1. ' SHAHID ANWAR BAJWA, J.--- Petitioner argued this petition in person. Petitioner is an Officer in BPS- 17 in the Ministry of Labour, Manpower and Overseas Pakistanis and was posted as Assistant Director, National Institute of Labour Administration Training, Karachi. Respondent No,3 Port Qasim Authority on 29-10-2008, advertised for the position of Secretary (BPS-18/19) in the Authority. The Petitioner applied in response to the advertisement. Thereafter letter dated 6-10-2008 was written by Port Qasim Authority to the Secretary, Ministry of Labour, Manpower and Overseas Pakistanis, requesting services of petitioner for the post of Secretary/Deputy Secretary (BPS-18/19) on deputation basis for a period of three years. This request was accepted by the Ministry and Notification dated 03-10-2008 was issued. Consequently, the petitioner joined as Deputy Secretary on deputation basis for three years and office order in this regard was issued by the Port Qasim Authority on 20-10-2008. Vide order dated 13-11-2008 Assistant Director (Admin) of Port Qasim Authority requested permission from Establishment Division for posting/ appointment of the Petitioner on permanent basis. Before anything further could be done, letter dated 1-1-2009 was issued by the Ministry of Ports and Shipping, repatriating the Petitioner to its parent department i.e, Ministry of Labour, Manpower and Overseas Pakistanis. Consequently, repatriation order of the petitioner was issued on 26-2-2009 by the Port Qasim Authority. When this letter was received by Ministry of Labour, Secretary Labour wrote to the Secretary Ports and Shipping taking the position that normally period of deputation from one department to another Government department is three to five years and therefore, once the Petitioner was sent on deputation to Port Qasim Authority the post on which he was employed was filled up and therefore, there was no vacancy where the Petitioner could be adjusted. It was therefore, requested that Petitioner be allowed to continue on deputation with the Port Qasim Authority. The petitioner also approached the Ministry for Ports and Shipping and consequently on 6-3-2009, it was ordered that he may be continued to be allowed on deputation for two years in Port Qasim Authority. Office Notification in this regard was issued on 17-3-2009. Consequently the Petitioner was posted as Instructor Training Centre of Port Qasim Authority. On 28-2-2009, one Muhammad Zameer Farooqi was appointed as Deputy Secretary in the Port Qasim Authority for two years on contract basis. The Petitioner being aggrieved by such appointment wrote various letters including those to the Chairman of the Port Qasim Authority. Finally on 28-9-2010, order for repatriation of the Petitioner was issued. When this order was issued again the Secretary, Ministry of Labour wrote to Secretary Ministry of Ports and Shipping and this time the plea taken was that the Petitioner had been appointed in Port Qasim Authority. The Petitioner with this petition has enclosed a letter dated 15-10-2010 written by a Joint.
2. Secretary in the Prime Minister Secretariat conveying desire of Port Qasim Authority that the Petitioner may not be relieved till decision of his permanent absorption is made. This Constitution Petition has been filed with the following prayers:--
(a) Declare the Office Order dated 28-9-2010 issued by the Respondent No,5 with the approval of the respondent No,3, as arbitrary, illegal, void ab initio, having been passed in colourable exercise of powers and thus has no legal effect and liable to be set aside.
(b) Declare the Notification dated 28-2-2009, issued by the Ministry of Ports and Shipping and subsequent appointment Order dated 5-3-2009 issued by the Respondent PQA for the appointment of respondent No,7, as Deputy Secretary (BPS-18) on two years contract basis, as illegal, arbitrary and has been passed in colourable exercise of powers and in violation of the dictum set forth by the honourable Supreme Court of Pakistan in Human Right Case No, 104 of 1992 (Abdul Jabber Memon v. Federation of Pakistan).
(c) Declare the Office Orders dated 6-7-2009 and 7-7-2009 as illegal, arbitrary and against the law and principles of natural justice.
(d) Direct the respondents Nos.3, 4 and 5 to decide the case of the Petitioner for his regular appointment in Port Qasim Authority as Secretary/Deputy Secretary (BPS-18/19) against the vacant post as already approved and NOC issued by the Cabinet Secretariat, Establishment Division, Government of Pakistan vide Establishment Division's U.O. No, 4/1/93-R(39), dated 13-11-2008.
(e) Direct the Respondents Nos.3, 4 and 5 to decide the case of fixation of pay and allowances of the Petitioner as increased by the Federal Government from the month of July, 2010 and release the same to the Petitioner with all arrears.
(f) Suspend the Operation of the Order dated 28-9-2010 issued by the respondent No,5, and direct the Respondents to restore the Official Vehicle No, GA- 4825, Suzuki Cultus Car, to the Petitioner, which was forcibly taken away under Order dated 29-9-2010 from the house of the Petitioner in his absence.
3. ' Notice was issued and Counter-affidavit and Comments were filed on behalf of Port Qasim Authority. The position taken by the Port Qasim Authority is that petitioner was an employer on deputation and he has been repatriated because the Port Qasim Authority does not require his services any more.
4. ' Earlier Constitution Petition No, 1469 of 2009 was filed by the Petitioner. This was against Notification dated 3-10-2010 whereby his period of deputation was altered from three years to two years and he submitted that this could not be done. When that petition came up for hearing on 26- 3-2010, it was pointed out to the petitioner that in terms of Judgment of the Supreme Court in the case of Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad and others 2010 SCMR 378 an employee on deputation has no right to continue as such petitioner sought time. Eventually that petition was dismissed for non-prosecution.
5. ' Petitioner who appeared in person submitted that now question regarding his permanent absorption is under consideration of the Prime Ministry, proprietary demands that the petitioner be allowed to continue on deputation in the Port Qasim Authority. The petitioner further submitted that Port Qasim Authority has repatriated him and Ministry of Labour is not prepared to accept him and petitioner being a family man has to feed his children and look after his family and if both the Ministry of Labour as well as Port Qasim Authority refuse to allow him to continue to work, which is the situation now, his family would be and in fact is facing starvation.
6. ' Mr. Sanaullah Noor Ghouri, learned counsel for the respondents 3 to 7 submitted that petitioner's earlier petition against deputation has already been dismissed for non-prosecution and therefore, this petition is not competent. He further submitted that Port Qasim Authority does not desire his services anymore. He stated that the petitioner has been relieved on 28-9-2010 and has no long on any job at Port Qasim Authority.
7. ' We have considered the submissions made by the petitioner as well as Learned Counsel for Port Qasim Authority.
8. ' Dr. Shafi-ur-Rehman's case (supra) is a very detailed judgment on the question of deputation.
9. Facts of the case were that petitioner who belonged to Office Management Group, was selected for deputation for a period of three years in Capital Development Authority for posting as Director Staff. He was relieved by Establishment Division and joined C.D.A. In February 2008. His deputation period was terminated by the borrowing agency vide Order dated 26-12-2008. He challenged such termination by filing a writ petition which was dismissed. Subsequently Civil Petition for Leave to Appeal was filed in Supreme Court. Regarding curtailment of period of deputation, the Supreme Court observed as under:--- "We may mention here that the deputationist by no stretch of imagination and in absence of any specific provision of law can ask to serve the total period of deputation and he can be repatriated being a deputationist by the Competent Authority in the interest of exigency of service as and when so desired and such order of the competent authority cannot be questioned. The Civil Servants Act, 1973 and rules made there under as well as ESTACODE are silent about the fact that a deputationist must serve his entire period of deputation and this omission seems deliberate enabling 'the Competent Authority to utilize the service of an employee in the manner as it may deem fit and proper. The period of deputation can at the best be equated to that of an expression of maximum period which can be curtailed or extended by the Competent Authority and no legal or vested rights whatsoever are available to a deputationist to serve his entire period of deputation in the borrowing Department. In this regard we are fortified by the dictum laid down in the following authorities:--- ' Zain Yar Khan v. Chief Engineer 1998 SCMR 2419, Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330, Pakistan v. Fazal-ur-Rehman PLD 1959 SC (Pak) 82, Sheikh Abdul Rahim's case PLC 1964 Leh. 376, Abdul Khaliq Anjum's case 1998 PLC (C.S.) 839, Government of Pakistan v. Prof. M. A. Sneed C.P. No, 427-L of 1991. Prof. M. Ashraf Khan Niazi v. Chairman Board of Governors, Allama lqbal Medical College 2003 PLC (C.S.).
10. 243.".
11. ' Regarding Maintainability of the petition i.e, whether deputation creates a legal right or not, it was stated by the Supreme Court in the following words:--- "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 be 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.
12. ' The question as to whether any valuable right whatsoever was accrued in favour of petitioner as deputationist not squarely falls within the jurisdictional domain of competent authority and may be agitated subject to all legal exceptions."
13. ' Lastly on the question of maintainability of the constitutional petition, it was observed as under:--- "We have also examined the controversy from another angle that as to whether .The Constitutional Petition was maintainable or otherwise? As mentioned hereinabove it is well-settled by now that a civil servant has no vested right to complete the deputation period and matter relating to the "terms and conditions of service, the Constitutional jurisdiction as conferred upon High Court under Article 199 of the Constitution of Islamic Republic of Pakistan cannot be invoked. In this regard reference can be made to the dictum laid down in the following cases:--- Pakistan v. Moazzam Hussain Khan and another PLD 1959 SC 13, PLD 1964 (W.P.) Lah. 376, Abdul Qayyum v. Nasrullah Khan Draishak and others 1975 SCMR 320, Ala-ud-Din Akhtar v. Government of Punjab and another 1982 CLC 515, Ch. Muhammad Bakhsh v. Government of Punjab PLD 1989 Lah.
14. 1754, Ayaaz Anjum v. Government of Punjab and others 1997 PLC (C.S.) 123, 1997 SCMR 169, Rafique Ahmad Chaudhry v. Ahmed Nawaz Malik and others 1997 PLC (C.S.) 124, 1997 SCMR 170 and Abdul Khaliq, Anjum v. Secretary Education 1998 PLC (C.S.) 839.
15. ' 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 titled Muhammad Rafique v. Secretary, Wafaqi Mohtasib's Secretariat, Islamabad and 2 others 1998 SCMR 2631."
16. Therefore, respectfully following the judgment of the Supreme Court in Dr. Shafi-ur-Rehman's case the petitioner is not an aggrieved person by termination of his deputation and is not entitled to maintain this constitutional petition.
17. ' The petitioner referred to letter dated 15-10-2010 whereby a Joint Secretary in Prime Minister Secretariat communicated to the Secretary Ministry of Ports and Shipping desiring that petitioner be not relieved till the decision of his permanent absorption is made. Who is to decide the question of permanent absorption? ESTACODE is very clear that for the purpose of absorbing a permanent employee three concurrent consents are required:---
(a) that of a lending department,
(b) that of a borrowing agency, and
(c) the civil servant concerned, ' Since Port Qasim Authority has clearly stated that it does not require services of petitioner the borrowing agency refuses to consent to absorption of the .Petitioner. The provisions regarding employees of Port Qasim Authority are contained in sections 50 and 51 of the Port Qasim Act, 1973.
18. The two sections are in the following words:---
50. Appointment of Officers, Servants, etc. The Authority may, from time to time, appoint such officers and servants as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit.
51. Recruitment Conditions of Service, etc. The Authority shall lay regulations made with the prior approval of the Federal Government, lay down the procedure for the appointment of its officers and servants, and the terms and conditions of their service including the constitution and management of provident fund for them, and shall be competent to take disciplinary action against them.
19. ' Section 5 subsection (2) of the Port Qasim Act, 1973 provides as under:---
(5) Management (1) ..............................................................
(2) The Board in discharging its function shall act on sound principles of port planning and development and port management and shall be guided on questions of policy by such direction as the Federal Government may, from time to time, give.
20. ' The above provision indicates that the Federal Government has discretion to issue directions to the Board of the Authority on matters of policy. No doubt power under section 70 has been provided to the Federal Government but it is in respect of "Acts and Proceedings of the Board". This power cannot be interpreted to mean the Federal Government has power of micro manage.
21. Question such as appointment of an employee or his posting on deputation and repatriation, should be left to the discretion of the management of the Authority, particularly, when the question involved is of a functional level employee and not a policy making level employee. After all the management of the Authority must be given power to manage the affairs of the Port and if the Government assume to itself the power of micro managing each and every aspect of the organization then the Board and all paraphernalia settled by the law is reduced to a mere a trapping on a piece of paper and not even worth the paper on which it is written.
22. Be that as it may, since a deputationist does not have a right to continue in the department in which he is deputed and it is also relevant to note that Port Qasim Authority does not have statutory rules in terms of dicta laid down by the Supreme Court in the case of Pakistan International Airlines Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676 that constitutional petition by an employee in absence of statutory rules is not maintainable, it is difficult to visualize that a constitutional petition for continuation on deputation basis or regular deputation of a person would be maintainable.
23. ' Ministry of Labour in its letter dated 22-3-2009 took the position that deputation is normally for three to five years and that it has filled up the vacancy. However, in its letter dated 11-10-2010 it has stated that petitioner was "selected" and "appointed" vide letter, dated 16-3-2009. Letter dated 16- 3-2009 is an office order issued by Director HRM of the Port Qasim Authority. It states as under:--- ' "In pursuance of Ministry of Ports and Shipping, Government of Pakistan Islamabad's Letter No,1(19)/2008- P&S-II dated 6-3-2009, Mr. Abdul Jabbar Memon, Deputy Secretary (BS-18) of Port Qasim Authority is appointed and posted against the vacant post of Instructor (BS-18) in Training Centre, under Administration Division with immediate effect. The officer is however, attached with the Chairman Secretariat in addition to his own duties as Coordinator.
24. ' Reference is made to letter dated 6-3-2009 (available at page 69 as Annexure-L) which letter merely conveyed approval for allowing Petitioner continued on deputation for ten years. Therefore, use of word "appointed" in letter, dated 16-3-2009 is merely use of a wrong word without any real intent behind it. It is more so because on 11-3-2009 Ministry of Labour itself stated that Petitioner was on deputation.
25. ' Result of the above discussion is that this constitutional petition as far as prayer clauses (a), (d),
(e) and (f) are concerned, is dismissed. As far as prayer clauses (b) and (c) are concerned, if the petitioner feels that the persons appointed or the persons posted, were appointed or posted in violation of law or without any authority of law he has the remedy of filing a petition in the nature of quo warranto against such appointment or such posting. Petitioner has been repatriated by the Port Qasim Authority to the Ministry of Labour and it is the duty of the Ministry of Labour to allow him to rejoin. Contention of the. Ministry of Labour that they have filled up the position is not material as his position did not become permanently vacant and depute can always be repatriated and therefore, it is obligation of the Ministry of Labour, Manpower and Overseas Pakistani to post and adjust the petitioner upon his repatriation.
26. ' This constitutional petition, subject to the above observations. Is dismissed in limine. Listed application is also disposed of.