Raja Fayya z Ahmed, J.--In the earlier round of litigation culminating in the filing of Civil Petitions Nos, 918, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929, 984, 996, 961, 1142, 1143 & 1230 of 1998 by the petitioner and others against the orders dated 25.5.1998, 26.5.1998 & 16.7.1998, whereby ICA Nos, 40 to 48 of 1998, 50, 52, 55, 53, 59, 61 & 94 of 1998 dismissed by the learned High Court, Rawalpindi Bench, Rawalpindi were disposed-of by this Court vide order dated 4.12.1998 in the terms specified therein reproduced hereunder in extension:-- "Ajmal Mian, CJ.--Petitioners in above petitions are School Teachers who were on deputation in the Federal Ministry of Education, Islamabad, from the Provinces of Punjab, Sindh and NWFP. Their husbands are working in various Government Department at Islamabad/Rawalpindi. The deputation period of the petitioners have expired. They do not wish to go back to their respective Provinces on the ground that their husbands are still posted at Islamabad/Rawalpindi. Mr. Abdul Karim Khan Kundi, ASC appearing the petitioners has produced a copy of Office Memorandum No, 10/1/84-R-5, dated 26th November, 1998 issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad, addressed to the Ministry of Education, Islamabad, which reads as follows:-- OFFICE MEMORANDUM Subject: ABSORPTION OF FEMALE TEACHERS ON DEPUTATION TO FEDERAL GOVERNMENT SCHOOLS, ISLAMABAD FROM PROVINCIAL EDUCATION DEPARTMENTS.
The undersigned is directed to refer the Ministry of Educkion's O.M. MO.D-1281/98-CEI, dated 12th October, 1998, on the above subject and to request that the following information/documents may be supplied to this Division:--
(i) A copy of formal concurrence of the provincial governments to the permanent absorption of its employees in the Federal Government.
(ii) A certificate/confirmation to the effect that husbands of the lady teachers proposed to be absorbed are working under the Federal Government at Islamabad.
2. The proposal in regard to absorption of TUGTs and MTTs who do not carry the pay scales at par with those of the Federal Government for similar posts, cannot be accepted because under Rule -9 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, appointment by transfer is permissibly only from persons servings in the same Basic Pay Scale. Ministry of Education is requested to furnish its comments, if any, on this point.
SD/- (Muhammad Arshad) Section Officer
3. When the above petitions came up for hearing before this Court on 26.11.1998, Mr. Abdul Karim Khan Kundi, ASC, has pointed out that Provincial Governments are not accepting the petitioners as their employees. We had issued notices to the learned Deputy Attorney General, Advocate Generals of the Provinces. In response to the above notice Maulvi Anwarul F.aq, Dy, AG., Mr. M.
Sardar Khan, AG NTWFP, and Mr. Muhammad Zeman, ASC representing AG Punjab, are present.
They state that the petitioners have still lien over their respective posts in the Provinces.
4. In our view, it will be appropriate if no further action is taken against the petitioners for a period of three months. In the meantime, if some action is taken pursuant upon above OM the same may be implemented, otherwise they will be repatriated' to their respective Provinces. Petitions are disposed in the above terms."
2. Vide Office Order dated 3.10.2003 the petitioner was repatriated to her parent Department and relieved from duty with immediate effect by the Federal Directorate of Education, Government of Pakistan. The contents of the Office Order reads as under:-- "Consequent upon the decision of Supreme Court on Civil Petition No, 984 etc dated 4.12.1998 and amendment in Recruitment rules for absorption/appointment through transfer Mrs. Hamida Begum, PTI, (Junior) (deputation) Federal Government Girls Primary School, Humak (FA), Islamabad is hereby repatriated to her parent department and relived from duty with immediate effect.
2. As she as been on deputation since 2.6.1994 i,e, more than 09-years and she could not be retained/absorbed for further period as she is not qualified according to the recruitment rules i.e: FA/FSc IInd Division with junior diploma in physical Education.
3. This is issued with the approval of the Competent Authority."
3. Petitioner Hameeda Begum was working as Physical Education Teacher (PET) in the Government Girls High School, Nakot, District Mansehra and was taken on deputation from NWFP as PTI for a period of 3 years. She joined Federal Directorate of Education on 2.6.1994. On completion of her tenure she was repatriated to her parent Department on 22.5.1997. Thereupon, she challenged her repatriation order in Writ Petition before the learned Lahore High Court, Rawalpindi Bench, Rawalpindi. She was allowed to continue her duty in the light of the stay order issued by the said learned Court. Eventually, her Writ Petition No, 3093 of 2003 was dismissed vide judgment dated 14.5.1997 whereafter, her repatriation order with effect from 20.7.1998 were again issued which was unsuccessfully, assailed in ICA, before the learned Division Bench of the Lahore High Court. After the dismissal of her ICA as above noted, the petitioner along with others filed Civil Petitions before this Court which were disposed of vide order dated 4.12.1998. Subsequently, vide Office Order dated 3.10.2003 the Federal Directorate of Education, Government of Pakistan repatriated the petitioner to her parent department on the ground that she remained on deputation for a period of 9 years could not be retained/absorbed for further period as she is not qualified according to the recruitment rules i.e FA/FSc 2nd Division with Junior Diploma in Physical Education. This order was challenged in Writ Petition No, 3093 of 2003 by the petitioner before the Lahore High Court, Rawalpindi Bench, Rawalpindi dismissed by the learned Single Judge in the Chambers on 5.4.2004.
The petitioner feeling dissatisfied with the dismissal of her Writ Petition filed ICA No, 93 of 2004, which met the same fate vide impugned judgment dated 11.11.2008 passed by the learned Division Bench of the Islamabad High Court, Islamabad. The operating part of the impugned judgment is reproduced herein below:-- "9. Appellant petitioner's Constitution Petition No, 3093 of 2003 was dismissed by the learned Judge in Chamber of Lahore High Court, Rawalpindi Bench, Rawalpindi. CPLA was filed before the Hon'ble Supreme Court of Pakistan, which was disposed of on 4.12.1998. Appellant lacks requisite qualification and was not absorbed by respondent on that count. Appellant availed the remedy through constitution petition by invoking the jurisdiction under Article-199 of the Constitution of Islamic Republic of Pakistan which was dismissed and the decision was affirmed by Hon'ble Supreme Court of Pakistan. After the decision of Hon'ble Supreme Court of Pakistan, appellant cannot seek the remedy once again on the same cause of action. The constitution petition is not maintainable on this score. Even otherwise the appellant has failed to establish her case, as she does not possess requisite qualification for acclaimed absorption. The absorption or extension of period in deputation falls within the domain of departmental authority, which has exercised its discretionary power in accordance with law. No interference is called for in the judgment passed by the learned Judge in Chamber. This appeal being meritless, is dismissed."
4. The earlier Civil Petition on the same subject was disposed of by this Court vide order dated 4.12.1998 whereafter the petitioner filed complaint with the Wafaqi Mohtasib where her claim was that she may not be repatriated unless the rules for permanent absorption of deputationists are not approved by the Establishment Division. Vide O.M. No, 10/1/84/-R-5 dated 26.6.2003 the Establishment Division accorded approval for the amendment of the recruitment rules.
5. The learned counsel for the petitioner and Mr. Shah Khawar, DAG for Respondent Nos, 1 to 4 have been heard. The learned counsel for the petitioner contended that during the pendency of the 1CA, the petitioner was successful in obtaining Master Degree in Physical Education in the year, 2005 which stand on a high pedestal being a higher qualification than the Junior Diploma in Physical Education. As regards the second objection of the pay scale of PET remained uncontested as the NWFP Government upgraded the Post from BS-12 to BS-14 for the holders of BA degrees.
Accordingly, the petitioner was placed to the upgraded post with effect from 11.1.2001 and petitioner's pay scale thus, became equivalent to the scale of PTI in the Federal Government and besides a number of employees have been absorbed in the Federal Government, Education Department but discrimination has been meted out to the petitioner.
The learned counsel when confronted to the operating part of the order passed by this Court on 4.12.1998 submitted that it was the duty of the Government to have issued NOC with regard to the permanent absorption of the service of the petitioner in the Federal Government, Education Department or at least reference for the purpose to have been made to the Provincial Government by the Education Department, Government of Pakistan. The learned counsel further contended that the petitioner still holds her lien of service in her parent department of NWFP, unless NOC is issued by the Provincial Government.
6. On the other hand, the learned DAG argued that subsequent to the decision of this Court, after due consideration and examining the case of the petitioner vide Office Order dated 3.10,2003, she was repatriated to her parent department and relieved from duty as she was deputation for a period of more than 9 years with the Federal Government and could not be absorbed for being not qualified as per recruitment rules i.e FA/FSc 2nd Division with Junior Diploma in Physical Education.
According to the DAG since action has, been taken with regard to the repatriation of the petitioner to her parent department in the light of the OM reproduced in the order dated 4.12.1998 passed by this Court, therefore, in terms of the said order and the repatriation order passed on 3.10.2003 needs be acted upon as the formal concurrence of the Provincial Government for the permanent absorption of the petitioner in the Federal Government has not been given.
7. Notwithstanding the ground with regard to the improvement of qualifications of the petitioner and the question of her entitlement to be permanently absorbed in the Federal Government under the rules for time being in force; admittedly, the petitioner who holds lien in her parent department of the Province could not be absorbed permanently in the Education Department, Government of Pakistan for want of concurrence of the Provincial Government nor such a concurrence pre- requisite for absorption as claimed was conveyed to the Federal Government which till date has not been done. Vide Office Order dated 3.10.2003 the petitioner was repatriated to her parent department with a copy thereof forwarded to the Director Public Instructions, Peshawar, the District Education Officer/the Executive District Officer, Mansehra, and the District Accounts Officer, Mansehra to which no response was shown by the parent department of the petitioner nor concurrence of Provincial Government for permanent absorption of the petitioner in Education Department of the Federal Government was conveyed in absence whereof, obviously the petitioner's service could not be absorbed in the concerned department of the Federal Government even if she holds the requisite qualifications and eligibility for such absorption. The petitioner also did not approach to the Provincial Government for the purpose for grant of NOC and consequently, in terms of the order passed by this Court on 4.12.1998 reproduced herein above the Office Order issued by the Federal Government for repatriation of the petitioner holds the field.
Hence; the impugned judgment in our considered opinion is not open to any exception.
8. Thus, for the foregoing reasons this Civil Petition having no substance is dismissed. Leave refused.