1998 PLP (C (PLC(CS))

(5) In continuation of orders dated 15-3-1997 and 19-3-1997 pending disposal of this writ petition, the present allocation of the post in question disturbing the appointment of the petitioner shall not be changed. " On the adjourned date of the case i.e. 10-4-1997, Tassaduqe Mukhtar, Section Officer, Ministry of Foreign Affairs, informed the Court that necessary steps for materialising the appointment of the petitioner as Consul-General in Sydney were being taken actively and expectedly the same would be finalised shortly. The case was, therefore, adjourned with the following order: -- "Section Officer, Ministry of Foreign Affairs, states that Irfan-ur? Rehman Raja, Director (P&I) being not well has deputed him to appear before this Court. He has produced a copy of letter dated 28-3-1997 written by Director (P&I) to Pakistan High Commission at Cambera and a Fax message from Pakistan High Commission to the Ministry of Foreign Affairs conveying information that the matter relating to the appointment of the petitioner as Consul-General in Sydney has been taken up with the concerned authorities in Australia. He states that a copy of the correspondence made by the Pakistan High Commission at Cambera with Australian Authorities on the subject shall be produced before the Court on the next date and that necessary direction shall be issued to the High Commission for finalising the matter on priority basis. According to him, the needful is expected to be done by the Host country within a short time and that the moment message is received, the visa for the petitioner shall be arranged. (2) Khurshid Anwar Shah, Section Officer, Ministry of Commerce, states that the payment of transportation charges, salary and T. A./D.A. shall be made within a week." The position remained standstill till 23-4-1997, when the following order was passed:-- "Muhammad Saleem, Section Officer, Ministry of Foreign Affairs producing a letter dated 8th April, 1997 of High Commission for Pakistan at Cambera addressed to Department of Foreign Affairs and Trade Commonwealth of Australia, Cambera containing a request for conveying the concurrence to the appointment of the petitioner as Consul-General of Pakistan stated that the requiste agreema having not yet conveyed, no further step could be taken. (2) The petitioner has produced a letter dated 21-4-1997. of Consulate- General of Pakistan, Sydney Australia, wherein it is stated that only in the case of Ambassadors/High Commissioners, agreema is issued prior to the arrival in the host country and in case of Head of Consular post an exequatur is issued. According to the Consulate General of Pakistan, the Australian Authorities have advised that the visa should be applied to the Australian High Commission. Islamabad, which will be issued prior to the issue of exequatur. (3) This being so, respondent No. 2 without waiting for the formality of agreema or exequatur as the case may be shall issue note verbal within two days to enable the petitioner to apply for visa to the Australian High Commission, Islamabad and submit progress report on 25-4-1997 The petitioner shall provide necessary information including his passport number to Muhammad Saleem, Section Officer today to do the needful. " ?Mr. Babar Hashmi, Director (P-I) appearing before this Court submitted a report on the subject referred in the order dated 28-4-1997, reproduced hereunder:-- "Mr. Babar Hashmi, Director (P-I) placing a copy of note verbal on the record issued on behalf of respondent No. 2 to the Australian High Commission, Islamabad (copy of which has been delivered to the petitioner in Court) states that all formalities having done by the foreign office, the petitioner on receipt of Exequatur/agreema of host country and visa from Australian High Commission can proceed to take over the charge of his assignment. He undertakes to pursue the matter with the concerned authorities in Cambera on priority basis through issue of reminders to Pakistan High Commission for doing the needful early and submit report on the next date. He regrets for the inconvenience caused to the Court due to the conduct of the official earlier dealing the matter." The petitioner apprehending some foul play on the part of Foreign office stated that delay was being caused in completing the formalities purposely to undo his foreign posting with a view to substitute him with some favourite person. Mr. Babar Hashmi, Director (P&I), Foreign Office was directed to appear in person vide order dated 7-5-1997 and explain the position. The said order is reproduced as under:-- "Learned Standing Counsel having placed on record the copy of letter dated 6-5-1997 whereby the necessary information sought by the High Commission of Australia at Islamabad for issue of visa has been supplied. He has also placed a copy of Fax Message from Parep Cambera under the signature of Mr. G. Farid Farrukh, First Secretary Foreign Office, Islamabad whereby it is stated that concurrence of the authorities of Host country will be communicated on its receipt. . (2) The petitioner states that as per his information no serious effort has been made to finalise the matter and the letter placed on record was not actually sent to the host country. (3) The general information does not indicate that what efforts have been made by the Pakistan High Commission at Cambera in consequence of the undertaking given by Mr. Bashir Hashmi, Director (P&I) before this Court. Let Director (P&I) appear in person on the next date and explain the correct position through the correspondence actually made by the Pakistan High Commission. (4) Learned Standing Counsel also wants some time to go through the reply submitted by Mr Ross Masud, Deputy Legal Advisor. (5) Adjourned to 20-5-1997." Mr. Babar Hashmi, Director (P&I) informed the Court on 20-5-1997 that the necessary concurrence of the Host Country has been received, whereupon the following order was passed:-- "Mr. Babar Hashmi, Director (P&I) states that the concurrence of the Host Country has been received and the petitioner in his discretion can proceed at any moment and that Foreign Office is no more involved in the matter." The learned counsel for both sides jointly stated before the Court on 5-6-1997 that the petitioner has assumed the charge at Sydney and this petition having been fruit need not to proceed further requested for its disposal alongwith the contempt matter.

4. The contempt proceedings initiated against Mr. Ross Masud, Deputy Legal Advisor were postponed to 12-6-1997 to enable the contemner to submit additional reply as requested. The contemner tendering unconditional apology submitted that he did not intend to be disrespectful to the Court or disobey the order of this Court. Learned counsel for the petitioner states that contemner possibly for some misunderstanding behaved abnormally and also requested for acceptance of apology. Considering the unconditional apology submitted by Ras Masud, Deputy Legal Advisor, Ministry of the Foreign Affairs further proceedings against him in contempt matter are dropped with the warning to him to be careful in future. '

5. In the normal circumstances a person on Foreign Posting is not recalled before completion of minimum tenure of three years, whereas the petitioner within one year of his appointment as Commercial Consular in Copenhagen, was withdrawn and subsequently with such an interval was posted as Consul-General in Sydney by the Ministry of Commerce through a fresh order. The order of all diplomatic foreign posting are implemented through the Ministry of Foreign Affairs but except in cases of posts belonging to Foreign Service or placed on the disposal of Ministry of Foreign Affairs, as the case may be, the said Ministry does not retain the power of appointment or posting of any person inside or outside the country. The Foreign Ministry discharging the functions of Liaison office in the matter of foreign appointments/postings of a person of another department or Ministry against any such post, has to complete the required formalities for maturing such posting as an obligation and official duty. The non-?performance of the said duty within reasonable time can create trouble through unforeseen problem for the concerned country as well as the individual. Therefore, the official responsible for non-performance of such duty can be proceeded against for negligence and wilful dis-obeyance of order, as the case may be, under Government Servant Efficiency and Discipline Rules, 1973. During the proceedings, the representative .of respondent No. 2 stated that the post against which the appointment of the petitioner has been made was being sought to be allocated to the Foreign Ministry and the same being under consideration with the Prime Minister, unless decisive step was to be taken, the implementation of the order of appointment of the petitioner was to be necessarily withheld. The act of the officials of the Foreign Office to get the post in question to be placed at the disposal of Ministry of Foreign Affairs to accommodate some official of said Ministry through usurping the right of all Government servants in other Ministries and departments with an attempt to make the posting of the petitioner by withholding the process at the instance of respondent No. 2, was unbecoming of a good Official. The foreign posting relating to the posts not on the cadre of Foreign Service or on the disposal of Ministry of Foreign Affairs is not supposed to be made by the Ministry of Foreign Affairs and, therefore, the concerned Officials of respondent No. 1 were not justified in delaying the process of completing the formalities for implementation of the order of appointment of petitioner as Consular-General in Sydney. The Ministry of Foreign Affairs like other Ministries and the Departments of the Federal Government, while discharging its functions in relation to such matters concerning with the foreign posting and transfer of Officials other than Ministry of Foreign Affairs has to play only the role of an agent and not that of the controlling Authority and, therefore, encroachment upon the rights of others by the Foreign Ministry in such manner would definitely cause unrest among the Government servants.

6. The Official of respondent No. 2 in derogation to the Rules and contrary to the object of smooth running of the business of the Government with coordination and cooperation of the Departments and the Ministries inter se and instead of doing the needful as per their Official obligation as public servant watching their personal interest made an attempt to frustrate the appointment of the petitioner compelling him to knock the door of the Court.

7. The petitioner having appointed by the Ministry of Commerce as Consul-General in? Sydney was restrained from assuming the charge as such, by the respondent No. 2 by withholding the process of obtaining the requisite agreema with the ulterior motive not to implement the order until the post is given to the Foreign Ministry caused delay of about of six months in release of the petitioner, therefore, his tenure of foreign posting will definitely take place from the date of assumption of charge of office and not from the date of appointment/ initial posting.

8. The representative of the Ministry of Commerce conceding the entitlement of the petitioner stated that salary alongwith travelling and daily allowance has been paid to him.

9. In the light of the foregoing reasons, this petition having borne fruit is allowed with direction to the respondent to pay all expenses borne by the petitioner on journey from Copenhagen to Pakistan with daily allowance as permissible under the Rules for the period during which his appointment as Commercial Consul in Copenhagen remained unchanged. No order as to costs. A.A./M-574/L???????????? ?????????????????????????????????????????????????????????????????????? Petition accepted.