ud-Din Khattak Versus Secretary to the Government of Pakistan, Establishment Division and others Date of Hearing: 28.02.2018 Petitioner by: Mr. Riaz Hussain Azam Bopara, Advocate. Respondents by: Mr. Ahsan Mehmood Satti, learned Assistant Attorney-General, Mr. Kamran Raffat Deputy (Legal) F.P.S.C.

Mr. Ali Raza Zaidi Deputy Director (Law), for respondents No.3 and 4, Mr. Muhammad Asif Channa A.D. P.E.P.A.

Mirza Waqas Qayyum, and Mr. Muhammad Shoaib Shaheen, Advocates for respondent No.5, Respondent No.5 in person,

MIANGUL HASSAN AURANGZEB, J:- Through the instant the instant writ petition, the petitioner, Zia-ud-Din Khattak, impugns the letter dated 27.09.2016 issued by the Federal Public Service Commission (respondent No.2), whereby Ms. Farzana Altaf (respondent No.5) was recommended to be appointed as Director General (BPS-20) of Pakistan Environmental Protection Agency (“P.E.P.A.”), Ministry of Climate Change, Government of Pakistan.

2.Learned counsel for the petitioner submitted that respondent No.5’s appointment as Director General, P.E.P.A. has been made in violation of the method of appointment prescribed for the said post in the notification dated 09.01.2001 issued by P.E.P.A. in pursuance of Rule 3(2) of the Civil Servants (Appointments, Promotion and Transfer), Rules, 1973; that the method of appointment to the post of Director General, P.E.P.A. prescribed in the said notification is 100% by promotion; that in the said notification, it is provided that if no suitable person is available for promotion, the post reserved for promotion shall be filled by initial appointment and failing that by transfer; that the petitioner was already serving as the senior most officer in P.E.P.A., and was qualified to be appointed by promotion

against the post of Director General, P.E.P.A.; that the seniority list of the Deputy Directors in P.E.P.A. issued on 22.01.2014 shows that the petitioner was appointed in P.E.P.A. on 01.01.1992, and therefore, was senior to respondent No.5; that since appointment against the said post had to be made by promotion, an advertisement inviting applications for appointment against the said post by respondent No.2 could not have been issued; and that the entire process culminating in the appointment of respondent No.5 as Director General, P.E.P.A. was in violation of the method of appointment prescribed in the said notification dated 09.01.2001.

3.Furthermore, learned counsel for the petitioner submitted that on 03.12.2015, an advertisement was published by respondent No.2 inviting applications for appointment against various posts including the post of Director General (BPS-20) P.E.P.A.; that in the said advertisement, it was clearly mentioned that candidates had to have a domicile from the Province of Punjab; that letter dated 14.11.2009 from the Ministry of Environment/ Ministry of Climate Change shows that on 01.07.1998, respondent No.5 was appointed as Deputy Director, P.E.P.A., having a domicile from the erstwhile North-West Frontier Province (“N.-W.F.P.”) (now Khyber Pukhtunkhwa (“K.P.K.”)); that the General Instructions issued by respondent No.2 provided inter-alia that a domicile once claimed by a candidate and accepted by the government for the purpose of admission to an examination/selection cannot be changed subsequently; that on 05.03.1984, a certificate was issued by the Magistrate First Class, Haripur, N.-W.F.P., certifying that respondent No.5 was domiciled in N.-W.F.P.; that after respondent No.5’s marriage, she, on 15.12.1990, obtained the domicile from the Province of Punjab; that respondent No.5’s domicile from N.- W.F.P./K.P.K. was not cancelled until 29.04.2016; that respondent No.5 could not have been appointed as Director General in P.E.P.A. because she was holding a domicile from N.-W.F.P./K.P.K., when she joined service in 1998; that since respondent No.5 had claimed to have been domiciled in N.-W.F.P./K.P.K. when she joined service in 1998, she could not have been appointed as Director General,

P.E.P.A. on the basis of her domicile from Punjab. Learned counsel for the petitioner prayed for the writ petition to be allowed, and for respondent No.5’s appointment as Director General, P.E.P.A. to be declared unlawful.

4.On the other hand, learned counsel for respondent No.5 submitted that notification dated 09.01.2001 was not violated in respondent No.5’s appointment as Director General, P.E.P.A.; that in the said notification, it is clearly provided that appointment against the post of Director General is to be made by promotion, but if no suitable person is available for promotion, the said post could be filled by initial appointment, and failing that by transfer; that the petitioner was qualified to be promoted as Director General, P.E.P.A. when the said advertisement was published by respondent No.2; that the petitioner had filed writ petition No.3637/2015 before this Court seeking a direction for his appointment as Director General, P.E.P.A. through promotion; that vide judgment dated 02.02.2016, the said writ petition was dismissed by this Court; that in the said judgment dated 02.02.2016, this Court had observed that the petitioner had concealed facts from this Court; that earlier the petitioner had filed writ petition No.2596/2015 before this Court, which was dismissed, vide order dated 17.08.2015; that the petitioner had also filed an appeal before the Federal Services Tribunal praying for appointment to the post of Director General, P.E.P.A. to be made through promotion, and to restrain the respondents from initiating any process for direct appointment; that the said appeal was allowed by the Federal Services Tribunal, on 30.05.2017, and a direction was issued to the respondents to consider the petitioner for promotion to the post of Director General, P.E.P.A. subject to the condition that he would complete the Senior Management Course as and when nominated by the department; that the petitioner’s writ petition No.29/2018 was disposed of by this Court, vide order dated 11.01.2018, wherein a direction was issued to place the petitioner’s name before the Central Selection Board as and when he becomes eligible for consideration for promotion to

BPS-20; that the abovementioned orders/judgments clearly show that when the process for appointment to the post of Director General, P.E.P.A. was initiated by respondent No.2, the petitioner was not qualified to be promoted to the said post since he had not completed the Senior Management Course.

5.Furthermore, learned counsel for respondent No.5 submitted that in response to an advertisement dated 20.01.1996, issued by the Ministry of Environment, Government of Pakistan, respondent No.5 applied for the post of Deputy Director (BPS-18) in the said Ministry; that respondent No.5 was appointed to the said post against the Punjab quota, whereas Mr. Irfan Saeed was appointed against the N.-W.F.P./K.P.K. quota; that at the time of her entry into service in 1998, respondent No.5 had claimed her domicile from Punjab, and not from N.-W.F.P./K.P.K.; that after respondent No.5 got married, she obtained domicile from Punjab on 15.12.1990; that after 15.12.1990, respondent No.5 has never claimed her domicile from N.-W.F.P./K.P.K. in order to gain appointment in government service; that the domicile cancellation certificate issued by the Assistant Commissioner, Abbottabad, on 29.04.2016, does not adversely affect respondent No.5’s appointment as Director General, P.E.P.A. because after 15.02.1990, she had never sought appointment in government service on the basis of her domicile issued from N.-W.F.P./K.P.K.; that on 02.05.2016 respondent No.5 had given a declaration to respondent No.2 that she was not in possession of any domicile certificate other than the one from District Attock, and that she had surrendered her earlier domicile from N.-W.F.P./K.P.K.; that the Ministry of Climate Change, vide office memorandum dated 31.10.2016, had clarified to respondent No.2 that respondent No.5’s first appointment, on 01.07.1998, was made against Punjab quota; that the Ministry of Climate Change/respondent No.4, in its written comments, had clarified that in the letter dated 14.11.2009 (on which the petitioner places heavy reliance) respondent No.5’s domicile was indicated to be from N.-W.F.P./K.P.K. as a result of inadvertence; and that in the said written comments, it has been clarified that respondent No.5’s

first entry into government service was on the basis of her domicile from Punjab. Learned counsel for respondent No.5 prayed for the writ petition to be dismissed.

6.Mr. Kamran Raffat, Deputy Director (Legal), Federal Public Service Commission, and Mr. Ali Raza Zaidi, Deputy Director (Law) Ministry of Climate Change, defended respondent No.5’s appointment as Director General, P.E.P.A. by submitting that since respondent No.5 had claimed her domicile from Punjab when she was first appointed in government service as Deputy Director (BPS- 18), there was no legal infirmity in her appointment as Director General, P.E.P.A. on the basis of her domicile from Punjab. Furthermore, they submitted that when the process for appointment to the post of Director General, P.E.P.A. through initial recruitment was initiated, the petitioner was not qualified to be promoted against the said post.

7.I have heard the contentions of the learned counsel for the contesting parties, and have perused the record with their able assistance.

8.It is not disputed that the petitioner had joined P.E.P.A. as a Deputy Director (BPS-18) on 01.01.1992, and was subsequently promoted as Director (BPS-19). The petitioner had filed writ petition No.2596/2015 before this Court praying for a direction that the post of Director General, P.E.P.A. be filled through promotion. Vide order dated 17.08.2015, the said writ petition was dismissed on the ground that the petitioner was a civil servant, and since the matter pertained to his promotion, and terms and conditions of service, the said petition was not maintainable. Thereafter, the petitioner, on 15.10.2015, filed an appeal before the Federal Services Tribunal, praying for the same relief as he had sought from this Court in writ petition No.2596/2015. During the pendency of the said appeal, the petitioner filed writ petition No.3637/2015 seeking a direction for his appointment as Director General, P.E.P.A. through promotion. The said writ petition was dismissed by this Court, vide judgment dated 02.02.2016. In the said judgment, it was observed that the petitioner had concealed the factum as to the

earlier writ petition. It was also observed that the post of Director General, P.E.P.A., reserved for promotion could be filled through initial appointment if no suitable person was available for promotion.

9.Vide judgment dated 30.05.2017, the petitioner’s appeal before Federal Services Tribunal, was allowed with the direction to the respondents therein to consider the petitioner for promotion as Director General, P.E.P.A. subject to the condition that he would complete the Senior Management Course as and when nominated by his department. Thereafter, the petitioner filed writ petition No.29/2018 before this Court seeking a direction to the respondents therein to include his name for consideration by the Central Selection Board for promotion to BPS-20. Vide order dated 11.01.2018, the said writ petition was disposed of with the direction to place the petitioner’s name before the Central Selection Board as and when he became eligible for consideration for promotion to BPS-20. This Court had also observed that the Senior Management Course being undertaken by the petitioner was to be concluded on

10.Now, in view of the said orders/judgments, it is made clear that the petitioner was not qualified to be promoted to a post in BPS-20 since he had not completed his Senior Management Course when the process for appointment through initial recruitment to the post of Director General, P.E.P.A. (BPS-20) was initiated by respondent No.2. The notification dated 09.01.2001 clearly provides the method of appointment to the post of Director General, P.E.P.A. to be filled through promotion. However, it is also provided in the said notification that if no suitable person is available for promotion, the post reserved for promotion shall be filled by initial appointment and failing that by transfer. Since the petitioner was not qualified to be promoted as Director General, P.E.P.A. (BPS-20) when respondent No.2 initiated the process for appointment against the said post through direct recruitment, he had no cause to challenge respondent No.5’s appointment on the said score. Respondent No.2 was under no obligation to wait until the

petitioner completed his Senior Management Course and was qualified to be promoted to a post in BPS-20 before filling up the post of Director General, P.E.P.A.

11.The record shows that on 03.12.2015, an advertisement was published by respondent No.2 inviting applications for appointment against various posts including the post of Director General (BPS-

20)in P.E.P.A. In the said advertisement, it was clearly mentioned that candidates applying for the said post had to have a domicile from the Province of Punjab. The petitioner as well as respondent No.5 applied for appointment against the said post.

12.Vide impugned letter dated 27.09.2016 issued by respondent No.2, respondent No.5 was recommended to be appointed as Director General (BPS-20) of P.E.P.A. It is not disputed that respondent No.5 was appointed against the said post.

13.The petitioner questions respondent No.5’s said appointment primarily on the ground that since she was domiciled in N.- W.F.P./K.P.K., she could not have been appointed as Director General, P.E.P.A., as a domicile from Punjab was an essential requirement for the candidates for the said post. The petitioner places reliance on letter dated 14.11.2009 from the Ministry of Environment/ Ministry of Climate Change, which shows that on 01.07.1998, respondent No.5 was appointed as Deputy Director, P.E.P.A., having a domicile from N.-W.F.P./K.P.K. In asserting that respondent No.5 having first been appointed in government service on the basis of her domicile from N.-W.F.P./K.P.K., could not have been appointed as Director General, P.E.P.A. on the basis of her domicile from Punjab, learned counsel for the petitioner places reliance on the following general instructions issued by respondent No.2:- “V.) The domicile claimed by a candidate and accepted by the Government at the time of first entry into Government service shall be treated as final throughout his/her service career and no subsequent change in his/her domicile will be recognized for the purpose of terms & conditions of his/her service including his/her allocation and liability to transfer. VI. The domicile once claimed and accepted by the Commission for the purpose of admission to any examination/selection

shall be treated final and, no change will be allowed at a subsequent examination/selection.”

14.It is not disputed that on 05.03.1984, a certificate was issued by the Magistrate First Class, Haripur, N.-W.F.P., certifying that respondent No.5 was domiciled in N.-W.F.P. After respondent No.5’s marriage, she, on 15.12.1990, obtained the domicile from the Province of Punjab. It is not disputed that respondent No.5's husband is a resident of District Attock in the Province of Punjab. True, respondent No.5’s domicile from N.-W.F.P./K.P.K. was cancelled by the Assistant Commissioner, Abbottabad, on 29.04.2016, but the vital question that needs to be determined is whether respondent No.5 obtained entry into government service by claiming her domicile from N.-W.F.P./K.P.K. at any material stage.

15.The documents brought on record by the respondents show that in response to an advertisement dated 20.01.1996, issued by the Ministry of Environment, Government of Pakistan, respondent No.5 applied for the post of Deputy Director (BPS-18) in the said Ministry, and that respondent No.5 was appointed to the said post against the Punjab quota, whereas Mr. Irfan Saeed was appointed against the N.-W.F.P./K.P.K. quota. As regards the above mentioned letter dated 14.11.2009 (on which the petitioner places heavy reliance), the Ministry of Climate Change, vide office memorandum dated 31.10.2016, had given a clarification to respondent No.2 that respondent No.5’s first appointment, on 01.07.1998, was made against Punjab quota. Furthermore, the Ministry of Climate Change/respondent No.4, in its written comments, had clarified that in the letter dated 14.11.2009, respondent No.5’s domicile was indicated to be from N.- W.F.P./K.P.K. as a result of inadvertence. I am also told that action has been taken against persons responsible for making incorrect entries regarding respondent No.5’s domicile in the said letter dated 14.11.2009.

16.Learned counsel for the petitioner could not come up with anything convincing to show that prior to respondent No.5’s

appointment as Director General, P.E.P.A. on the basis of her domicile from Punjab, she had gained appointment in government service on the basis of her domicile from N.-W.F.P./K.P.K. The documents on the record including the office memorandum dated 31.10.2016, from the Ministry of Climate Change, show that respondent No.5’s first entry into government service in 1998 was on the basis of her domicile from Punjab. The mere fact that her domicile from N.-W.F.P./K.P.K., issued prior to her marriage, had been cancelled in 2016 would not ipso facto make respondent No.5’s appointment as Director General, P.E.P.A. unlawful.

17.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 AN OPEN COURT ON 07.03.2018.

(JUDGE)

Qamar Khan*