Dr Saif ur Rehman VS Pakistan etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.3614 of 2024 Dr. Saif Ur Rehman Versus Pakistan and others S. No. of order Date of order / Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary.

02.02.12.2024 M/s Afnan Karim Kundi and Muhammad, Advocates for the petitioner.

Mr. Abdul Khaliq Thind, learned Deputy Attorney- General.

Mr. Azmat Bashir Tarrar, learned Assistant Attorney-General.

Mr. M.B. Sanghi, DS(H-I) and Omer Farooq Ran, Director (Legal), Ministry of NHSR&C. Mr. Muhammad Abou Bakar Khan, Superintendent, PIMS / respondents No.3&5.

Through the instant writ petition the petitioner, Dr. Saif Ur Rehman, impugns the initiation of disciplinary proceedings against him through inquiry order dated 16.05.2024 signed by the Additional Secretary, Ministry of National Health, Services, Regulations and Coordination (“Ministry of NHSR&C”). The primary ground on which the said inquiry order has been challenged is that the said inquiry order has not been signed by the “departmental authority,” which according to the learned counsel for the petitioner is the Secretary, Ministry of NHSR&C.

2.In order to demonstrate that the instant petition is maintainable, the learned counsel for the petitioner drew the attention of the Court to Section 4 of the Service Tribunal Act, 1973 and submitted that the petitioner could only assail before the Federal Service Tribunal an order passed by the “departmental authority” and none other; that the Explanation to the said section provides that the “departmental authority” means

any authority which is competent to make an order in respect of any of the terms and conditions of civil servants; that Rule 2(1)(c) of the Civil Servants (Efficiency and Discipline) Rules, 2020 defines “authority” as the appointing authority; that the petitioner’s appointing authority is the Secretary, Ministry of NHSR&C in terms of Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (“APT Rules”), and not the Additional Secretary; that in terms of Rule 2(xviii) of the Rules of Business, 1973, “Secretary” would mean the Additional Secretary only where there is no Secretary available; that in the judgments reported as 2014 PLC (C.S.) 604, 2016 PLC (C.S.) 1184 and 2017 PLC (C.S.) 1128, it has been held inter alia that a writ petition against an order not passed by a “departmental authority” is maintainable; and that in the presence of the Secretary, the Additional Secretary could not have issued the inquiry order; and that the Secretary could not delegate his powers in issuing inquiry order to the Additional Secretary.

3.On 25.11.2024, this Court issued notice to the respondents. Furthermore, learned Additional Attorney-General was requested to assist the Court on the next date of hearing.

4.Paragraph 5(1) of the Secretariat Instructions empowers the Secretary to determine the maximum extent of delegation of powers to officers serving under him and issue clear standing orders laying down these powers and also the manner of disposal of cases in the Division. The Secretariat Instructions are issued in exercise of the powers conferred by Rule 5(15)

of the Rules of Business, 1973. In exercise of the power conferred by the said Secretariat Instructions, office order dated 24.08.2022 was issued by the Ministry of National Health Services Regulations & Coordination (“Ministry of NHSR&C”) whereby certain administrative powers for the disposal of official business, including the power of the Secretary on the subject of “discipline / conduct” for officers in BS- 17 to BS-18 have been delegated to the Additional Secretary whereas the power with respect to officers in BS-19 and above are reserved with the Secretary. The aforementioned documents were brought by the learned Assistant Attorney- General.

5.Learned counsel for the petitioner submitted that when the Secretary is available, his powers cannot be delegated to the Additional Secretary.

6.As far the argument of the learned counsel for the petitioner that the Secretary in terms of Rule 2(a) read with Rule 6 of the APT Rules acts on behalf of the President and therefore he could not delegate his powers any further, there is no basis for such submission in the Civil Servants Act and/or the rules made thereunder. In terms of Rule 6, the appointing authority of an officer in BS-17 to BS-19 is the Secretary of the Ministry or Division concerned. There is no prohibition on the Secretary to delegate his powers in the manner permitted by the Secretariat Instructions, which are issued under the Rules of Business, 1973. If the petitioner considers the office order dated 24.08.2022 to be an impediment before him, or if he considers it adversely impacting on his terms

and conditions of service, he can assail the same before the Service Tribunal in view of the law laid down by the Hon'ble Supreme Court in the case of I.A. Sherwani (1991 SCMR 1041).

7.As regards the petitioner’s reliance on the judgment reported as 2016 PLC (C.S.) 1148, the same has been set-aside by the Hon'ble Supreme Court vide order dated 03.10.2016 passed in civil appeal No.15-Q/2016.

8.On account of the bar contained in Article 212 of the Constitution, I hold that the instant petition is not maintainable and consequently, the same is dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*