Irfan Mahmood Khan VS FOP & others

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.37 of 2020 Irfan Mahmood Khan Versus Federation of Pakistan and others

Dates of Hearing: 16.03.2021 and 16.04.2021. Petitioner by: Mr. Umar Ijaz Gilani, Advocate, Respondents by: Barrister Iqbal Khan Nasar.

Mr. Arshid Mahmood Kiani, learned Deputy Attorney General.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner, Irfan Mahmood Khan, seeks a direction to the respondents to remove his name from the Exit Control List (“E.C.L.”).

2.The record shows that the petitioner is a graduate from the Islamabad Space and Technology University. While the petitioner was serving as Assistant Manager in the Pakistan Space and Upper Atmosphere Research Commission (“SUPARCO”), he was granted the Erasmus Mundus Scholarship for doing a two-year Master degree in Membrane Engineering in four semesters in different countries. The first semester was to be at the University of Montpellier in France. The petitioner proceeded abroad on 06.09.2018. The petitioner had been granted a French visa on his private passport which did not show him as a government servant.

3.On 22.03.2019, the petitioner’s name was placed on the E.C.L. on the recommendation of a security agency. The allegation against the petitioner was that while employed with SUPARCO, he deserted his duty without leave. He is also alleged to have obtained a French visa on his private passport, and proceeded to France without completing the departmental formalities / clearance required under the rules. The petitioner is also said to have been exposed to classified / sensitive information.

4.The petitioner’s stance is that while he was in France, he came to know through private sources that his name had been

placed on the E.C.L. Thereafter, he abandoned his studies abroad and returned to Pakistan on 11.07.2019.

5.On 23.08.2019, the petitioner submitted a representation to the SUPARCO seeking the removal of his name from the E.C.L. Having not received any response from the SUPARCO, the petitioner filed writ petition No.3168/2019 before this Court praying for a direction to the respondents therein to remove his name from the E.C.L. The said writ petition was disposed of vide order dated 23.09.2019 with the direction to the Ministry of Interior to decide the petitioner’s representation dated 23.08.2019 expeditiously. Since the said representation was not decided, the petitioner filed writ petition No.3385/2019 before this Court seeking the removal of his name from the E.C.L. During the pendency of the said petition, the petitioner was informed as to the reasons why his name had been placed on the E.C.L. These reasons were set out in the report submitted by the Ministry of Interior before this Court. Vide order dated 11.12.2019, the said petition was disposed of in terms of the statement made by the learned counsel for SUPARCO that the writ petition would be treated as the petitioner’s representation and decided after affording the petitioner an opportunity of a hearing. Since no decision was taken ever after a lapse of more than three weeks of the passing of the said order dated 11.12.2019, the petitioner filed the instant writ petition praying for a direction to the respondents to remove his name from the E.C.L.

6.As per the report submitted to this Court on behalf of the Ministry of Interior, the petitioner’s representation for the removal of his name from the E.C.L. had been forwarded by the said Ministry to the security agency on whose recommendations the petitioner’s name was placed on the E.C.L. The response of the security agency was that the petitioner’s name may be retained on the E.C.L. for further two years as he had been guilty of the following charges:- a. Getting French visa endorsed on private passport deceitfully;

b. Proceeding abroad without obtaining N.O.C. from competent authority;

c. Violated laid down procedures by traveling abroad without submission of surety bond, property pledge and academic documents.

7.The petitioner’s said representation was considered by the Cabinet Sub-Committee in its meeting dated 10.10.2019. The report submitted by the Ministry of Interior shows that on the recommendations of the Cabinet Sub-Committee, it was decided that the petitioner’s name be retained on the E.C.L.

8.On 09.01.2020, the petitioner filed the instant petition praying for a direction to the Ministry of Interior to remove his name from the E.C.L.

9.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the petitioner was not informed that his name was placed on the E.C.L.; that the petitioner had proceeded abroad on Erasmus Mundus Scholarship to France while he was an employee of SUPARCO; that after coming to know through informal sources that his name had been placed on the E.C.L., the petitioner voluntarily returned to Pakistan on 11.07.2019; that the petitioner had travelled abroad after obtaining all the relevant N.O.C.s and submitted all the required surety bonds; and that the respondents could not curtail the petitioner’s fundamental right to travel abroad enshrined in Article 15 of the Constitution. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

10.On the other hand, learned Deputy Attorney General made submissions in reiteration of the para-wise comments filed on behalf of the Ministry of Interior.

11.Learned counsel for respondent No.4 / SUPRACO submitted that respondent No.4 is a strategic organization working under the control of the National Command Authority. After going through the provisions of the National Command Authority Act, 2010, learned counsel for respondent No.4 submitted that under Rule 2(1)(c) of the Exit from Pakistan (Control) Rules, 2010, one of

the grounds on which a person’s name can be placed on the E.C.L. is “threatening national security”; that as per the E.C.L. policy circulated by the Strategic Plans Division, once an employee’s name is placed on the E.C.L., it is liable to remain there for two years in order “to ensure necessary debriefing of the affected employee’s HQ Security Division from counter intelligence point of view;” that the petitioner had been undertaking work of intrinsically sensitive nature and was handling highly classified information involving exposure to sensitive sites; that it is mandatory for the employees involved in such sensitive matters during the course of their employment to undergo necessary security / farewell briefing prior to proceeding abroad; that the petitioner had deceptively obtained a private / green passport while serving in SUPARCO without the prior approval of the competent authority; that vide letter dated 03.05.2018, the petitioner had been directed to submit the said passport to the protocol office; that the petitioner defied the said direction and proceeded abroad on his private passport; that respondent No.4 had requested the Federal Investigation Agency not to let the petitioner depart from Pakistan on any passport other than an official passport; that since the petitioner had failed to comply with the requisite procedure / formality before proceeding abroad, respondent No.4 recommended that his name be placed in the E.C.L.; that previously this Court had dismissed petitions filed by employees of Strategic Organizations seeking the removal of their names From the E.C.L.; and that under the E.C.L. policy, after a period of two years commencing from the date of the employee’s return to Pakistan, the petitioner’s case for the removal of his name from the E.C.L. can be considered. Learned counsel for respondent No.4 prayed for the writ petition to be dismissed.

12.I have heard the contentions of the learned counsel for the contesting parties as well as the learned Deputy 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 8 above and need not be recapitulated.

13.Respondent No.4’s office order dated 27.06.2018 shows that the Chairman of SUPARCO had accorded approval for the petitioner to pursue higher studies abroad leading to the award of Master degree in the field of Membrane Engineering under Erasmus Mundus Scholarship under the Human Resource Development Programme 2017-18 for a period of two years commencing from 01.09.2018. During his study period, the petitioner was entitled to receive 50% of his pay. Before proceeding abroad, the petitioner was required to submit several documents listed in paragraph 3 of the said office order dated 27.06.2018. On 24.07.2018, the petitioner was granted an N.O.C. for an official visit to France, Czech Republic, Spain, Portugal and the Netherlands.

14.Vide email dated 11.07.2018, the petitioner informed the French Embassy that he cannot use his ordinary passport for an official visit to France; and that it is mandatory for him to travel on his official passport for official visits. Vide email dated 12.07.2018, the French Embassy informed the petitioner that it was not possible to issue him a student visa on his official passport; and that he had no option but to apply for a student visa on his ordinary passport. Vide email dated 29.08.2018 from respondent No.4, the petitioner was requested to process his visa on his official green passport. The petitioner had also been granted permission to retain his academic documents until the completion of his studies abroad.

15.On 24.08.2018, an agreement was executed between the petitioner and respondent No.4 in which it was clearly provided that the petitioner shall resume his duties in respondent No.4 / organization after the completion of his studies abroad. The petitioner went abroad on a flight from Sialkot.

16.The vital question is whether the retention of the petitioner’s name on the E.C.L. is lawful. Respondent No.4 has brought on record an undated order passed by the Director General, Strategic Plans Division turning down the petitioner’s appeal for

the removal of his name from the E.C.L. Perusal of the said order shows that the petitioner’s act of obtaining a French visa on his private passport instead of a passport showing him as a government employee, and proceeding abroad without adhering to the laid down procedures has caused respondent No.4 to apprehend that the petitioner may, advertently or inadvertently, disclose sensitive information regarding strategic installations / plans of the country to agents of hostile intelligence agencies. This Court, in exercise of its Constitutional jurisdiction under Article 199 of the Constitution cannot sit in judgment over whether or not respondent No.4’s apprehensions are well founded. The petitioner, in his letters dated 23.08.2019 and 06.09.2019 has admitted that on 06.09.2018 he had exited the country to pursue his Master degree abroad without obtaining an N.O.C. from his respective organization.

17.In view of the above, the instant petition is dismissed with no order as to costs. Before parting with this judgment, it may be observed that the E.C.L. policy of the Strategic Plans Division provides inter alia that the cases for removal of names from the E.C.L. may not be recommended / forwarded as a matter of routine until completion of two years period commencing from the employee’s date of return to Pakistan. Since the petitioner returned to Pakistan on 11.07.2019, the two-year period ends on 11.07.2021. The respondents may consider the petitioner’s case for the removal of his name from the E.C.L., after 11.07.2021.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON 28/04/2021.

(JUDGE)

Ahtesham*