1. ' NAEEM AKHTAR AFGHAN, J.--- Through this Constitutional Petition the petitioner has challenged the Notification dated 19-6-2009 issued by respondent No,1, whereby the services of the petitioner (deputationist) have been returned by respondent. No,1 (borrowing department) to C&W Department (Lending Department) with immediate effect and against the letter dated 20-6-2009 issued by respondent No,2, whereby it has been requested that the absorption case of Mr. Rasheed Tareen may not be entertained. The petitioner has claimed the following reliefs:---
(a) Declaring that the impugned Notification dated 19-6-2009 and letter dated 20-6-2009 issued by respondent No,1 respectively are illegal, in excess of authority, as well as without any lawful jurisdiction, as of no legal effect.
(b) Declaring that the petitioner's services have been absorbed on the recommendations of the respondent No,4 and on the basis whereof, the respondent No,4 being the competent authority has permanently absorbed the petitioner's services in the Workers Welfare Board Balochistan as Director Works (B-19) and the respondent No,1 is bound under the law to follow the orders of respondent No,4 by implementing the same in its letter and spirit.
(c) Declaring that the impugned Notification dated 19-6-2009 is based on mala fides on the part of respondent No,1 as well as at the instance of Provincial Minister concerned and the same is based on colourful exercise of authority and jurisdiction having no legal effect.
(d) After declaring the impugned Notification dated 19-6-2009 being illegal and without any lawful authority, the same may be declared being void, ab initio by directing the respondent No,1 to implement the lawful orders of the respondent No,4 by allowing the petitioner to serve the Workers Welfare Board Balochistan as Director Works (B-19).
(e) Pending disposal of the main petition, the operation of impugned Notification dated 19-6-2009 and subsequent letter dated 20-6-2009 respectively may be suspended. And the petitioner be allowed to continue his services as Director Works (B-19) Workers Welfare Board Balochistan.
(f) With any other relief which this Hqn'ble Court may found deeded fit and appropriate in the circumstances of the case may also be awarded with cost of the proceedings, in the interest of justice and equity. Facts of the case are that the petitioner was initially appointed as Assistant Engineer in C&W Department in the year 1985 through Balochistan Public Service Commission and was subsequently promoted as Executive Engineer BPS-I8 in the year 2008. During his service, in different years for different periods the services of the petitioner were transferred to Workers Welfare Board Balochistan (respondent No,1) on deputation basis, however, lien of petitioner in parent department was retained and the petitioner was not permanently absorbed in the Borrowing Department i,e, respondent No,
1. On 6-2-2007 a notification was issued by Government of Balochistan Services and General Administration Department, whereby the posting of petitioner Acting E.D.O. C&W Department was ordered to be read as Director Works in Workers Welfare Board, Labour and Man Power Department on deputation basis for period of one year against existing vacancy instead of his posting as Executive Engineer in the Workers Welfare Board Balochistan Quetta. In pursuance of Notification 6-2-2007 the petitioner on the very same day i,e, 6-2-2007 assumed the charge of the post of Director (Works), Workers Welfare Board Balochistan Quetta.
2. Subsequently, vide notification dated 3-3-2008 issued by respondent No,2, with the prior approval of the competent authority the deputation period of petitioner as Director (Works) Workers Welfare Board Balochistan was extended for further period of two years w,e,f, 7-2-2008 on usual terms and conditions. No further notification has been issued for extension of the deputation period of the petitioner. In the meanwhile, on 20-12-2008 respondent No,2 issued letter to the Lending Department i,e, Secretary C&W Balochistan Quetta requesting therein to get prior consent of respondent No,2 in case of any proposal with regard to transfer/shifting of petitioner from the Workers Welfare Board to avoid inconvenience with administrative affairs of the department. Prior to the issuance of letter dated 20-12-2008 by respondent No,2, on 6-12-2008 summary was approved by worthy Chief Minister Balochistan for transfer of petitioner to the Lending Department and on 15-12-2008 respondent No,2 moved summary to worthy Chief Minister Balochistan for review of -his decision the larger interest of province on the ground that the department is greatly indebted to petitioner's ebullient services and his transfer at this stage when most of the projects are in their crucial phases is likely to create a great void and will adversely affect the prospects of the development work of workers board. Similarly, vide letter dated 14-5-2009 respondent No,4 (Workers Welfare Fund Islamabad) also recommended that the services of petitioner may be absorbed on permanent basis with respondent No,1 (Workers Welfare Board Balochistan) in view of his excellent performance for timely completion of various development projects. On 25-5-2009 the Lending Department (C&W Department) issued letter to Secretary S&GAD Government of Balochistan expressing no objection to the permanent absorption of service of petitioner in Workers Welfare Board Balochistan. Vide letter dated 25-5-2009 respondent No,2, who is also Chairman of respondent No,1 agreed to the proposal of absorption of the petitioner in Workers Welfare Board Balochistan floated by Workers Welfare Fund Islamabad.
3. ' Subsequently, instead of issuance of Notification by respondent No,2 for permanent absorption of the petitioner in Workers Welfare Board impugned notification was issued on 19-6-2009 (prior to completion of deputation period of petitioner), whereby the services of petitioner were returned by the Borrowing Department i,e, Workers Welfare Board Balochistan to the Lending 'Department i,e, C&W Department and this notification was followed by letter dated 20-6-2009 issued by respondent No,2 (Secretary Labour Department, Government of Balochistan), whereby the case of absorption of the petitioner was requested not to be entertained.
4. ' On the other hand on same date i,e, 20-6-2009 S&GAD, Government of Balochistan, issued letter to the Workers Welfare Fund Islamabad, to convey approval of the competent authority for permanent absorption of the petitioner in Workers Welfare Board Balochistan.
5. ' In pursuance of above letter of S&GAD the Assistant Director, Workers Welfare Fund Islamabad issued letter dated 23-6-2009 stating therein that the services of petitioner has been taken on the strength of the Board against the same post i,e, (Director BPS-19) with immediate effect.
6. ' Vide letter dated 24-6-2009 Principal Secretary to Worthy Chief Minister Balochistan conveyed to Secretary S&GAD for withdrawal of the approval of the competent authority conveyed vide letter dated 20-6-2009 to the Workers Welfare Fund Islamabad, Ministry of Labour and Manpower Department, Government of Pakistan.
7. ' On 27-6-2009 S&GAD, Government of Balochistan, reviewed its earlier decision and regretted to grant approval for permanent absorption of the petitioner in Workers Welfare Board Balochistan.
8. The NOC dated 20-6-2009 was withdrawn ab initio.
9. ' On 27-6-2009 the Assistant Director Workers Welfare Fund Islamabad with reference to its earlier letter dated 23-6-2009 requested to follow the advice and to issue necessary notification accordingly.
10. ' The petitioner filed the instant constitutional petition on 29-6-2009, which was admitted for regular hearing on 2-7-2009 and the operation of the impugned order/notification dated 19-6- 2009 and 20-6-2009 was suspended till further orders and the petitioner was allowed to continue on the post (as deputationist).
11. ' The respondents Nos.1 and 2 contested, the petition by filing counter-affidavit agitating that under the relevant rules no provision exists for permanent absorption of government employees and further agitated that during different periods the petitioner remained on deputation with respondent No,1, but his lien remained intact with ' Lending Department Le. C&W, where he got all the benefits regarding seniority and promotion and it was agitated that the right of the petitioner to remain with respondent No,1 was only till 6-2-2010.
12. It was also agitated that respondent No,1 i,e, Workers Welfare Board Balochistan is an Autonomous Body and has no concern or connection with respondents Nos.3 and 4 (Workers Welfare =Fund Islamabad) for the purpose of appointments, posting, transfer, absorption and deputation of employees. It was categorically stated that the petitioner was never absorbed permanently in the Workers Welfare Board Balochistan and respondent No,4 Workers Welfare Fund Islamabad has no authority to recommend for absorption of the petitioner nor same is, binding upon respondent No,l.
13. ' The respondents - Nos.3 and 4 (Workers Welfare Fund Islamabad) filed para wise comments and while replying ground-B of petition it was stated by respondents Nos.3 and 4 that the petitioner has been permanently absorbed in the Workers Welfare Board Balochistan vide order dated 23-6-2009 as Director (Works) and further it was stated that Chairman of the Board being Chief Executive can appoint the employees only with the previous approval of the Governing Body of the Workers Welfare Fund.
14. ' Respondent No,5, the incumbent officer filed counter affidavit agitating therein that the tenure of petitioner as deputationist with respondent No,1 has been completed on 6-2-2010, where after the petitioner has no vested right to remain in the Workers Welfare Board Balochistan or to file the petition. It was further agitated that petitioner being Officer of Grade-18 belonging to another department is drawing benefits of Grade-19 in Workers Welfare Board Balochistan despite completion of his deputation tenure. It was further agitated that the petitioner is sitting in the Workers Welfare Board Balochistan after expiry of his deputation period i,e, 6-2-2010 in the garb of stay order of this court.
15. ' Mr. Muhammad Qahir. Shah, learned counsel for the petitioner argued that after issuance of N.O.C.
16. By the Lending Department and after initiating summary by respondent No,2 and in view of the recommendation of Workers Welfare Fund Islamabad, there was no occasion for respondents Nos.1 and 2 to refuse permanent absorption of the petitioner in the Borrowing Department and keeping in view the meritorious services of petitioner and his contribution as well as favourable recommendations, the respondent No,1 was bound to issue notification for permanent absorption of the petitioner with respondent No,l. He further argued that the impugned notification dated 19-6- 2009 is based on mala fide and same has been issued at the instance of 'concerned provincial minister and is colorful exercise of authority.
17. ' Mr. Kamran Murtaza, Advocate, appearing on behalf of respondent No,1 argued that recommendation or advice of respondent No,4 for permanent absorption of petitioner has no legal value as respondent No,1 (Workers Welfare Board Balochistan) and respondent No,4 (Workers Welfare Fund Islamabad) are two separate and distinct entities and the petitioner was not employee of respondent No,4 rather was a deputationist of respondent No,1. Learned counsel further argued, that it is the prerogative of the Borrowing Department to retain, absorb or return back the services of deputationist to the Lending Department. He further argued that no prejudice is caused to the petitioner by return of his services as his lien with the Lending Department is intact.
18. Learned counsel further argued that vide letter dated 27-6-2009, the S&GAD has already withdrawn the N.O.C. Dated 20-6-2009 for permanent absorption of the petitioner in Workers Welfare Board Balochistan. Learned counsel also referred Workers Welfare Fund Ordinance, 1971 and relevant provision of the Workers Welfare Fund (Employees Service) Rules, 1997 adopted by Workers Welfare Boards vide letter dated 29-7-1997.
19. ' Mr. Nasrullah Achakzai, learned Additional A.G. Also opposed the petition.
20. ' After hearing arguments of learned counsel for the parties, we have gone through the record of the case.
21. Before proceeding further it is to be observed that a deputationist is a government servant, who 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. Such a government servant continues to enjoy his status so long as he holds the new post in an officiating or temporary capacity but seizes to be regarded, as such, either on confirmation/absorption in the new post or on reversion to his substantive post.
22. ' When a person belonging to a particular 'service or cadre is transferred to another cadre or autonomous body the same amounts to deputation and terms and conditions of such civil servant had to be settled between the borrowing and lending authority. Tenure of Such appointment is also a term and condition of service as per Civil Servants Act, 1973 and when tenure is so fixed and notified it has to be honoured by both borrowing and lending authorities except in a special circumstance when the borrowing agency directs repatriation of a deputationist.
23. ' In the instant case vide notification dated 3-3-2008 the deputation period of petitioner was extended for a period of two years w,e,f, 7-2-2008, which was to expire on 6-2-2010, but in the meanwhile before expiry of the above term vide impugned notification dated 19-6-2009 the services of the petitioner being deputationist were returned by the Borrowing Department (respondent No,1) to the Lending Department i,e, G&W Department. There exists no further notification for extension of the deputation of the petitioner with respondent No,1 nor any notification has been issued by respondent No,1 for permanent absorption of the petitioner with Workers Welfare Board Balochistan. It has also come on record that the earlier NOC issued by the Lending Department expressing no objection for permanent absorption of the petitioner in the Borrowing Department has also been reviewed and withdrawn.
24. ' At this juncture it is to be noted here that Workers Welfare Fund is creation of an Ordinance called the Workers Welfare Fund Ordinance 1971 and Federal Government by Notification in the Official Gazette constitutes a Governing Body of the Fund for entrustment of the management and administration of the Fund and according to section 7 of the Ordinance of the 1971 the Governing Body shall consist of Secretary to the Government of Pakistan in the Ministry dealing with the matters relating to Labour Welfare, who shall be its Chairman and not more than 18 other members to be appointed by the Federal Government. Even, in case of absorption of deputationist to the Workers Welfare Fund under Rule 25(1)(iv) of the Workers Welfare Fund Employees Service Rules, 1997, recommendation of Selection Board or appropriate Selection Committee in accordance With rule 12 is mandatory.
25. ' On the other hand Workers Welfare Board is constituted under section 11-A of Workers Welfare Fund Ordinance, 1971 after allocation is made from the Fund and it, is a body corporate having perpetual succession and a common seal with power under section 11-A of the Workers Welfare Fund Ordinance, 1971 for the efficient management and administration of the money allocated from the Workers Welfare Fund and the projects or other measures financed by such money. Under section 11-A(2) the Board shall consist of a Chairman and not more than nine other members appointed by the Provincial Government, agency or, as the case may be, body corporate.
26. According to section 11-B(4) all decisions of the Board shall be expressed in terms of the opinion of the majority of the members of the board present in the meeting and in the event of equality of votes the Chairman shall have a second or casting vote.
27. ' The Workers Welfare Fund (Employees Service) Rules, 1997 have been adopted by the Workers Welfare Board vide letter dated 29-7-1997. Rule 12 and rule 25(1)(iv) are reproduced herein below:-- - ' Rule 12:- "12. Constitution of Selection Board and Selection Committee.- (1) There shall be constituted a Selection Board, headed by the Secretary, for the purpose of selection of person for appointment to posts in pay scale-19, and members of the Board shall be:
(i) Joint Secretary (Labour); and
(ii) Financial Advisor (Labour).
(2) There shall be constituted one or more Selection Committees, with approval of the Secretary, for the purpose of selection of persons for appointment to posts in pay scale-18 and below."
28. Rule 25:-
25. Conditions for absorption of deputationist to the Fund.--- (1) A person serving on deputation to the Fund may be appointed to an equivalent post or above if competent authority so desires, on regular basis subject to the following conditions, namely:- the person, serving on deputation, applies in writing for or gives his consent to such absorption;
(ii) his parent office agrees to such absorption;
(i) he possess the qualifications laid down for initial appointment to the post in Part-II of Appendix 2 to these rules;
(ii) he, in the opinion of the appointing authority, is suitable for such absorption and is recommended by the Selection Board or, as the case may be, by the appropriate Selection Committee constituted in accordance with rule 12;
(iii) for the purpose of absorption, he seeks retirement from his parent office, if he has completed the required service for retirement benefits, or, otherwise, fulfills such conditions as the competent authority may require to join the Fund; and
(iv) save as may otherwise be provided by rules, no benefit of his previous service shall be admissible for any purpose in the fund as a right."
29. ' In view of Rule 12 and Rule 25(1)(iv) of the adopted Workers Welfare Fund, (Employees Service)
30. Rules, 1997 the permanent absorption of the petitioner in Workers Welfare Board Balochistan cannot be made on the basis of recommendation of respondent No,4 dated 14-5-2009 or the advice or request of respondent No,4 dated 27-6-2009 nor the letter dated 25-5-2009 issued by respondent No,2 can be made the basis of permanent absorption of petitioner. The NOC issued by the Lending Department has already been withdrawn on 27-6- 2009. Similarly, the letter dated 23- 6-2009 issued by respondent No,4 stating that the services of the petitioner have been taken on the strength of Balochistan Workers Welfare Board against the same post with immediate effect has no legal value as the petitioner is not the employee of respondent No,4 rather the petitioner was deputationist with respondent No,1 and it is the prerogative of respondent No,1 to retain, revert or absorb the services of a deputationist. The letter dated 23-6-2009 issued by respondent No,4 further loses the significance in view of its second letter dated 27-6-2009, whereby with regard to letter dated 23-6-2009 it was requested by respondent No,4 to follow the advice and issue necessary notification with regard to permanent absorption of petitioner (meaning thereby that petitioner was not permanently absorbed). The, advice or request of respondent No,4 is not binding upon respondent No,1, which is a body corporate and is a separate entity from respondent No,4.
31. Respondent No,4 is not the competent authority nor has jurisdiction to issue letter dated 23-6-2009 (stating therein that services of the petitioner has been taken on the strength of Workers Welfare Board Balochistan) and letter dated 27-6-2009 (request to follow the advice and to issue necessary notification).
32. ' The fact remains that the Borrowing Department i,e, respondent No,1 has not issued any notification for permanent absorption of petitioner and has reverted/returned the services of the petitioner to the Lending Department on 19-6-2009 prior to completion of his extended period of deputation. Legally, according to rules 12 and 25(1)(iv) of the adopted rules of the Workers Welfare Fund (Employees Service) Rules, 1997 the petitioner can be absorbed in the Workers Welfare Board Balochistan on the recommendation of Selection Committee or Selection Board and not otherwise.
33. Further, according to Finance Act No,1 of 2008 amendment has been made in section 11-B(3) of the Workers Welfare Fund Ordinance, 1971, whereby the Chairman Workers Welfare Board being its Chief Executive (respondents Nos.1 and 2) may appoint a Secretary and such other staff on such terms and conditions as the Board may sanction with "prior approval of the Governing Body". The Board under section 11-A (2) shall consist of a Chairman and nine other members appointed by the provincial government and the governing body of the Fund under section 7 consist of Secretary, Government of Pakistan, Ministry of Labour Welfare Department and not more than 18 other members appointed by the Federal Government.
34. In view of the above Rules of 1997 and the amendment made in the Workers Welfare Fund Ordinance, 1971 the petitioner cannot be permanently absorbed on mere recommendations of respondents Nos.2 and 4 nor on the basis of NOC issued by Lending Department, which has subsequently been withdrawn. Since, the petitioner has not been validly recommended for permanent absorption in Workers Welfare Board Balochistan by Selection Committee or Selection Board in view of rules 12 and 25(1)(iv) of the adopted Workers Welfare Board (Employees Service)
35. Rules, 1997, hence the obliging parawise comments of respondents Nos.3 and 4 are of no avail to the petitioner and the ground agitated by the counsel for the petitioner that the return of the services of the petitioner to the Lending Department is. Mala fide and a colourful exercise of authority at the instance of Minister, loses weight.
36. ' The claim of the petitioner that he has been permanently absorbed in the Borrowing Department and his repatriation/return to the parent department is not valid, has no force as admittedly there is no recommendation of Selection Committee or Selection Board for permanent absorption of the petitioner. The petitioner in the above circumstances cannot claim permanent absorption in the Borrowing Department nor the petitioner has any vested right to continue on deputation as he has been repatriated vide notification impugned dated 19-6-2009 before completion of his deputation period and his lien with the Lending Department has not been terminated.
37. A deputationist through Constitutional Petition cannot claim permanent absorption in the Borrowing Department as it is the prerogative of the Borrowing Department to determine the tenure of deputation, to revert/ return back the deputationist or to absorb a deputationist permanently.
38. ' Petitioner being a Civil Servant cannot claim permanent absorption as a matter of right as the lien of the petitioner with Lending Department i,e, C&W Department is still intact, hence, by reversion to the Lending Department and due to refusal by the borrowing department for permanent absorption the petitioner cannot be termed as an aggrieved person. Reference in this regard is made to the case of Shahid Iqbal v. Government of Pakistan Islamabad 1995 PLC (C.S.) page 143 and Muhammad Siddique v. Secretary Establishment Division 2001 PLC (C.S.) 973.
39. It is further observed here that tenure of deputation or absorption of a deputationist are the terms and conditions of service as per Civil Servants Act, 1973 and matter relating to terms and conditions of service has to be adjudged by no other court except the administrative court or the tribunal created under Article 212 of the Constitution of Islamic Republic of Pakistan, which envisages that no other court would adjudicate in respect of matters to which jurisdiction of administrative court or tribunal extends. The petitioner is admittedly a civil servant and the point of determination in the instant petition was whether or not petitioner lawfully stood permanently absorbed in the borrowing department and this matter pertains to the terms and conditions of the service of the petitioner, therefore, Article 212 of the Constitution comes into play ousting jurisdiction of this court to entertain and adjudicate upon the matter while exercising powers under Article 199 of the Constitution of Islamic Republic of Pakistan.
40. ' Consequent, to the above discussion, the petition having no force is dismissed with no order as to cost.