Jehan Roz vs Auditor General etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

WP. No. 3949-P/2014 with COC.65-P/2015. Date of hearing...26.03.2015

Jehan Roz Vs Auditor General of Pakistan & others Petitioner(s) by Mr. Asad Jan, Advocate.

Respondent(s) by Syed Qaiser Ali Shah, AAG & Mr. Amjad Ali, Advocate.

ABDUL LATIF KHAN, J:- petitioner, has invoked the constitutional jurisdiction of this Court under Article 199 of the constitution of the Islamic Republic of Pakistan, 1973, thereby seeking the following relief;

“that on acceptance of the

instant writ petition an

appropriate writ may be issued

declaring the acts and

omissions on the part of

respondent No.4 in not allowing

petitioner posting as notified by respondent No.1 and also not

allowing petitioner to perform

his duties as deputy Director

Finance KPK Highways

Authority as per notification

dated 14.07.2014 be declared as

illegal, without lawful authority, void an initio and all others

benefits allowed under the law

but withheld due to illegal act of respondent No.4 may also be

allowed. The petitioner may

very kindly be allowed for his

duty on the above mentioned

post in the interest of justice or any other order deemed proper

and in favour of petitioner may

also be passed”

2.Arguments heard and record perused.

3.The record reveals that respondent No.4, on 06.01.2014 issued notification to repatriate Mr. Azam Khan Audit Officer (BPS-18) working as Deputy Director (Finance) Pakhtunkhwa Highways Authority on deputation to his parent department i.e.

Khyber Pakhtunkhwa with the request to Auditor

General of Pakistan, Audit House Constitution Avenue G-5, Islamabad to provide a suitable Substitute of the said Audit Office for his posting as Deputy Director (Finance) on deputation in the office Managing Director Pakhtunkhwa, Peshawar.

In response of which, on 17.03.2014 willing officers were requested to sent their bio-data through proper channel to the Auditor General of Pakistan, Islamabad. It is submitted on behalf of petitioner that on 25.03.2014 he gave option for posting as Deputy Director Finance in Khyber Pakhtunkhwa Highways Authority, Peshawar on deputation basis which was allowed vide notification dated 14.07.2014 by dent of which his services were placed at the disposal of Government of Khyber Pakhtunkhwa for further posting as Deputy Director (Finance) Highway Authority Communication & Works Department, Peshawar and was relieved on 16.07.2014 by his parent department. On 27.10.2014 Director (Admn) Office of the Auditor General of Pakistan, Audit House, Constitution Avenue, Islamabad requested to the Secretary Communication & Works Department Govt. of KPK,

Peshawar (respondent No.4) that petitioner be allowed to join as Deputy Director Finance and charge report to this regard be sent to office, vide letter dated 25.07.2014, however the notification issued in favour of petitioner, was withdrawn/cancelled as the post of Deputy Director (Finance) has already been filled on deputation basis.

4.Private respondent No.6 (Ali Khitab) was posted on deputation basis against the post of Finance Manager in office of the Project Director Project Management Unit (PMU) C & W, Peshawar became vacant due to repatriation of Muhammad Nawaz Account Officer, who was deputed as such vide Office Order dated 28.03.2014. Consequent upon which, he took charge of the post on 04.04.2014 and worked there for some time and thereafter repatriated to his parent department.

5.The petitioner claims to be posted and be allowed to perform duty on deputation in terms of notification dated 14.07.2014 and seeks the annulment of orders of respondent No.4 not to allow him to work as such. It is submitted that being

eligible, fit and qualifying person, was recommended by respondent No.1 and thereafter respondent No.4 was not empowered to refuse posting or make hurdle in way of the petitioner in performance of his duties.

6.The comments filed by the respondents contained the objection that this Court has no jurisdiction in terms of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 besides the fact that the sole grievance of the petitioner regarding his deputation due to non-compliance of the notification in this regard is misconceived, as it is settled law that deputationist cannot be allowed to complete the deputation period and instead it is prerogative and domain of the Borrowing or Lending Departments to repatriate the services of a deputationist as and when required.

7.It is pertinent to mention that the petitioner has no vested right to claim deputation or it is not necessary in all eventuality that he should complete the deputation period. Borrowing and Lending Departments have to consider their need with regard to repatriation of services of

deputationist. The department cannot be compelled by the deputationist to retain the post on deputation for the entire period of deputation or for indefinite period with his own whims and wishes.

8.No vested right accrues to the

deputationist to continue with the post of deputation and instead it is the discretion of the competent authority, keeping in view the exigency of service.

Moreover, the deputationist cannot be treated as “aggrieved person” provided that he was placed on same grade and status in Borrowing cadre, which he avails before his status of deputationist as none of his right infringed or involved in the matter and constitutional jurisdiction conferred upon this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be involved in such matter. The petitioner could not question the order of repatriation as no right vest in deputationist to serve in Borrowing Department as no valuable right whatsoever has been accrued in favour of the deputationist. Deputation can be termed as administrative arrangement between Borrowing and Lending Departments to hire the services of an

employee in public interest. Civil Servant had not been deprived of his legal right by repatriation and as such the order of repatriation is not amenable to the writ jurisdiction of this Court. “Dr. Shafi-ur- Rehman Afridi Vs CDA, Islamabad through Chairman & others 2010 SCMR 378” can be referred to this behalf.

For the aforesaid reasons, we are of the view that petitioner has got no bona-fide cause of action and the petition alongwith COC, being bereft of substance, stands dismissed.

Announced.

Dt. 26.03 .2015.

CHIEF JUSTICE

JUDGE

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