Ghulam Yousaf Vs Govt of KP etc

I

JUDGMENT SHEET

PESHAWARHIGH COART

ABBOTTABAD BENCH

(Judicial Department)

W.P. No. 1050-N2024

Ghulam Yousaf (Petitioner/s)

Versus

Government of KPK & others.

(Respondents)

Present: Mr, Muhammad Asjid PemozAbhassi, Atlvocate, for the petitioner.

Respondents arc not represented being o motion case,

Date of hearing: 09.10.2024

JLTDGMENT

MUHAMMAD IJAZ KHAN J .- 'fhrough the instant writ petition, the petitioner has prayed as under:- "On acceptance of instant wril petition, the impugned Notification No.SOE/LV/4- I 16/Posting-Tran.sfer/2024/9272 dated l6h Sep, 2024 may graciously be declared 03 as illegal, unlawful, arbitrary, peryerse, against the norms of natural juslice, dgainst the fun.damental rights of th.e petilioner, voitl ab-initio, having no e.ffects ttpon the rights oJ'the petitbner and the impugned notification nay graciously be sel-uside any other relief with this (Ir.B llo!'bt. Mi Jntti.. Mul[n,n.d tj.2 Khrn &MLJu i.eI!nhrmnrd FrhedD Wnti

Honourable Court according to the fact of cases may kindly be granted in favour of the petitioner. "

2 Precisely, the facts leading to the filing of instant writ petition are that the petitioner was appointed as against the post of Junior Clerk (BPS-5) in the office of Deputy Commissioner on 30.09.1993 and later on he was promoted as Senior Clerk (BpS-7) on 17.07.1996 and was further promoted as Assistant (BPS-14) on 22.12.2003 and then he was given additional charge of PSO to Zillah Nazim, Battagram and then he was recommended for promotion as pSO to Zillah Nazim, however, after promulgation of Local Govemment Act 2013, the post of PSO was abolished in the Province and petitioner was declared as surplus and since then he is working as Assistant Director in LG&RD Department Battgram and waiting for absorption against the post of "Progress Officer" and in this regard he time and again approached to the r relevant authorities, however, his request was not acceded to and on one of the application of petitioner, an advice/opinion was sought from Establishment Depaxtment, who gave its advice to adjust the petitioner but inspite of clear direction from Establishment Department, the relevant authorities did not adjust the petitioner, therefore, he feeling himself (D.A rlod'bl. Mr. J!rli.. Muh.nr.d l.irz Kn.n & lui Jurli.. Mtrh.n.r.d Frh..n Wrli

-J-

aggrieved had filed a WP No. 138912020, and this Court vide order dated 13.03.2024 converted the same into a departmental representation and sent the same to respondent No. 2 with the direction to pass a speaking order qua the status of the petitioner within a period of sixty (60) days, however, now the respondents have transferred./repatriated the petitioner from his present post i.e. Assistant Director Senior BPS-I8 to the office of Deputy Commissioner Battagram vide impugned order dated 16.09.2024, which order has now been challenged by the petitioner through the instant wrir petition.

3.Arguments of leamed counsel for the petitioner were heard in considerable detail and the record perused with his able assistance.

4.At the very outset, learned counsel for the petitioner was confronted that since he was on deputation to the Local Govemment & Rural v Development Department as his original department is District Local Government, therefore, whether he has any right to retain his post at the Local Govemment & Rural Development Department and whether petitioner being a deputationists has a vested right to claim his absorption or to retain a post in the borrowing department, his reply was that since the post of pSO to {D.B Hor'bL Mr, Ju!ri.. lll!h.nn..l lj.z Kh.n & Mr Jrriic. Mnltrmmrd F.h..m Wiri

the District Nazim has been abolished, therefore, he was lransferred and posted in the Local Government & Rural Development Department and thus petitioner has to be treated as an ernployee of l,ocal Govcmment & Rural Development Department, however, the record would show that initially he was appointed as a junror clerk (BPS-4) on 30.09.1993 by the Deputy Commissioner Battagram then he was promoted as senior clerk (BPS-7) on 17.07.1996 and lastly he was promoted as assistant (BPS-11) on22.12.2003 which post was later on upgraded to (BPS-14) on 01.07.2001 theretbre, f<lr all legal and factual aspects of the case the petitioner is the employee of District Government and his appointing authority is Deputy Commissioner, Baftagram and till date no order ofhis absorption in the l-ocal Government & Rural Development Department has passed by the competent authority therefore, keeping in view the status of the petitioner being a 2 deputationists the desire writ could not be issued in his favonr. In a caser the Honourable Apex Court has held in para No.l 0 that deputation *,ithin a goverrrment departrnent holds a significant role, necessitating recruitment under exceptional circumstances when GIIArr-SI-lAIvl DAS Versus GOVERT'-MllNT OF KIIYBER PAKI{'l-IINKHWA through Chief Secrctary, Fakistan Forest Institute, Peshau,ar. (2024 SCMR 188)

(l).8 IIotr bl.ltr. Juili.. Mui,omid Ij.z Khrn & Mr, Jusli..Mnhrrmrd F,h..n w.li

there is a lack of expertise within the department in the relevant subject or field. In such situations, the prescribed procedure outlined in Rule 20-A of the Civil Servants (Appointment, Promotion, and Transfer) Rules, 1973, must be adhered to. However.

It ts lmrreratlve to em n hasize that deputation should not entail an indefinite period of service but should conform to the soecified dura tion for the deputation.

The normal period of deputation is three years and the concerned officer has to report back after completion of his three years period unless it has been extended to further two years and the maximum period is five years in terms of Serial No.27 (iv) of ESTA Code Volume-I (Civil Establishment Code), lvhereby both the borrou,ing and lending organization should ensure immediate repatriation of the deputationist. Furthermore, the period of deputation has to be defined specifically and after expiry of the said period, the officer sl'ould I automatically be relieved from his office duties, unless his period has been extended. The other pre- conditions of deputation refbrred in Chapter III (1'ransfer. Posting, and Deputation) of the ESTA Code, are as under:

(i)Where a post proposed ro be filled is (D.B llon'bl. \lr. JBtic. It trh{mm.d Ijrz Ktrs & Mr. Jurli.. lllrhrmmd Frh.rn wili

reserved under the rules for departmental promotion, appointment on deputation may be made only if the department certifies that no eligible person is available for promotion or the eligible person is tbund unfit for promotion by the appropriate DPC/Selection Board. In such cases, deputation may be approved till such time a suitable person becomes available for promotion.

(ii)In case of posts reserved for initial recruitment, appointment on deputation may be made only as temporary arrangement, pending joining of the nominee of the F-PSC, and subject to the condition that such appointment shall be made only after a requisition has been placed with the FPSC.

(iii)In cases where a post is tenable through appointment by deputation, the normal period of deputation should be three years and no extension beyond three years may be allowed without prior approval of the Establishment Division.

(iv)No officer should be sent on deputation unless he has completed three years' service in his parent department after return from an earlier deputation."

t Similarly, in a case2 Islamabad High Court has observed that deputation is an administrative agreement between borrowing and lending authorities for utilizing the services of an employee in the public interest and exigency of services against a particular 2 Mst. Robia Ayub Versus Federalion oiPakistan through Secretary, Ministry ofEducalion. (2013 PLC (CS) 915) (D.a llor'hl. Mi Jrsti..ll"[!aE.d li.z Kh.! & nlr. J$tic. Mut.Dmrd F.h..nW.ti

post against rvhich the deS@

qeh qJ Bqryrqrenl absorption. In a casei the Ilonourable Apex Court has held that a deputationist could not be treated as an aggrieved person provided he had been placed in the sarne grade and status in borrowing cadre which he was enjoying before his status of deputationist. It may not be out of place to mention here that a deputationist has no vested right to rernain on a post as deputationist forever or 1or a supu-latcd-uerua-ar msslielea i!-lhe-aali{aaie!-a[d can be rer;atriated at anv time. In this regard reference can be made the case titled Muharnmad Rafique v. Secretary. Wafaqi Mohtasib's Secretariat, Islamabad and 2 others 1998 SCMR 2631 . ln a casel the Apex Court has held that a dgpUt4iglt$ dqeq ngl have any vested right to remain on the post as ationist forever or for a sti ulated eriod 1.re couid be ordered to be repalriated to the parent r De artment at an time vrithout assi

This issue rvns raised in the case of Dr. Shafi-ur- Rel-rman Afridi v. C.D.A., Islamabad through ln an reason

Chairman and others (2010 SCMR 378) w'herein this 3 DR. SftAFl-tiR-l{EllMAN AFRIDI Versus C.D.A Islamabad through Chairman and ottrers. (2010 SCNII{ 378).

S. MASOOD ABBAS RIZVI Vcrsus ITEDIIRA'I'ION OIr PAKISl'AN through Secrctary Bstabiir;irrr ent and othcrs. (2014 SCN{R 799). (D,B Hon'bl. I|Ii. Ju(i.. N:uh!mi,d Ijrz (trin .l Mr, Junicc \ti,har. rrd l-rh..n w,li

Court has held that a deputationist does not have vcsted right to continue for the stipulated period. We are of the considered view that petitioner being deputationist has no vested right to remain on a post as deputationist or otheru,ise and can be ordered to be repatriated and/ or relieved a1 any time. Moreover, in terms of section 2(b)(i) of Civil Servants Act, 1973 such person even looses his status as "Civil Servant" during the period he is on deputation. The parent Department of the petitioner is no1 obliged in law, to assign reasons for his repatriation. 'Ihe learned Fligh Court while dismissing the Petition of the petitioner has rightly held that the parent Departmenl of the petitioner was competent to issue the Notification dated 22nd, luly, 2013, for which the Department was not required to assign reasons as the petitioner was holding regular/substantive post with the Department of Auditor- General of Pakistan.

5 During the course of arguments learned

counsel for the petitioner was confronted that what of his legal right has denied to him by the respondents howcvcr, except humanitarian ground he was unable to makc a r ref'erence to any of the LadRules,4ftcgulation or any commitmcnt by the bonowing or lending department. It is relevant to mention here that in a writ jurisdiction what the writ petitioner is required is to fir'st establish that he has suffered a "legal grievance" or he has wrongly been deprived or he has wrongly been refused {D.B tlon'bL nli Jurli(. Mnh.mm{d ljrz (hrn & Mr Jurtic.Mohrmm.d Frh..n !l.li

something for which he was otherwise legally entitled to, and it is only after the establishment of such a right, followed by its violation or refusal by a public functionaries, and it would be thereafter that he/they rnay be held as entitled for the issuance of the desired writ. In a cases the Hon'ble Apex Court has held that extraordinary jurisdiction of High Court could only be invoked by a person whose legal right has becn denied.

This view was also followed in thc case6 in which it was held that petitioner has to show that he had a personal interest in performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefil or advantage.

6 In light of the above discussion, the instant writ petition being bereft of any merits is hereby dismissed, in limhrc.

Announced

09.10.2024 JUDGE

UDGE

5 I'azl-e-Llaq, Accountant-General, West pakistan vs. The State,'. pLD 1960 Supreme Court (Pak.) 295.

6 Mian lrazal I)in vs. Lahore Improvemcnt Trust, Lahorc and anothcr,, PI,t) t969 Supreme Courl223

(D.B rlon bl. Mr, Jultic.Muhrnn.d lj.z (h,n & Ili Jtrsri.. M![.mnrd t'.h..m Wrti