1996 PLP (C (PLC(CS))

MUNAWAR AHMED MIRZA, C.J.‑‑‑Facts giving rise to the filing of present petition are brief and simple. Petitioner was admittedly appointed as Senior Scale Stenographer in the Provincial Assembly Secretariat vide Notification Admn. 11(202)86, dated 18th of October, 1986. His ad hoc appointment was regularised as Senior Scale Stenographer BPS‑15 with effect from 13th October, 1987 through Notification issued by Secretary, Provincial Assembly on 18th October, 1987. Subsequently by means of Notification dated 4th April, 1990 petitioner was confirmed in Selection Grade‑16; which is reproduced below:‑‑ "Balochistan Provincial Assembly Secretariat Dated Quetta, the 4th April, 1990 ORDER No. Admn. 11(152)/74.‑‑‑Mr. Abdul Karim, Senior Scale Stenographer, (Selection Grade‑16) of "Balochistan Provincial Assembly Secretariat, is hereby confirmed as Senior Scale Stenographer, with immediate effect. (Sd.) (AKHTAR HUSSAIN KHAN), Secretary, Balochistan Provincial Assembly. Documents placed on record reveal that Pursuant upon meeting presided over by Speaker, Provincial Assembly towards 3rd March, 1993 decision was taken to transfer the petitioner on deputation to any department of Provincial Government. Consequently, Chief Minister issued directions whereupon petitioner was relieved from Provincial Assembly Secretariat on 27th May, 1992 for reporting to Secretary, Communication and Works Department, Balochistan. Surprisingly petitioner remained without posting for almost one year. Eventually he was temporarily transferred to Finance Department vide Notification dated 15th May, .1993; which is, however, reproduced below:‑‑ "GOVERNMENT OF BALOCHISTAN SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (SECTION V) Dated Quetta, the 15th May, 1993. ORDER No. S-V(S&GAD)24‑81/93/1364‑67.‑‑‑Mr. Abdul Karim, Senior Scale Stenographer, Provincial Assembly Secretariat is hereby transferred and posted (temporarily) in the Finance Department with immediate effect and until further orders.

2. The period during which Mr. Abdul Karim, Senior Scale Stenographer (i.e. 28‑5‑1992 to 14‑5‑1993) remained without posting is treated as the period spent on duty and he is allowed to draw his pay and allowances for the above period against the existing vacancy of Senior Scale Stenographer in Finance Department, under the provision of F.R. 9‑VI)(b) iv". SECRETARY, S&GAD." It may be seen that Provincial Government on 19th October, 1992 reverted the petitioner to his parent department and relieved him for joining Provincial Assembly Secretariat. Notification is mentioned below:‑‑. "GOVERNMENT OF BALOCHISTAN SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (SECTION V) Dated Quetta, the 19th October, 1994. ORDER No. S.V(S&GAD)24‑81/9315202‑06.‑‑‑Mr. Abdul Karim, Senior Scale Stenographer (Selection Grade‑16) Balochistan Provincial Assembly Secretariat, temporarily performing his duties in the Investment Advisor Promotion Department, Civil Secretariat, is hereby relieved of his duties and reverted/directed to report to his parent Department, Balochistan Provincial Assembly Secretariat with immediate effect. SECRETARY, S&GAD." Thereafter petitioner on 19th October, 1994 reported for duty to Secretary, Balochistan Provincial Assembly. Reminder was also given towards 10th November, 1994 but neither petitioner was allowed to resume duty nor assigned duty. Ultimately on 28th May, 1995 petitioner was conveyed that lien in the Assembly Secretariat was terminated. For ready reference said Notification is reproduced below:‑‑ Dated Quetta, the 28th May, 1995. ORDER "No. Admn. II(567)/86.‑‑‑Mr. Abdul Karim, Ex‑Senior Scale Seeno2rahher of Balochistan Provincial Assembly Secretariat due to his misbehaviour with the Ex‑Speaker and under orders of Ex‑G Minister relieved from Assembly Secretariat with effect from May, 1992 vide Assembly Secretariat order of even number dated May, 1992 to report in C&W Department of Balochistan Civil Secretariat.

2. Senior and Junior Scale Stenographers of Assembly Secretariat were accordingly promoted and later confirmed in the channel.

3. Following the hardship consequences of the promotees and continuous absence for three years of Mr. Abdul Karim, Ex‑Senior Stenographer, the competent Authority under F.R. 14(b) while exercising his option is pleased to terminate the lien of official concerned with immediate effect. (Sd.) (MUHAMMAD SHARIF) JOINT SECRETARY (ADM) Balochistan Provincial Assembly." Petitioner made representation to Speaker, Provincial Assembly against above decision regarding termination of his lien. Finally said representation was rejected on 3rd August, 1995. These orders have been challenged through present petition. Respondent No. 3, Secretary to Government of Balochistan Services and General Administration Department filed parawise comments on 29th of October, 1995. It has been asserted that petitioner was an appointee of assembly Secretariat and on temporary arrangement was transferred to Provincial Government. However, he has been relieved for reporting back by means of Notification dated 19th October, 1994 already reproduced above. It was categorically mentioned that petitioner being regular employee of Assembly Secretariat therefore he was rightly relieved by the Provincial Government for joining duty in the Assembly. Secretary, Balochistan Provincial Assembly also filed parawise comments on 2nd of October, 1995, expressing that petitioner was permanently transferred to Provincial Government by means of order dated 26‑5‑1992 and cannot be deemed on deputation there. It is worth while to mention here that said order was. specifically withdrawn by Chief Minister, Balochistan on 3rd of February, 1993. Copy whereof is attached by Provincial Government alongwith parawise comments. For convenience same is reproduced below: CHIEF MINISTER BALOCHISTAN I understand Mr. Abdul Karim, P.A. to Joint Secretary, is a permanent member of his cadre in the Balochistan Assembly Secretariat and legally he cannot be adjusted either by transfer or otherwise in other cadre of any Government Department, therefore, the order of his transfer issued vide U.O. No. US‑CM/1992/1‑25/92/3027‑31, dated 26th May, 1992, under my signatures is hereby withdrawn/cancelled with the direction that he should be adjusted/reported against his original post in Balochistan Assembly. The intervening period so involved may be treated as leave of the kind due to the official. (Sd.) (MIR TAJ MUHAMMAD KHAN JAMALI)." However, according to stand of respondent No. 2 (Secretary, Provincial Assembly) petitioner was responsible for gross misconduct and misbehaviour, causing his transfer therefore, Assembly Secretariat is not prepared to accept him. While admitting that petitioner was permanent employee of Balochistan Provincial Assembly attempt was made to explain that his lien, stood terminated by means of order dated 28th May, 1995. Maintainability of Constitutional petition was challenged on the ground that petitioner being a civil servant could seek redress of his grievance only by invoking jurisdiction of Balochistan Service Tribunal. Mr. Nazir Durrani learned counsel for petitioner emphatically urged that petitioner is a permanent employee of Balochistan Assembly Secretariat and was sent to Provincial Government temporarily on deputation, therefore, on his reversion to lending Department (Assembly Secretariat) he exclusively became there for due adjustment in his own pay scale and cadre. Learned counsel argued that refusal of Assembly Secretariat to accept petitioner or assertions regarding termination of lien by order dated 28‑5‑1995 is completely devoid of lawful authority and in excess of jurisdiction vested in respondents Nos. 1 and

2. Learned counsel stressed that Fundamental Rule 14‑B under which respondent No. 2 had purportedly assumed jurisdiction is not applicable to petitioner. According to him, due to mala fide impugned order .had been passed disregarding basic requirements of law. Learned Additional Advocate‑General on behalf of Provincial Government supported the stand of petitioner. It was contended that petitioner having been temporarily transferred to Provincial Government on the request of Speaker, therefore, as deputationist he could be returned by the borrowing department at their discretion and lending Department (Provincial Assembly Secretariat) was under legal obligation to receive him back. He also did not support order dated 28‑5‑1995 passed by respondent No. 2, on the ground of being defective. Raja M. Afsar learned counsel for Provincial Assembly vehemently opposing the petition challenged its maintainability on the ground that petition being civil servant could only invoke remedy by approaching Balochistan Service Tribunal. Learned counsel argued that transfer of petitioner was on permanent basis, therefore, Provincial Government eras not justified in returning him for resuming duty in Provincial Assembly Secretariat. According to him even if respondents were not able to terminate the lien of petitioner yet authority vested to suspend the same under Fundamental Rules. We have carefully considered the points at variance between the parties, in the light of above arguments. First of ail we would like to examine the objection regarding maintainability of the petition. It may be seen that question raising main controversy does not relate to terms or conditions of petitioner's service Dispute factually requires determination of petitioner's status of being permanently absorbed in Provincial Government or continuing as deputationist on the basis of certain mutual arrangements between lending and borrowing authorities. Therefore, grievance agitated in the petition has no nexus with terms or conditions specified in Balochistan Civil Servants Act. Thus, objection raised by Raja M. Afsar, Advocate regarding jurisdiction has no substance. Undisputedly petitioner was employed by Provincial Assembly Secretariat. Record discloses that on the basis of request made by Speaker, he was transferred to Provincial Government Department. The order of his transfer, proposed posting in C&W and utilisation in Finance Department indicates, adjustment on temporary basis. It is quite apparent that petitioner was on deputation from Provincial Assembly Secretariat to Government Department. Obviously 'deputation' is an arrangement whereby Government, any section of Governmental authority, statutory body agrees to lend an employee of such Department, Institution or Organisation to another Department on mutually acceptable conditions between lending and borrowing authorities. There is no cavil to the principle of law, that a Government employee who is sent on deputation to serve the borrowing authority, continues to hold his basic service cadre with parent department till his permanent absorption in the borrowing department, pursuant upon his conscious consent. Lending department does not enjoy any power or authority under the law to arbitrarily revoke or terminate lien of his employee temporarily serving in some other institution, statutory body or Government Department as deputationist. We have no doubt in our mind that employee serving on deputation m Government Department retains his right. of reversion to parent department. It needs to be clarified that transfer of an employee on deputation, by no stretch can constitute part of punishment. It appears that respondents Nos. l and 2 have made efforts that petitioner his permanently absorbed by the Provincial Government and Letter No. Admn 11(567)186, dated 12th April, 1995 was also addressed by Deputy Secretary Admn. Balochistan Provincial Assembly to Secretary, S&GAD but to no avail. Detailed facts brought on record manifestly show that petitioner is basically employee of Balochistan Provincial Assembly, and has not been permanently absorbed in any department of Provincial Government despite persistence of assembly Secretariat. It is well‑settled that borrowing authority (Provincial Government in this case has inalienable powers to return/revert petitioner who as working on deputation to his parent Department at its discretion; whereas respondents Nos. 1 and 2 the lending authority has absolutely no jurisdiction for declining to receive their own employee being on deputation to Provincial Government. Obviously petitioner who is in service, cannot be left in lurch for Loving to and fro like pendulum between the Secretariat of Provincial Assembly and Civil Secretariat. He has basic Constitutional right to be dealt with in accordance with law. Accordingly we are persuaded to hold that after being received from Provincial Government, petitioner obviously became responsibility of Balochistan Assembly Secretariat, therefore, action of respondents Nos. 1 and 2 refusing to receive him was undoubtedly in excess authority vested in them and as such of no legal effect. Now looking to aspect of terminating lien, vide order dated 28‑5‑1995, suffice it to observe that relevant Rules are not attracted at all. No powers are ‑Led with lending authority to terminate lien of deputationist merely because was performing functions in the borrowing department Fundamental Rule 14‑B under which lien has been terminated does not apply at all. For reference it is reproduced below;‑‑ F.R. 14‑B. Subject to the provisions of rule 15, the Governor‑General may transfer to another permanent post in the same cadre the lien of a Government servant who is not performing the duties of the post to which the lien relates, even if that lien has been suspended." For the above reasons we are inclined to accept the petition, declare order dated. 28th May, 1995 passed by respondent No. 2 is devoid of lawful authority and actions of respondents Nos. 1 and 2 regarding refusal to accept petitioner in his own pay and scale, is totally devoid of lawful authority and in excess of jurisdiction bestowed upon them by law. Consequently we direct that respondents shall absorb the petitioner in Balochistan Assembly Secretariat providing him protection of his pad and scale with immediate effect. Parties are, however, left to bear their own costs. A.A./570/Q Petition accepted