2015 PLP (C (PLC(CS))

MUHAMMAD DAUD KHAN, J.

Through the instant writ petition, the petitioner Zahoor Khan seeks to declare the Notification No.SO(B/T)E&SE/8-6/2014/BISE, Bannu, dated, 2-6-2014, issued by the Secretary, Government of Khyber Pakhtunkhwa, Elementary and Secondary Education Department, whereby he was repatriated to his parent department, i.e., Higher Education Department, as illegal, void ab initio, against the law, based on mala fide and without lawful authority.

2. Succinct but necessary facts leading to the filing of the instant petition are that according to the petitioner he was appointed as Assistant Professor (BPS-18) in the Department of Zoology, University of Science and Technology, Bannu and was posted as Deputy Controller of Examinations on deputation basis. Thereafter, the petitioner was appointed on deputation basis as Controller of Examinations, Board of Intermediate and Secondary Education, Bannu (hereafter referred to as BISE) vide Notification No.SO(B/T)E&SE/8-6/2013/BISE, Bannu dated 30-12-2013 for a period of three years. Accordingly, he submitted his arrival report and assumed the charge. While performing his duties with sincerity, devotion and to the best of his abilities, but all of a sudden, vide Notification No.SO(B/T)E&SE/8-6/2014/BISE, Bannu, dated 2-6-2014, the petitioner, was repatriated to his parent department, i..e. Higher Education Department with immediate effect. Aggrieved by the order, the petitioner has preferred the instant petition.

3. Learned counsel for the petitioner argued that through the impugned notification, the petitioner was condemned unheard without calling for his explanation or issuing any show-cause notice to him in this respect; that the impugned order is prima facie illegal, tainted with mala fide and thus not sustainable in the eye of law; that the impugned order is in clear violation of section 24(A) of the General Clauses Act as the same is neither a speaking nor a reasoned order; that the petitioner has not as yet completed his three years tenure as per the deputation order; that the petitioner was not given an even handed treatment in accordance with law and, therefore, the impugned notification, dated 2-6-2014, warrants to be declared illegal, based on mala fide and without lawful authority.

4. Learned Additional A.-G. for official respondents, vehemently rebutted the arguments advance by learned counsel for petitioner by contending that there were various complaints against the petitioner and on the basis thereof facts finding enquiry was conducted, wherein he was found to be involved in violation of Government Policies, negligence and financial loss. This fact has also been mentioned in the notification issued by the competent authority vide No.SO(B/T)E&SE/S-6/2014 BISE, Bannu, dated, 16-10-2014, whereby the petitioner was suspended. Though the deputationist can be repatriated to the parent department at any time without assigning any reason, but here the situation is a little bit different, as he has been repatriated with reason, hence, there is no mala fide on the part of respondents and the petitioner has no cause of action to challenge the impugned order before this Court.

5. Arguments heard and available record perused.

6. As the record reveals, vide Notification No.SO(B/T)E&SE/8-6/2013/BISE, Bannu dated 30-12-2013, the petitioner, while serving as Assistant Professor (BS-19), as Deputy Controller of Examination, in University of Science and Technology, Bannu, was adjusted as Controller BISE, Bannu on deputation basis for a period of three years. Having served against the said post for about six months, vide notification dated 2-6-2014, the competent authority repatriated the petitioner to his parent organization i.e. Higher Education Department with immediate effect.

7. The question regarding maintainability of instant writ petition is concerned, no doubt, the matter regarding deputation and repatriation of petitioner relating to the terms and conditions of service, the Constitutional jurisdiction of this Court is barred, but since the service tribunal is/was not functioning and the petitioner having no other adequate remedy, hence, the question of bar of jurisdiction of the High Court under Article 212(2) of the Constitution in the instant case will not come into play till the establishment and its actual functioning, so as to attend the grievance of a civil servant under its jurisdiction. Reliance may be placed on case titled, "Sarfaraz Saleem v. Federation of Pakistan and others" (PLD 2014 SC 232), wherein it is held that:

"We are, therefore, in agreement with the learned Advocate Supreme Court for the petitioner that the question of bar of jurisdiction of the High Court under Article 212(2) of the Constitution in the instant case will not come into play till the FST is established in terms of section 3(3)(a) (ibid) and it is actually functional so as to attend the grievance of a civil servant under its jurisdiction. This position is not controverted by Mr. Shah Khawar, learned Additional Attorney-General."

8. So far as the main grievance of the petitioner regarding non-completion of his deputation period of three years and his repatriation to his parent department is concerned, suffice it to say that the deputation means administrative arrangement between borrowing and lending Authorities for utilizing the services of an employee in the public interest, which in no stretch of imagination accrues any right to a deputationist to continue for a period of deputation for which his services were acquired and here is no law in field to support such grievance of the petitioner. It is part of the service of a civil servant that he can be transferred or adjusted on deputation and repatriated at any time without any reasons by the authority as and when exigency of service requires. It is by now a settled law in view of plethora of judgments of the honourable superior Court that a deputationist does not have any vested right to remain on the post forever or for stipulated period for which he was deputed and the power rests and vests in the competent authority in his discretion to repatriate a deputationist to the parent department at any time without assigning any reason as and when deem proper or when the exigencies of service requires. In this respect reliance can be placed on "S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others" (2014 SCMR 799) and "Senate Secretariat through Chairman and another v. Miss Faiqa Abdul Hayee" 2014 SCMR 522.

9. It is on the record that the petitioner, on the basis of his performance and capability, was proposed and selected by Departmental Selection Committee and transferred/adjusted on deputation for a period of three years for the post of Controller of examination, BISE, Bannu. He was neither brought in through competitive process to hold the post in question, nor he was absorbed on the post after deputation, therefore having no vested right to remain on the post being a deputationist and can be repatriated to his original posting/ department at any time by the authority.

10. We while perusing the record of the case have seen that the competent authority on various complaints constituted an enquiry committee, vide office order No.1172/PA BISE-B dated 5-5-2014 to probe into the matter and find the facts to prepare a preliminary report headed by Chairman of the Enquiry Committee, Mr. Raj Muhammad Khan, Secretary, BISE, Bannu, and on its competition it was found that petitioner violated the computerized Draw list without regularizing in 2nd list as per Government Policy; appointed extra supervisory staff without prior approval of competent authority and thereby caused financial loss to the Board; unauthorized drawl of conveyance allowance; misuse of Government Vehicles and non-payment of income tax on Secrecy Advance payments. The report was sent to the Administrative Department. The Secretary of Khyber Pakhtunkhwa Elementary and Secondary Education Department, vide notification No.SO(B/T)E&SE/ S-6/2014, BISE, Bannu, dated 16-10-2014, placed the services of the petitioner, Controller of Examinations BISE Bannu under suspension for negligence in performance of his duty as Controller on account of various charges levelled against him with immediate effect. Hence, sufficient material is available on record, which might be used as reason for repatriation of petitioner's service to the parent department.

11. In the given circumstances, we do not find any infirmity in the impugned order that could warrant interference in constitutional jurisdiction of this Court. This petition being bereft of any merits is hereby dismissed. AG/78/P Petition dismissed.