Tanveer Mehmood VS FOP etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.4358 of 2019 Tanveer Mehmood Versus Federation of Pakistan through Secretary Ministry of States & Frontier Regions and others

Date of Hearing: 15.12.2022 Petitioner by: Mr. Abid Mehmood, Advocate.

Respondents by: Syed Ahsan Raza Kazmi, learned Deputy Attorney-General.

Raja Waqas Khan, Senior Auditor, AGPR / respondent No.3.

Mr. Maqsood Ahmed, Section Officer (Admn.), Ministry of SAFRON.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Tanveer Mehmood seeks a direction to respondent No.1, Secretary, Ministry of States and Frontier Regions (“SAFRON”) to cancel the letter No.F.No.1(1)-Admin/2019, dated 10.10.2019 whereby SAFRON withdrew its earlier office order dated 30.05.2019 to regularize the petitioner’s service.

2.Brief facts of the case are that vide office order dated 01.11.2017 issued by SAFRON, the petitioner was appointed as Stenotypist (BPS-14) against a post which was reserved for appointment through deputation. It was further mentioned in the said office order dated 01.11.2017 that the petitioner’s appointment is “purely on contract basis for the period from 1 st November, 2017 to 26th March, 2018 or till the rejoining of the official namely Mr. Muhammad Yameen, Stenotypist who is on deputation whichever is earlier subject to provision of Medical Fitness Certificate. ” Next year vide letter dated 04.05.2018, the petitioner’s service contract was extended for a further period of one year with effect from 27.03.2018, the terms and conditions mentioned in the letter dated 04.05.2018 inter alia were that “his appointment shall be purely on contract basis for the period from 27th March, 2018 to 26th March, 2019 or till fresh recruitment against the vacant post whichever is earlier.” Thereafter, vide SAFRON’s office order dated 30.05.2019 which was stated to be issued in pursuance of this Court’s judgment dated 21.06.2018 passed in I.C.A.No.340/2017, the petitioner’s services were regularized

against the vacant post of Stenotypist (BPS-14). Eventually the said office order dated 30.05.2019 was withdrawn vide the impugned letter dated 10.10.2019 and the petitioner was given one year extension in service contract with effect from 27.03.2019 to 26.03.2020. On 23.10.2019 the petitioner filed a representation against the impugned letter dated 10.10.2019 whereupon according to him, no decision has been taken. Hence, the instant petition.

3.Learned counsel for the petitioner submitted that the decision to withdraw the petitioner’s regularization was taken without giving any reasons and without giving opportunity of a hearing to the petitioner; that the petitioner had applied against the post of Stenotypist in response to a public advertisement issued by SAFRON; that in the said advertisement, there was no mention that the appointment was to be made on contract basis; that the petitioner’s appointment was made after he remained successful in the competitive process; that the petitioner’s regularization fulfilled the criteria set by this Court in judgment dated 21.06.2018 passed in I.C.A.No.340/2017; that withdrawal of the petitioner’s regularization after it had taken effect is entirely against the principle of locus poenitentiae; that the impugned decision was passed in a discriminatory manner as several other employees were regularized; that the petitioner has not been paid the salary since March 2019; and that the impugned letter having been issued without fulfillment of legal procedure is not sustainable in law. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

4.On the other hand, learned Deputy Attorney-General submitted that on 10.01.2017, the SAFRON advertised five vacant posts of Stenotypist (BPS-14); that the detailed advertisement on the SAFRON’s website also mentioned that three posts were to be filled on regular basis while two posts were to be filled on deputation basis; that the said advertisement was issued after the Establishment Division issued a No Objection Certificate vide Office Memorandum (“O.M.”) dated 22.12.2016; that according to merit position after the competitive process the petitioner did not qualify for appointment against any of the regular posts; that due to temporary vacancy against one of the posts on deputation basis, the petitioner was adjusted on one year contract basis; that it was clearly mentioned in

the petitioner’s appointment letter that his appointment is purely contractual till rejoining of an employee who was on deputation; that the petitioner’s appointment against deputation vacancy was made on contract basis keeping in view the three years maximum deputation period envisaged under the Establishment Code; that the regularization of the petitioner vide office order dated 30.05.2019 did not fulfill the requisite criteria; that the Accountant General Pakistan Revenues (“AGPR”) raised objection on the petitioner’s regularization and required No objection Certificate of the Establishment Division and the Finance Division; that since the prescribed procedure for the petitioner’s regularization was not fulfilled, the said documents were not available on record; that since the petitioner’s regularization was made without the concurrence of the Establishment Division and the Finance Division, SAFRON decided to withdraw office order dated 30.05.2019, while the same was still under objection by AGPR; that since the petitioner’s regularization could not be finalized and he had put in service in the intervening period, SAFRON decided to extend his service contract for one year; that the said action was taken to facilitate payment of salary for the intervening period between issuance of office order dated 30.05.2019 and its withdrawal vide letter dated 10.10.2019; that SAFRON considered the petitioner’s representation but in absence of any supporting rule or regulation his service could not be regularized; that the petitioner’s service could not be regularized after expiry of service contract; and that the petitioner’s regularization having been made without adopting legal procedure has rightly been withdrawn. Learned Deputy-Attorney General prayed for the writ petition to be dismissed.

5.I have heard the contentions of learned counsel for the petitioner as well as learned Deputy-Attorney General and have perused the record with their assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraph 2 above and need not be recapitulated.

6.The office order dated 01.11.2017 whereby the petitioner was appointed clearly mentions his appointment to be contractual for one year or till rejoining of an employee who was on deputation. The petitioner submitted joining in acceptance of the terms and conditions of the said office order dated 01.11.2017. For him there is no returning

from that to say he was entitled for appointment on regular basis and not on contractual basis.

7.The petitioner’s claim for regularization amounts to his appointment as civil servant and such an appointment cannot be made without fulfillment of procedure contained under the Civil Servants Act, 1973 (“the 1973 Act”) as well as the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (“the 1973 Rules”). Moreover, appointment of a civil servant necessitates existence of a vacancy which is prescribed to be filled through initial recruitment under the service rules of the department. Whereas in the present case, the petitioner’s contractual appointment was made against an ad-hoc vacancy which was available due to exigency of deputation.

8.Section 25 of the 1973 Act requires that appointment to civil service has to be made in accordance with the procedure prescribed in the 1973 Rules which have been made under Section 25 of the 1973 Act. Now under Rule 11 of the 1973 Rules, appointment to posts in BPS 1 to 15 are required to be made on the recommendations of Departmental Selection Committee. The office order dated 30.05.2019 whereby the petitioner’s appointment as regular civil servant was made was not issued on the recommendations of the Departmental Selection Committee. It was instead mentioned to be issued in compliance with judgment dated 21.06.2018 passed by this Court in I.C.A.No.340/2017. The petitioner was not a party in the said appeal decided by this Court and no directions were issued to SAFRON in the said judgment for regularization of its contractual employees. Additionally, the petitioner having been appointed later than 01.01.2017 did not fall within the purview of the regularization policy forming subject matter of the said I.C.A.No.340/2017.

9.Additionally since the AGPR raised objections on the petitioner’s regularization vide office order dated 30.05.2019 and since he was not paid salary pursuant to the said office order hence the decisive step of the said office order dated 30.05.2019 having become effective, cannot be said to have been taken. Therefore, principle of locus poenitentiae is not attracted in the present case. Stance taken by SAFRON in its report and parawise comments filed before this Court was that the said office order dated 30.05.2019 was issued inadvertently, erroneously and under a misconception. The said error

was rectified through the office order dated 10.10.2019 after an objection was raised by the AGPR. Now the law is clear on the point that if a benefit is extended beyond the scope of law and policy the same cannot be claimed in perpetuity. Recently in the case of Syed Azam Shah Vs. Federation of Pakistan (2022 SCMR 201), the Hon’ble Supreme Court, while laying down the principles governing the application of the principle of locus poenitentiae, held as follows:- “13. The learned counsel made much emphasis that the monetization allowance was continued to be paid to the appellant at least for four years therefore the same could not be withdrawn and the action of the respondents was contrary to the doctrine of locus poenitentiae but it was not denied that the Monetization Policy was applicable for those officers, who were entitled to use official vehicle before introduction of the Monetization Policy. The doctrine of locus poenitentiae means an opportunity to repent. An opportunity for the parties to an illegal contract to reconsider their positions, decide not to carry out the illegal act, and so save the contract from being void. Ref:www.oxfordreference.com/view/10.1093/oi/authority. 2 0110803100111991. According to the Black's Law Dictionary (Ninth Edition) at page 1025, "Locus poenitentiae" [Latin- "place of repentance"] means: 1. A point at which it is not too late for one to change one's legal position; the possibility of withdrawing from a contemplated course of action, esp. a wrong, before being committed to it. The requirement of an overt act before conspirators can be prosecuted and punished exists to provide a locus poenitentiae; an opportunity for the conspirators to reconsider, terminate the agreement, and thereby avoid punishment. People v. Zamora, 557 P.2d 75, 82 n.8 (Cal. 1976). 2. The opportunity to withdraw from a negotiation before finally concluding the contract. This Latin phrase is connected with contractual law which expresses an opportunity to withdraw from a contract or obligation before it is completed but in our comprehension, there is no hard and fast rule that if some benefit was wrongly extended due to some misunderstanding, error, misconception of law or without sanction of competent authority, that act should be treated so sacred and sacrosanct which could not be withdrawn to retrace or redo the wrong decision or action under the guise of locus poenitentiae principle. A wrong benefit extended beyond the scope of law and rules/policy cannot be claimed in perpetuity or eternity hence the applicability of this doctrine depends on the circumstances of each and every case and cannot apply universally or randomly without adverting to the merits of each case in its peculiar circumstances. In the case of Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207), this Court held that the order under which the payment was made had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. In the case of (Contempt proceedings against Chief Secretary, Sindh and others) (2013 SCMR 1752), it was held that if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The Court also referred to the cases of Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others (2010 PLC (C.S) 924) and Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207) wherein it

was held that principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law which was violative of the provisions of the Constitution.” (Emphasis Added)

10.The impugned office order dated 10.10.2019 with regard to withdrawal of the petitioner’s regularization was not violative of law, applicable service rules or policy. And since the same was claimed to have been issued inadvertently, no vested right in favour of the petitioner can be said to have accrued. In the case of Federation of Pakistan Vs. Muhammad Azam Chattha (2013 SCMR 120), the Hon’ble Supreme Court had upheld withdrawal of the respondent’s regularization as government servant, for the same having been issued inadvertently and not being in accordance with law. In paragraph 21 of the said report, the Hon’ble Supreme Court had held as follows:- “21. It is to be noted that at the time when respondent was appointed as Presiding Officer of the Banking Tribunal, enabling provision was the notification dated 18-8-1993 and section 4 of the Ordinance, 1984. As far as section 4 is concerned, it deals with the establishment of Banking Tribunals and as per its subsection (3), the Banking Tribunal shall consist of a person who is, or has been, or is qualified for appointment as, a Judge of High Court or a District Judge or an Additional District Judge, to be appointed by the Federal Government. In this provision no terms and conditions of service have been prescribed, therefore, for such reasons, in the year 1993 the notification referred to hereinabove was issued in pursuance whereof initially contract period was prescribed for three years, which was extendable for another period not exceeding three years. Thus, it is held that the notification dated 24-11-2009 of appointment of the respondent issued under Ordinance, 2009 was illegal, unwarranted and void. As it has been pointed out hereinabove, the respondent had availed period of one year to be the Presiding Officer of Banking Tribunal contrary to the law, for which legally he was not entitled to hold the post. Similarly, the question is as to how a contract employee can be inducted into service of Pakistan on regular basis in pursuance of the provisions of Act, 2010? Without prejudice to the case of any of the parties, at the best, the respondent could have succeeded subject to discussion made hereinabove, to be a permanent Presiding Officer of the Banking Tribunal, which of course was not possible in view of the provision of section 4 of the Ordinance, 1984 read with notification dated 18-8-1993. It is also to be noted that the Act, 2010 also deals with the persons who were in employment of the corporation etc. or in government service. We have examined the case of respondent and have came to the conclusion that his case is not covered under either of the two expressions, therefore, he was not entitled to be regularized as a government servant in BPS-22 and for such reason we agree with the learned Deputy Attorney-General that the notification dated 27-4-2011, reproduced hereinabove, was issued inadvertently. Therefore, under the circumstances, the Law Ministry, on having realized that the issuance of such notification was contrary to law, had rightly withdrawn the same on 28-5-2011.” (Emphasis Added)

11.In order that a writ of mandamus may be issued to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. A writ of mandamus could not be issued in favour of the employees directing the government to make them permanent even where the employees cannot show that they have an enforceable legal right to be regularized or that the State has a legal duty to make them permanent. The Hon’ble Supreme Court in paragraph 10 of the judgment in case of Owais Shams Durrani and others Vs. Vice Chancellor, Bacha Khan University, Charsadda (2020 SCMR 1041) held as follows:- “It is trite that where a citizen seeks relief in constitutional jurisdiction he must point to a right statutory or constitutional which vest in him and has been denied in violation of the law. The petitioners have failed to point out any right to seek regularization on the basis of any constitutional guarantee or statutory law or instrument which may have been denied to them. Their terms and conditions of service were governed by their appointment notifications.”

12.In view of the above, the impugned letter dated 10.10.2019 does not warrant interference, therefore the instant writ petition, being without merit is, dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN OPEN COURT ON 30.12.2022.

JUDGE

SULTAN*