1. ' AHMED ALI M. SHAIKH, J.-- By this common Order we propose to dispose of above-noted Constitutional Petitions as the impugned notification and the law points involved in all the petitions are the same.
2. ' In C.Ps. Nos.D-57 to 69, D-83 to D-85, D-97 of 2010, D-145 of 2010, D-368 of 2010, D-863 of 2010 to D- 865 of 2010, D-874, D-927 of 2010, D-928 of 2010, D-992 of 2010, D-993 of 2010, D-996 of 2010. D-997 of 2010, D-998 of 2010. D-999 of 2010, D-1000 of 2010, D-1003 of 2010, D-1133 of 2010 and D-1157 of 2010, the petitioners have called in question the impugned notification dated '7th January, 2010 issued by Respondent No,2 whereby the deputation of the petitioners who are working under the.
3. Government of Sindh on deputation basis was cancelled/withdrawn and they were repatriated to their respective parent departments with immediate effect. For the sake of convenience the contents of the impugned notification are reproduced as under:-- "The deputation period of following officers/officials, who are presently working under Government of Sindh on deputation basis, is hereby cancelled/withdrawn and they stand relieved/repatriated to their parent Department with immediate effect."
4. ' From the pleadings it appears that the Petitioners in the abovesaid Petitions who are basically the employees of the Corporations, Autonomous Bodies and some Institutions etc. Were transferred and posted in various departments of the Government of Sindh on deputation basis. It appears that initially some of the Petitioners were deputed for 2/3 years and after completion of such period, their deputation period was further extended and their grievance is that before completion of their deputation period, they cannot be repatriated to the respective parent departments.
5. ' On the other hand, in C.Ps.Nos.D-678 of 2009, D-864/2009, D-1856 of 2009, D-158 of 2010 and D-159 of 2010, the grievance of the Petitioners is that by inducting the outsiders/deputationists in the various departments of Government of Sindh, they have been deprived from their valuable rights such as promotion, seniority etc. They further. Challenged the appointment of the deputationists as well as their holding the posts on the ground that the employees posted by way of deputation lack the requisite qualification and experience etc. ' Mr. Muhammad Aqil Awan, learned counsel for the Petitioners/ deputationists contended that the impugned notification. Dated 7th January, 2010 issued by Respondent No,2 lacks reasons and same has been issued in a mechanical manner. Even the petitioners have been condemned unheard as none of them has been provided any opportunity of hearing before issuing the impugned notification which amounts to violation of principles of natural justice.
6. ' Per Mr. Awan, the term 'deputation' appears to be term of art but same is not defined in the Federal or Provincial Civil Servants Acts or the Rules framed thereunder, therefore in absence of such definition, the instructions and definitions contained in the ESTACODE are to be followed. He further contended that respondent No,2 was not vested with the powers to repatriate the petitioners before completion of their deputation period. Per learned counsel, Serial No,29-A of ESTACODE determines the normal period of deputation for all categories of government servants which is three years and it would be extendable to two years with the prior approval of the competent authority.
7. ' During the arguments, Mr. Awan was confronted with the decision of the honourable Supreme Court in the case of Dr. Shafi-urRehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 SCMR 378 where the points with regard to vested right of the deputationist and his early repatriation before completion of deputation period were discussed and decided, he took the plea that the said judgment is per incuriam as certain legal points were not brought to the notice of the honourable Supreme Court and the honourable Supreme Court was not properly assisted by the counsel appearing for the parties.
8. ' Mr. Muhammad Nawaz Shaikh, learned counsel for the Petitioners/deputationists contended that the impugned notification was issued when a Division Bench of this Court passed an interim order in C.P. No,D-807 of 2009 in which neither the Petitioners were party nor they were heard. Mr. Shaikh further contended that the Petitioners are not civil servants, therefore they cannot approach the Service Tribunal; the impugned notification is discriminatory in nature. As some of the deputationists are still working on deputation whereas the petitioners have been ousted.
9. ' Mr. Khalid Jawaid Khan, learned counsel for the petitioners' in C.Ps. Nos.D-864 of 2009 and 158 of 2010 contended that the Corporation employees cannot be sent on deputation. In this connection he referred to Serial No,29 of the ESTACODE. He further contended definition of "deputation" is not provided in the Sindh Civil Servants Act. However, he submitted that there should be criteria for a deputationist. He lastly contended that this Court should constitute a Committee for preparation of parameters with regard to the deputation and in case any person is sent on deputation, in that eventuality such criteria should be followed.
10. ' Mr. Moharram G. Balouch, Advocate for Petitioner in C.P. No,D-145 of 2010 adopted the arguments of Mr. Muhammad Aqil Awan and Mr. Muhammad Nawaz Shaikh and further added that the petitioner belongs to the Ministry of Education from where he was deputed in the Education Department, Government of Sindh.
11. ' Mr. Gohar Iqbal, Advocate for the Petitioners in C.Ps.Nos.D-992 and D-993 of 2010 also adopted the arguments of Mr. Awan and Mr. Shaikh.
12. ' Mr. Muhammad Arshad Khan Tanoli, learned counsel for respondent No,11 in C.P. No, D-864 of 2009 contended that the respondent is employed in Sindh Local Government and he is B-Tech (Honors) and his services were required by the borrowing department, however the learned counsel frankly admitted that proper procedure was not adopted while his deputation was made by the Chief Minister.
13. ' Mr. Abdul Salam Memon, learned counsel for the petitioners in C.P. No,D-1003 of 2010 adopted the arguments of Mr. Muhammad Aqil Awan and Mr. Muhammad Nawaz Shaikh. He, however, added that the petitioner was an employee, of Grade-20 and presently he is working in same grade.
14. However, on a query he very candidly admitted that the petitioner is M.B.A. And does not hold any degree in agricultural field but he contended that the Petitioner has served as P.D. In Tando Jam University, therefore he has sufficient experience. In support of his contention, he relied on certain documents annexed with the petition.
15. ' Conversely, Mr. Abdul Fatah Malik, learned A.A.-G. Appearing for Government of Sindh, contended that the deputation history is a very old and the same is in practice since long. Per learned A.A.-G., the rules regarding deputation are not contained in the Service Rules except the ESTACODE which pertains to the employees of the Federal Government and the employees of Sindh Government have nothing to do with the same as they have their own rules. Mr. Malik further contended that deputationists have no vested right, therefore they cannot call in question the impugned notification.
16. ' Mr. Zameer Ghumro, learned counsel for the petitioners in C.Ps. Nos.D-864 of 2009 and 158 of 2010 and C.P. No, D-1856 of 2009 while adopting the arguments of Mr. Abdul Fatah Malik, added that by absorption/induction of the employees of the Federal Government, corporations, autonomous bodies etc. The rights of the employees who are already working in the respective departments of Government of Sindh, have been adversely affected as none of them can be promoted because the higher posts are already filled through deputation as well as absorption of outsiders in the departments. He further contended that the Petitioner in C.P. No,D-1856 of 2009 has adversely been affected due to deputation of outsiders. Per learned counsel, no deputation powers lie either with the Federal Government or the Provincial Government. He emphasized that Sindh Government is not bound by the ESTACODE as the Sindh Government has its own service rules. He relied on a notification dated 15-6-1954 which defined the posts in the Provincial Government which are to be filled in by the Officers of the Federal Government. According to him, till today this notification is being implemented by the government. Mr. Ghumro referred to Rule 3 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 which provides the method of appointment. He further contended that the employees of Federal Government/Corporations lack the criteria and if a deputationist lacks the required qualification for the post, in that eventuality he holds the post without lawful authority and is liable to be ousted through a Writ of quo warranto. He lastly contended that the post occupied by the Petitioner in C.P. No,57 of 2010 pertains to Grade-18 whereas the deputationist belongs to Grade-17. Moreover, so many employees of Grade-18 are available in the Food Department but in order to accommodate the blue-eyed boys, the employees of the Federal Government and the Corporations have been posted/inducted in the Food Department.
17. ' Mr. Masood Noorani, learned counsel for the petitioners inC. Ps. Nos.D-864 of 2009 and D-678 of also adopted the arguments'of learned A.A.-G. And that of Mr. Zamir Ghumro, however he further contended that the respondents are not eligible to hold the post of E.D.O. (Works and Services) as the critaria .To hold such post is B.E. Civil/Technical/Mechanical whereas the Respondent is holding the degree of B.E. (Electronics). Mr. Noorani further contended that for the post of E.D.O. 20 years experience is required in Works Service Department. He referred to section 107 of the Civil Service Manual which provides that no government servant can he compelled to work and transferred to a foreign service against his will. Per learned Counsel, Serial No,13 of the ESTACODE provides that the employees of the autonomous bodies cannot he treated as civil servants. He further contended that the deptationist was neither required by the borrowing authority nor the requisite procedure was adopted while he was deputed in the department. Per learned counsel, the respondent is neither a civil servant nor he can be absorbed. He further contended that vide notification dated 11- 7-1985 issued by the Government of Sindh the requirement for the post in Grade-18 is 20 years experience and for promotion only the. D.P.C. Is competent to make recommendation. He further went on to say that the respondent lacks the required qualification, therefore he cannot hold the post in question. Mr. Noorani further contended that the respondents Nos.4 and 12 in C.P. No,D-864 of 2009 belong to a Corporate Body, therefore they cannot he treated as civil servants. He referred to sections 10 and 24 of the Sindh Civil Servants Act. He also contended that ESTACODE is applicable to the employees of the Federal Government as is evident from its preamble, whereas the employees of the Sindh Government have nothing to do with the ESTACODE. He further contended that even per Serial No,13 of the ESTACODE, only civil servants can be transferred/posted by way of deputation and the employee of Corporate Bodies who are not civil servants cannot be posted on deputation. He lastly contended that due to deputation of outsiders and irrelevant persons, the officers/officials of the concerned departments will be deprived of their due promotion etc. However, he submitted that there should be a proper procedure and in case of dire need competent persons can be called to work on deputation basis and that too if the borrowing department is unable to find competent persons for such assignment.
18. ' Miss Azima Naseer, learned counsel for the respondent in C.Ps. Nos.D-58 of 2010 and D-63 of 2010 adopted the arguments of Messrs Abdul Fateh Malik, Masood Noornabi and Zamir Ghumro, Mr. Mirza Adil Baig, learned counsel for the respondent in C.P. No,D-61 of 2010 also adopted the arguments of Mr. Malik.
19. ' Mr. Ali Azhhar Tunio, learned counsel for the respondent/Board of Intermediate and Secondary Education, Larkana in C.P. No,D-68 of 2010 very candidly admitted the contents of the petition and stated that the respondent will follow the order passed by this Court.
20. ' Mr. Muhammad Zubair Qureshi, learned counsel appearing for the respondent No,1/K.W.S.B. In C.P.
21. No,D-67 of 2010 and Mr. Afaque A. Saeed, learned counsel for respondent No,4 (Dow University of Health Sciences) supported notification.
22. ' Mr. Muhammad Mahmood Sultan Khan Yousfi, learned counsel for respondent No,1/K.W.S.B. In C.P.
23. No,D-85 of 2010 also adopted the arguments of Mr. Abdul Fatah Malik, A.A.-G.
24. ' Mr. Pervez Khan, Manager (Administration) Korangi Fisheries Harbour Authority/respondent No,5 in C.P. No,D-1133 of 2010 very candidly submitted that he will be abide by the order passed by this Court with regard to the fate of the deputationists.
25. ' Heard learned counsel for the parties and perused the impugned notification and other material available on the record, our conclusions are as under:-- "The term 'deputation' has not been defined in the Civil Servants Act and the rules made thereunder. However, the honourable Supreme Court in the judgment reported in PLD 1981 SC 531 has enunciated the following explanation of the deputation:--- "According to the practice in vogue a Government Servant begins to be regarded as a `deputationist' when he is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. He continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity but ceased to be regarded as such either on confirmation in the new post or on reversion to his substantive post."
26. ' Upon a perusal of the Civil Service Laws, we could not find any rules with regard to deputation. It seems that mostly such practice is adopted by the Government in order to accommodate their blue-eyed boys except in a few genuine cases. Section 10 of the Sindh Civil Servants Act, 1973 relates to posting and transfer which provides that a civil servant shall be liable to serve anywhere within or outside the province in any post in the Federal Government or Provincial Government or Local Authority, or Corporation or Bodies set up or established by any such government.
27. From a plain reading of aforesaid section it appears that the Sindh Government can exercise such powers with regard to civil servants only. However, under the abovesaid section, the Government/Authority A has no power to change the cadre of a civil servant nor civil servant can he absorbed or inducted in another cadre, therefore we hold that the Authority/Government cannot change the cadre of a civil servant or absorb/induct him in another department by changing his cadre etc. ' The moot point for consideration before us is whether a deputationist has any vested right to complete the deputation period and whether before completion of such period, he can be repatriated to his parent department. In this regard reference can be made to the case of Dr. Shafi-ur-Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 SCMR 378 wherein the honourable Supreme Court in Para 9 at page 383 while examining the above question held as under:-- "It is worth mentioning that a deputationist could not be treated as an aggrieved person provided he had been placed in the same grade and status in borrowing cadre which he was enjoying before his status of deputationist. It may not be out of place to mention here that a deputationist has no vested right to remain on a post as deputationist forever or for a stipulated period as mentioned in the notification and can be repatriated at any time. In this regard reference can be made the case title Muhammad Rafique v. Secretary, Wafaqi Mohtasib's Secretariat, Islamabad and 2 others 1998 SCMR 2631."
28. From the above dictum laid down by the honourable Supreme Court, we are clear in our mind that the Petitioners/deputationists have no vested right to remain on their respective posts forever or for a stipulated period and they can be repatriated back to their parent department at any time.
29. ' In the abovesaid case the honourable Supreme Court also defined the term "legal rights" in the following words:--- "A legal right is that right which is recognizable and enforceable at law. A legal right is less abstract than the conception which is represented by the unqualified word 'right', because the unqualified word includes both juristic and legal conceptions. The juristic conception have their source in and pertain to what is idealistic, or to the world order as a while, or to the social order in principle. They come out of what Prof. Roscoe Pound has called "cloudcuckootown", while legal conceptions and legal rights pertain to an actual legal order. These two kinds may sometimes fall far apart because while the former belongs to the science of law, the latter belongs to a particular system of law.
30. Hence jurists may hold different ideas as to them without affecting the law. The two systems need to be better understood by breaking them up, like a beam of light, into the waves of thought, by passing them, as it were through the prism of jurisprudence. The diffraction that is achieved is both realistic and colourful". Piran Ditta v. Noor Muhammad PLD 1966 Kar.
618. "The term includes rights conferred by Statute as well as not merely rights which are claimed independently of any statute."
31. ' In the above-cited case, the honourable Supreme also made reference to the case of Government of East Pakistan v. Federation of Pakistan PLD 1962 Kar. 353 wherein the term "legal rights" was examined and it was held-as under:-- "The term "legal right" obviously means a right recognized by law and capable of being enforced by the power of the State, but not necessarily in a Court of law. It is a right of a party recognized and protected by a rule of law, the violation of which would be a legal wrong done to his interest and respect for which is a legal duty, even though no action may actually lie."
32. ' After examining and discussing elaborately the term "legal right", the honourable Supreme Court in the case of Shafi-ur-Rahman (supra) held as under:- "On the touchstone of the criterion as discussed hereinabove the case of petitioner has been examined and we are of the considered opinion that petitioner has no legal right whatsoever and therefore, the question of its recognition or enforcement does not arise. We have no hesitation in our mind to hold that deputation can he defined as an administrative arrangement between borrowing and lending Authorities for utilizing the services of an employee in the public interest and exigency of services against a particular post and the deputationist cannot remain on deputation for an indefinite period or stipulated period in accordance with his own whims and wishes."
33. ' In fact, in the above-cited case, the deputationist was repatriated to his parent department before termination of his deputation period, as such he assailed the said order of repatriation before the High Court in a Constitutional Petition which was dismissed and the Petitioner called in question such dismissal before the honourable Supreme. Court but the apex court observed that a civil servant has no vested right to complete the deputation and that the matter relates to the terms and conditions of service, therefore the constitutional jurisdiction of the High Court under Article 199 of the Constitution cannot be invoked. It was further held by the honourable Supreme Court that a deputationist cannot be treated as an 'aggrieved person' provided he was placed in the same grade and status in the borrowing cadre which he was enjoying before his status of deputationist.
34. ' In the case of Munir Hussain v. Government of N.-W.F.P. Through- Secretary Elementary and Secondary Education Department N.-W.F.P. Peshawar and 3 others 2009 PLC (C.S.) 733 the petitioner who was on deputation for a period of three years, was repatriated to his parent department prematurely before the expiry of period of three years. He impugned such repatriation by way of Constitutional Petition praying therein that the notification of repatriation be declared as without lawful authority and of no legal effect. A Division Bench of the Peshawar High Court dismissed the petition in limine and in para 5 at page 735 of the judgment the honourable Division Bench observed as under:-- "It may be observed that there is no law that a deputationist should complete the tenure for which he has been deputed. It lies within the discretion of the competent authority to repatriate a deputationist as and when his services were not required by it/him, (borrowing department of the same were required by his parent department before the maturity of his tenure, as he is not supposed to work at the place of his own choice. Fida v. Government of N.S.F.,P. 2005 PLC (C.S.)
35. 1207. The impugned order whereby the petitioner has been prematurely repatriated may be an irregularity without affecting his terms and conditions of service or causing injustice to him which could not be assailed or interfered with in exercise of constitutional jurisdiction."
36. ' Another Division Bench of this Court in the case of Dr. Younis Asad Shaikh v. Province of Sindh through Secretary Health Department, Government of Sindh 2009 PLC (C.S.) 735 dismissed the petition holding the same to he not maintainable. The Petitioner in the said case was appointed as a Medical Officer on ad hoc basis and was allowed to work as Deputy Provincial Coordinator on deputation basis for three years and later on he was repatriated/transferred from the said post and such repatriation/transfer was challenged by him through constitutional petition. The judgment in the said case was authored by Mr.Justice Malik Muhammad Aqil Awan (as he then was).
37. Since the questions with regard to the vested right of the deputationist as well as repatriation of the !Deputationist before the termination of the period of deputation have already been examined and decided by the honourable Supreme Court in the case of Shafi-urRahman Afridi (supra), therefore we are bound to follow the same. It is now well settled principle of law that where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 of the Constitution and is binding on all Courts in Pakistan. It cannot be treated as mere obiter dictum.
38. Even obiter dictum of the Supreme Court, due to the apex place which the court holds in the hierarchy of courts in the country, enjoy a highly respected position as if it contains a definite expression of the court's view on a legal principle, or the meaning of the law. In this respect reference can be made to the case of Justice Khurshid Anwar Bhindar v. Federation of Pakistan PLD 2010 SC 483.
39. ' Regarding the contention of Mr. Muhammad Aqil Awan, learned counsel for the Petitioners/Denutationists that the judgment pronounced by the honourable Supreme Court in the case of Shafi-ur-Rahman Afridi (supra) is per incuriam, same is not tenable in view of the definition of the term "per incuriam" as given by the Supreme Court of India in the case of Punjab Land Development and Reclamation Corporation Ltd v. Presiding Officer Labour Court and others (1990)
40. 3 Supreme Court Cases 682 which reads as under:-- "The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previouS decision of its own or when a High Court has acted in ignorance of a decision of this Court."
41. ' However, Mr. Awan could not pinpoint any previous decision of the honourable Supreme Court which was ignored while deciding the case of Shafi-ur-Rahman Afridi (supra). Moreover, we cannot sit over the judgment of the honourable Supreme Court and if the deputationists have any grievance in this -respect, they can approach the honourable Supreme Court.
42. It may be observed that by inducting outsiders in various departments of the Government of Sindh, the civil servants who are already serving in their respective departments after qualifying the departmental examinations and/or going through the selection process, have been adversely affected and their reasonable expectation vis-a-vis their promotion, seniority etc. Has been snatched away in this fashion.
43. ' By posting outsiders on the basis of deputation in various departments of the Government of Sindh and by changing the cadres of the civil servants and inducting/absorbing them in various departments of the Government of Sindh, the Respondents have created unrest and sense of deprivation amongst the employees already Working there, therefore such practice is against justice, equity and 'good governance'.
44. ' In Human Rights Case No,8340-G of 2009 etc., the honourable Supreme Court while emphasizing on the term 'good governance', observed as under:--- "Before parting with the judgment, we may observe that good governance is largely dependent upon the upright, honest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to the bureaucracy. Civil service is the back bone of our administration. The purity of administration to a large extent depends upon the purity of the services. Such purity can be obtained only if the promotions are made on merit in accordance with law and Constitution, without favourtism or nepotism. It is a time tested recognized fact that institution is destroyed if promotions/appointments are made in violation of law. It will, in the ultimate result, paralyze automatically, The manner in which the instant promotions in the Civil Services have been made, may tend to adversely affect the existence of this organ. Honesty, efficiency and incorruptibility are the sterling qualities in all fields of life including the Administration and Services. These criteria ought to have been followed in the instant case.
45. Fifty-four persons were promoted in complete disregard of the law causing anger, anguish, acrimony, dissatisfaction and difference in ranks of services which is likely to destroy the service structure. "
46. However, in dire need the borrowing department can obtain the services of an employee serving in another department provided the lending department has consented to it and that no fit and suitable person commensurate to such post, is available in the borrowing department, after undertaking a proper exercise for the said purpose. Neither the Chief Minister has power to pass any order with regard to deputation of any officer/official, nor the rules authorize him to do so without following the proper procedure, as stated above, as by such practice the concept of 'good governance' is totally vitiated and. Being the custodian of the law we cannot allow/justify such practice.
47. ' In view of the dictum laid down by the honourable Supreme Court in the case of Shafi-ur-Rahman Afridi (supra), we are of the considered view that neither the deputationists have any vested right to complete their deputation period nor can they call in question the notification of their repatriation. We further observe that the Government/Authorities are not vested with the powers to change the cadre of civil servants for the purpose of inducting or absorbing them in other departments.
48. ' For the foregoing reasons, C.Ps. Nos.D-57 to 69 of 2010; D-83 to D-85 of 2010. D-97 of 2010, D-145 of 2010, D-368 of 2010. D-863 of 2010 to D-865 of 2010, D-874, D-927 of 2010, D-928 of 2010, D-992 of 2010, D-993 of 2010, D-996 of 2010, D-997 of 2010. D-998 of 2010, D-999 of 2010, D-1000 of 2010, D- 1003 of 2010, D-1133 of 2010 and D-1157 of 2010 filed by the deputationists being devoid of force and meriting no consideration, are dismissed in limine, with the result C.Ps. Nos.678 of 2009. D-864 of 2009, D-1856 of 2009, D-158 of 2010 and D-159 of 2010 filed against the deputationists in various departments of the Government of Sindh stand allowed. The petitioners/deputationists be repatriated to their respective parent departments immediately.