2012 PLP (C (PLC(CS))

SHAUKAT AZIZ SIDDIQUI, J.

Petitioner invoked the constitutional jurisdiction of this Court by filing instant writ petition, with the following prayer: "In view of the above facts and legal position, it is respectfully prayed that this Hon'ble Court may graciously be pleased to: (i) Accept instant writ petition with costs; (ii) Declare the appointment of respondent No.4 made vide impugned Notification dated 11-1-2012 as unlawful, void, unjust, arbitrary, without lawful authority; (iii) Set aside the impugned notification dated 11-1-2012 to meet the ends of justice; (iv) Direct official respondents to immediately repatriate respondent No.4 to his parent-Department i.e. the CDA; (v) Retain the petitioner in place of respondent No.4 on his original position as Executive Engineer (BS-18) on current charges basis at Bahawalpur; (vi) Restrain the official respondents from taking any adverse action against the petitioner during the pendency of the instant writ petition. (vii) Grant any other relief to the petitioner under circumstances as considered appropriate."

2. Brief facts of the case surfaced from the pleadings are that petitioner was serving as Assistant Executive Engineer (BS-17) in Central Civil Division, Pak PWD Bahawalpur, who vide office order dated 23-11-2011 was allowed to hold the charge of vacant post of Executive Engineer BS-18 for a period of three months or till the posting of Executive Engineer on regular basis, whichever is earlier. But all of sudden, he was transferred to DG's Office, Pak PWD, Islamabad and respondent No. 4, whose services were hired from CDA on deputation posted in his place. Being aggrieved, petitioner filed representation to respondent No.3 contending therein that Bahawalpur was the nearest station to his home town Lodhran and he was at verge of his retirement, but with no response. Petitioner, filed writ petition in the Hon'ble Lahore High Court, Bahawalpur Bench, which was disposed of with the direction to consider and dispose of the representation of the petitioner expeditiously, within a period of 30-dyas. Respondent has resumed the charge at Bahawalpur without formally relinquishment of charge by petitioner. Hence petitioner filed instant writ petition to assail the appointment of private respondent on deputation vide impugned notification dated 11-1-2012.

3. Learned counsel for petitioner submits that under the prescribed rules, respondent could not be taken on deputation, as he was not employee of Federal Government but an employee of autonomous body i.e. CDA, therefore, impugned order is unlawful, illegal and arbitrary and is liable to be set aside. Learned counsel further submits that respondent was not holder of permanent appointment of Executive Engineer on regular basis, as such petitioner cannot be removed from performing duties as Executive Engineer on current charge basis, as per terms and condition of his appointment. Petitioner has not been dealt with in accordance with law, which is violative of Article 4 of the Constitution. Petitioner at the verge of his retirement, could not have been transferred legally from Bahawalpur which is nearest to his home town Lodhran. As per prescribed rules of Pak PWD notified on 11-10-1984, the appointment on transfer has to be made from amongst the persons holding appointment under Federal Government, on a regular basis in the same basic pay scale in which the post to be filled in; provided the person concerned possesses the qualifications/experience, prescribed for initial appointment to the post concerned. Learned counsel further adds that impugned appointment of respondent No.4 on deputation basis is in violation of rules of respondent department, which is illegal and void ab initio as held by Hon'ble Lahore High Court in case reported as 1996 PLC (C.S.) 447.

4. On the other hand, Learned Standing Counsel assisted by learned counsel for respondent No.4 vehemently argued that as the matter relates to terms and condition of service, therefore, Article 212 of the Constitution bars the jurisdiction of this Court and instant petition is not maintainable. Learned counsel further submits that constitutional jurisdiction of this Court can only be invoked, when no other adequate remedy is available but in the present case, alternate remedy is available to petitioner and he can approach the Service Tribunal. He adds that on the same subject, petitioner earlier filed Writ Petition No. 202 of 2012 before Lahore High Court, Bahawalpur Bench, Bahawalpur and the same was disposed off vide order dated 16-1-2012, due to bar of Article 212 of the Constitution and instant petition also hit on the principle of Res-judicata. Learned counsel for contesting respondent further contended that his client is BSc Engineering (Civil), whereas petitioner is diploma holder, who under no circumstance can be equated with respondent No.4, whose services have been obtained on deputation by the respondents Nos.1 to

3. By concluding his arguments, learned counsel prayed for the dismissal of writ petition.

5. I have heard the learned counsel and perused the documents annexed with the pleadings. In order to understand the issue, it seems appropriate to provide admitted facts, which are as under:-- * Respondent No. 4 is permanent employee of CDA, who was serving as Deputy Director (BS-18) on current charge basis and substantive holder of BS- 17 post. * Vide office order dated 12th May, 2011, respondent No.4 was relieved from CDA for a period of 03 years as his services were put at the disposal of Ministry of Industries and production for posting in Utility Store Corporations. Came back to CDA in the month of December, 2011 as he was relieved from Utility Store Corporations vide office order dated 14h of December, 2011. * Respondent No. 4 remained on deputation in Utility Stores Corporation of Pakistan and acted as Zonal Manager, Sargodha, and prior to fresh deputation came back to CDA. * Incidentally, respondent No. 4 hails from same area, from where Hon'ble Federal Minister of Housing and Works belong. * Vide notification dated 11-1-2012 respondent No.4 has been taken on deputation of 03 years, by respondent No.1. Vide letter dated 26th December, 2011 addressed to the Chairman CDA, request for placing the services of respondent No.4 by name was made which was acceded vide letter dated 10-1-2012 and on the next day i.e. 11th January, 2012 his services were placed at the disposal of D.G. Pak PWD and vide office order dated 13th of January, 2012, he has been posted to central civil division Pak PWD, Bahawalpur as Assistant Executive Engineer (BS-17) with the current charge of the post of Executive Engineer. One aspect which surfaced from the admitted facts is that mannerism in which respondent services hired on deputation of 03 years seems non-transparent. In the month of May, 2011 respondent No.4 was sent on deputation for 03 years and he acted as Zonal Manager, Utility Stores Corporations, Sargodha but all of a sudden, he came back to CDA and request by Ministry of Housing and Works received for sending him on deputation. Apparent reason for this favour could well be his close association with the Hon'ble Minister for Housing and Works. I really failed to understand that when regular employees in BS-17 and 18 having equal education and more experience are awaiting posting in the wings then why respondent No.4, services have been hired on deputation for 03 years and that too, twice in the six months? Admittedly, post of Executive Engineer is 100% promotion post, therefore, no stranger can be allowed to come and usurp the rights of regular employees. Such type of cryptic approach, enigmatic orders and polluted actions speak about bad governance, favoritism and irrelevant considerations. The superior courts of the country have never approved such type of actions which on face of it are besides law and rules applicable. In this view of the matter, instant writ petition is partly allowed and it is hereby declared that appointment of respondent No.4 on deputation, vide impugned notification is illegal, against entitlement, unprecedented, void ab initio, besides the dictums of the superior courts, non-transparent, sham, travelling on favoritism and infringement to the rights of the regular employees, which is hereby set aside with the direction that respondent No.4 may immediately be sent back to his parent department. As far remaining part of prayer of petitioner is concerned, same cannot be acceded to for the reason that on same subject the Hon'ble Lahore High Court, Bahawalpur Bench, vide order dated 16-1-2012 declined to interfere and directed the petitioner to approach the authorities concerned. H.B.T./96/Isl. Petition partly allowed.