1. ' SHAHID ANWAR BAJWA J.--- Respondent No,3 was an employee of Parks and Horticulture Authority Lahore in a grade equivalent to PG-9 grade of respondent No,2. On 28-9-2001, General Manager of Civil Aviation Authority wrote a letter to the Ministry of Defence requesting approval by the Secretary/Chairman, Civil Aviation Authority Board for taking services of respondent No,3 on deputation basis for a period of three years. It was also stated that there was no post of PG-9 in Horticulture trade and therefore, Civil Aviation Authority has approved creation of a post temporarily for a period of one year. The Chairman Civil Aviation Authority vide letter dated 18-10- 2001 after referring to letter dated 28-9-2001 conveyed approval for acquiring services of respondent No,3 in Civil Aviation Authority in PG-10 on deputation basis for a period of three years.
2. Consequently, respondent No,3 was taken on deputation. Thereafter on 22-10-2004 letter was issued to the respondent No,3 whereby he was informed that he has been absorbed as General Manager. In PG-10 with effect from 25-10-2004. This Constitution Petition has been filed with the following prayers:--
(A) appointment of the respondent No,3 as General Manager (Horticulture) in Pay Group No,10 is illegal, uncalled for, void and non-existent in the eye of law and may further be pleased to set aside the said absorption and appointment and declare the post as vacant.
(B) Petitioner was/is qualified to be posted/promoted and/or considered for posting/promotion as General Manager (Horticulture) in Pay Group-10.
3. ' Learned Counsel for the petitioner straightaway stated that he is not pressing prayer clause (B) and is only concerned with prayer clause (A). Learned Counsel for the petitioner made the following submissions:--
(1) Although request was made to the Chairman Civil Aviation Authority Board vide letter dated 28- 9-2001 for taking the petitioner on deputation in PG-9, however, when approval was conveyed though it referred to letter dated 28-9-2009 but it had approved his deputation in PG-10.
(2) Under the Rules of Civil Aviation Authority (Learned Counsel referred to Rule 3.30), a person can be taken on deputation only in the grade in which he is already working and not in a grade higher than the grade in which he is working at the time when he was taken on deputation. Respondent No,3 was working equivalent to PG-9 and therefore, in any case, he could not have been taken in PG-10. In this regard Learned Counsel referred to Rule 3.30, relevant portion whereof is reproduced as under:-- "3.30 Subject to Regulation 3.29(d), Defence/Federal/Provincial Government servants may be taken on deputation to CAA in specialized areas in PG-7 and above. They are to be appointed in CAA Pay Groups equivalent to their pay grades only. Such officers may, if found suitable, be absorbed in the Authority in the same Pay Groups as regular employees in the exigency of service when no suitable CAA Officer is available to fill the posts. Such absorption shall be subject to the consent of the officer concerned and his parent Department/Organization. Seniority of such officers for the purposes of promotion etc. Shall count from the date of absorption in the Authority".
(3) Under the Rules of the Authority in Horticulture Department there are qualifications which are prescribed for PG-7, PG-8 and PG-9. There is no position shown in the Rules in Horticulture Department in PG-10 and there are also no qualifications prescribed for such a post without prescribing the qualifications it was not available to the respondent No,2 to take a person in that grade. There is no other post in Civil Aviation Authority without prescribed qualifications except the post on which respondent No,3 was absorbed.
(4) Qualification for PG-7, PG-8 and PG-9 is at least a graduate in second division in Agriculture whereas, the respondent No,3 has qualification of M.Sc. Botany. If the respondent No,3 is not qualified for PG-7, PG-8 or PG-9 how could he be qualified for PG-10.
(5) No post in PG-10 has ever been created and yet the respondent No,3 taken on that post.
(6) In Rule 3:30 only Defence /Federal/Provincial Government Servants can be taken on deputation.
4. Respondent No,3 was not an employee of any of the Governments, he was employee of Parks and Horticulture Authority, which is a corporate body created under a statute. Therefore, in any case respondent No,3 could not be taken on deputation even.
5. ' Learned Counsel for the respondents Nos.2 and 3 referred to section 4 of the Civil Aviation Authority Ordinance, 1982 and submitted that the approval by the Secretary Defence constituted a directive in terms of section 4 of the Ordinance. The said section is in the following words:-- "4. Power of the Federal Government to issue directives.--- The Federal Government may, as and when it considers necessary, issue directives to the Authority on matters of policy, and .Such directives shall be binding on the Authority, and if a question arises whether any matter is a matter of policy or not, the decision of the Federal Government shall be final".
6. ' Regarding creation of post in PG-10, learned Counsel referred to Minutes of the Meeting of Civil Aviation Authority Board held on 24-8-2004 wherein, approval for the creation of post of General Manager, Horticulture was granted by the Board. Since Punjab Horticulture Authority has been established by the Punjab Government and since Chief Minister of Punjab is Chairman of the Punjab Horticulture Authority, notwithstanding its having been established by a statute employees of Punjab Horticulture Authority are employees of the Provincial Government. No prayer clause has been made against deputation of the respondent No,3. Respondent No,3 has been working for six years and now it would not be possible to repatriate him to his parent department.
7. ' Ch. Muhammad Ashraf Khan while exercising his right of reply submitted that even in the letter of absorption challenged in this petition it was stated that respondent No,3 would have to tender his resignation from Punjab Horticulture Authority and this resignation he tendered on 24-9-2006 or thereabout.
8. ' We have considered the submissions made by the learned counsel and also have gone through the record.
9. ' When this petition was initially heard, it was deemed appropriate that Parks and Horticulture Authority, Lahore be also impleaded as a party. Consequently, notice was ordered to Parks Horticulture Authority. Initially the notice was returned by the District and Sessions Judge, Lahore with the remarks that the notice was received there after the date of hearing. Consequently, vide order dated. 14-10-2010, it was ordered that notice be served on respondent No,4 through registered post as well as through Courier. Learned Counsel for the petitioner placed on record the Courier receipt as well as delivery confirmation which showed that notice was received on 25-10- 2010 at the office of respondent No,4. No one was present for respondent No,4 and therefore, the matter was heard ex parte against respondent No,4.
10. Rule 3.30 has been quoted above. Under the Rule it is only persons employed by Defence Organizations, Federal or Provincial Governments which can be taken on deputation in the Civil Aviation Authority (CAA). Respondent No,3 was an employee of Parks and Horticulture Authority, which is a statutory Authority created by an Act of Provincial Assembly and is a separate corporate entity. Once a corporation is created, whether by a statute or in accordance with the provisions contained in a statute, such as incorporation of a Company under the Companies Ordinance, 1984 or registration of a trade union under the Industrial Relation Ordinance, 1969, such created entity becomes and acquires a distinct and separate personality, its legal status as a person is distinct and separate from its creators or its shareholders. Therefore, mere fact that Parks and Horticulture Authority is created by an Act of Provincial Assembly cannot lead to the conclusion that employees of Parks and Horticulture Authority are employees of the Provincial Government. Had it been so, there would not have been a separate provision made in Article 63 of the Constitution for persons employed by organization owned or controlled by a government and even the late lamented section 2-A of the Service Tribunals Act would have been superfluous and redundant because if persons in organization created by a statute etc. Are employees of the appropriate government C then such persons would been ipso facto civil servants. Therefore, contention of Ch. Muhammad Ashraf Khan that respondent No,3 being an employee of Parks and Horticulture Authority, and therefore not an employee of Provincial Government could not have been taken on deputation, appears to be correct and therefore, under the law the respondent No,3 could not have been taken on deputation by the Civil Aviation Authority. However, after having been taken on deputation respondent No,3 was absorbed by the Civil Aviation Authority and therefore, question of validity and legality of deputation has become merely academic by now by force of subsequent event of absorption.
11. ' Ch. Muhammad Ashraf Khan is also correct in relying upon rule 3.30 for his contention that even if respondent No,3 could have been taken on deputation by the Civil Aviation Authority he could have only been taken in PG-9 and not in PG-10 because under Rule 3.30 it is mandated that employee shall be taken on deputation in the pay grade in which he was serving in his parent organization and not in a higher pay grade. It is quite intriguing that in letter dated 28-9-2001 the General Manager Personnel of Civil Aviation Authority requested for his deputation in PG-9 and the Chairman Civil Aviation Authority/Secretary Defence while approving it, though he referred to letter dated 28-9-2001 and though there was no request for taking the respondent No,3 in PG- 10, approved his taking in PG-10, for a period of three years. It is also note worthy that letter dated 28- 9-2001 requested for deputation for a period of one year. Therefore, without any request by the functionaries of the borrowing department, who it must be presumed were more familiar with the need of the organization, the Chairman Civil Aviation Authority approved that respondent No,3 be taken on deputation for three years (instead of one year) and in PG-10 though the request was for PG-9 and though the Rules mandated that he should have been taken if at all could be taken in`PG-9. It is not for this court to discern the creaking sound of the wheels turning behind the decisions made by the Chairman. In any case, as the saying goes ways of Gods are strange. And so are the ways, at times, of powers that be. Therefore, in any case, the respondent No,3 could not have been taken on deputation in PG-10. However, as observed above, since the respondent No,3 we consequently, absorbed, the question of deputation and validity thereof has become merely academic by now.
12. Vide letter dated 22-10-2004, respondent No,3 was absorbed in PG-10 in the Civil Aviation Authority.
13. Ground of attack on such absorption by the petitioner are three-fold. His first ground was that petitioner held qualification of M.Sc. (Botany). Qualification prescribed for PG-7, PG-8 and PG-9 in.
14. Horticulture Department is B.Sc. Agriculture (We shall return later to the question of non- prescription of any qualification for PG-10). Contention of the learned counsel for the petitioner was that since graduation in Agriculture was qualification for PG-7, PG-8 and PG-9, it must be presumed to be qualification for PG-10. Reply given by the respondent was that Botany is the mother discipline and Agriculture is one, of its branches, therefore, one who is M.Sc. (Botany) is ipso facto qualified in Agriculture also. Although it is difficult for us to subscribe to the contention of the learned counsel for respondent No,2 in this regard. After all, Physics is the mother discipline of all Engineering, Chemistry is the mother discipline of all Pharmaceutical Sciences and Economics is the mother discipline of Business Management, particularly, marketing. It cannot be argued that an M.Sc. Physics is an Engineer, and M.Sc. Chemistry is a Pharmacist and M.Sc. Economics is equivalent to M.B.A. Having said that, it is of course for the departmental authorities to determine whether M.Sc. (Botany) meets the requirement and can be treated as equivalent to B.Sc. Or M.Sc. In Agriculture. There has not been any material placed or record, for or against such proposition and therefore, we cannot decide sitting in Constitutional jurisdiction whether the two qualifications can or cannot be treated as equal. We must also however, hasten to add that on the record available for us, there is no determination by any departmental authority that the two degrees can be treated equivalent qualifications for the position.
15. ' Second contention of Ch. Muhammad Ashraf Khan was that position in PG-10 was never created and therefore, the petitioner could not be absorbed-in a position in PG-10. Reply to this contention was given by the learned Counsel for Civil Aviation Authority by referring to Minutes of a Meeting of Board of Civil Aviation Authority held on 24-8-2004. Under Agenda Item No,12(b) there is approval for the post of General Manager Horticulture PG-10 on permanent basis. Therefore, contention of Ch. Muhammad Ashraf Khan that post of PG-10 was never created on a permanent basis does not appear to be correct, particularly because absorption of the respondent No,3 took place vide Letter dated 22-10-2004.
16. The third ground of attack of Ch. Muhammad Ashraf Khan was that under Rules of the Authority for every post, there is a prescribed qualification and in the Horticulture Department there are posts in PG-7, PG-8 and PG-9 and there are prescribed qualifications for each of them. The only post created in the organization is the post on which the respondent No,3 was absorbed and no qualifications have been prescribed here. Contention of Ch. Muhammad Ashraf Khan is not without force. The respondent-Authority has not placed on record any material whatsoever to substantiate as to why one exception has been made from the previous established position of the organization that where there is a post, there is prescribed qualification as well as method of induction.
17. Therefore, the action of creation of the post in the set of circumstances and the way in which it has been created does not appear to be in accordance with the law, and therefore, absorption of the respondent No,3 is without lawful authority and of no effect.
18. ' Mr. Ainuddin Khan, learned Counsel for respondents Nos.2. And 3 referred to section 4 of the Civil Aviation Authority Ordinance, 1982 which section (quoted above) states that Federal Government can issue directive to the Authority on a matter of policy and such directives shall be binding on the Authority. It is also provided that question whether a particular matter is matter of policy or not shall be exclusively for the Federal Government to decide. Contention of Mr. Ainuddin Khan does not appear to be sound and that is so for the reasons. Firstly, it is difficult to subscribe that one particular individual may be absorbed can be treated as a question of policy. If absorption of one person is a question of policy it will be difficult to decide as to what cannot be question of policy.
19. Secondly, approval for induction of respondent No,3 on deputation has granted not by the Federation Government but by the Chairman Civil Aviation Authority who is also Secretary Defence but he granted the approval not as Secretary Defence but as Chairman Civil Aviation Authority. It may be pointed out that under the Rules of the organization (Rule 3.28) for the position in PG-7 to PG-10, Director-General is the appointing authority. Thirdly, and more importantly, decision for creation of the post and absorption thereon was taken not by the Federal Government and not even by the Chairman Civil Aviation Authority. It was taken by the Board and therefore, cannot in any way be treated as having been taken as a direction by the Federal Government.
20. ' Lastly, Mr. Ainuddin Khan contended that respondent No,3 has been working for six years and therefore, now it would not be possible to repatriate him to his parent department. It was for this reason that notice was ordered to be issued to Parks Horticulture Authority, Lahore.
21. ' In exercise of Constitutional jurisdiction this Court would not like to place any person in an impossible situation, particularly, when the departmental authorities have been more culpable in violating the law then the hapless employee himself. We therefore, hold that absorption of the petitioner in PG-10 is without lawful authority and of no legal affect and direct that he be repatriated back to Parks and Horticulture Authority. Till such time he is accepted by Parks and Horticulture Authority and other inter departmental problems are sorted out, respondent No,2 shall continue to remunerate the respondent No,3 in PG-9. We expect. Parks and Horticulture Authority to accept the petitioner in its fold within a period of three months. Difference of pay and benefits between PG-9 and PG-10 paid to the respondent No,3 on the year may not be recovered from him.
22. ' This constitutional petition is disposed of in the above terms.