' MUHAMMAD ATHER SAEED, J.---This petition for leave to appeal has been filed against the judgment of the learned Division Bench of the Islamabad High Court, Islamabad dated 27-6-2013 in Intra Court Appeal No,593 of 2013 whereby the learned Division Bench of Islamabad High Court had modified the judgment of the learned Single Judge of the Islamabad High Court dated 11-2-2013 in Writ Petition No,539 of 2012 whereby the learned Single Judge had remanded the case back to the authority to pass a speaking order ignoring the derogatory remarks in her personal evaluation reports. The modification made by the learned Division Bench was that the impugned notification dated 16-2-2012 was set aside and the present petitioner i.e, Senate Secretariat was directed to process the case of respondent for permanent absorption in the light of the directions given in the judgment of the learned Single Judge mentioned above by ignoring the derogatory remarks in her personal reports and taking into consideration the NOC issued by the parent department within a period of fortnight from the receipt of the judgment and further directed to allow the respondent to resume her duties from the date when she was refused permission to attend the office pursuant to the impugned notification dated 16-2-2012 and also directed the petitioners to pay her salaries.
This judgment of the learned Division Bench has been challenged by the present petitioners.
2. Brief facts of the case are that the respondent was serving in University of Balochistan, Quetta.
Vide notification dated 15-4-2008, her services were placed at the disposal of National Language Authority on deputation basis. Afterwards on requisition of her services by the Senate Secretariat, she was transferred to Senate Secretariat where she was appointed as Section Officer on deputation basis for a period of three years vide notification dated 24-1-2009. However, she was repatriated to her parent department on 12-8-2008. She filed representation in this regard before the present petitioner which was allowed as a result of which the period of deputation was extended till 24-8-2010 vide notification dated 8-9-2009. After such extension the present petitioner on the request of the respondent initiated the process of permanent absorption of the respondent in the Senate Secretariat and in this regard NOC was sought from the University of Balochistan, Quetta respondent's parent department which was accordingly granted. On the basis of this NOC the petitioner No,2 extended the period of deputation for one year vide notification dated 22-11-2010 but vide notification dated 16-2-2012 she was repatriated to National Language Authority despite issuance of NOC by the parent department. Aggrieved by this notification the respondent filed writ petition before the learned Islamabad High Court which was disposed of by the learned Single Judge vide his judgment cited above. However, the respondent being not satisfied with the judgment of the learned Single Judge filed Intra Court Appeal before the learned Division Bench which was disposed of by the impugned judgment. The present petitioners being aggrieved by this judgment have filed this petition for leave to appeal.
3. We have heard Syed Asghar Hussain Sabzwari, learned Advocate Supreme Court for the petitioners and respondent present in person.
4. After narrating the facts of the case the learned Advocate Supreme Court for the petitioners submitted that the settled law on the subject of absorption is that absorption/extension of period of deputation is not a vested right of the employee but the employer has the authority to repatriate the employee on deputation to his/her parent department after or before completion of her deputation period and therefore the learned forums below specially the learned Division Bench has fallen in error when it set aside the notification impugned in the writ petition and directed the present petitioners to process the case of the respondent for permanent absorption in the light of the directions contained in the judgment of the learned Single Judge. On this point, he relied on the following judgments of this Court and of the Islamabad High Court:-- ' Nazir Ahmed Rana v. Chairman, Board of Intermediate and Secondary Education and others (1998 SCMR 1172) Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad through Chairman and others (2010 SCMR 378) Contempt proceedings against Chief Secretary Sindh and others (2013 SCMR 1752) Asma Shaheen and 19 others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and 3 others (2013 PLC (C.S.) 391) Mst. Robia Ayub v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others (2013 PLC (C.S.) 915)
' On the basis of these judgment he argued that since absorption is not a vested right of the employee and the employer has authority to terminate the deputation at any time and repatriate the employee to the parent department therefore the respondent had no right to-file writ petition before the Islamabad High Court and the lower forums have erroneously allowed her petition and appeal. Coming to the factual aspects of the case the learned Advocate Supreme Court informed us that after receipt of NOC from the University of Balochistan the case of the respondent for permanent absorption was put before the Departmental Promotion Committee which vide the minutes of the meeting dated 9-2-2012, after reviewing her ACRs received from her parent department and finding the remarks therein of adverse nature and also examining the work and conduct of the officer during deputation in the Senate Secretariat which also remained unsatisfactory as per the observations and reports of the then Special Secretary who had been supervising her work, decided not to recommend her for permanent absorption and recommended that she be repatriated to National Language Authority, Islamabad` from where she came to the Senate Secretariat on deputation. When asked as to under what law the matter of absorption was placed before the Departmental Promotion Committee, learned Advocate Supreme Court referred to para 72 onward of note dated 27-1-2010 where it was proposed by the Secretary Senate that the absorption shall be made on the recommendations of the Departmental Promotion Committee and this was approved by the Chairman Senate and after that Departmental Promotion Committee was constituted to consider the cases of deputationists for permanent absorption. He submitted that only the cases of five officers were placed before the DPC who had recommended absorption of four officers except the respondent and recommended her repatriation to the parent department. He also submitted a list of 20 officers who were repatriated from Senate Secretariat since 2009, however, their DPC reports, if any, were not attached. He, therefore, prayed that impugned judgment being not sustainable may be set aside and the notification dated 16-2-2012 may be restored.
5. The respondent argued her case herself. She submitted that her absorption was refused because of the personal mala fide of one person i.e, Iftikharullah Babar who was initially serving as Special Secretary and then was promoted as Secretary of the Senate. She took us through the minutes of the meeting of the DPC held on 9-2-2012 in which her case along with Zahid Anwar Siddiqui was place before the DPC for permanent absorption, and pointed out that meeting was held under the Chairmanship of the said Iftikharullah Babar. She pointed out that despite the fact that NOC of Zahid Anwar Siddiqui was not received from his parent department the committee had recommended his permanent absorption but on the other hand the committee on the basis of the report of Special Secretary and her ACRs in the parent department did not recommend her for permanent absorption and instead it was recommended that she be sent back to her parent department. She said that Special Secretary who had reported about her work and conduct was the same Iftikharullah Babar who was then Secretary Senate and Chairman DPC and while sitting in the DPC considered his own report. She vehemently asserted that it was neither ethical nor morally correct for him to sit as chairman and consider his own report and he should have excused himself. She took us through her ACRs from parent department and her PERs from Senate Secretariat and pointed out that her first PER in Senate Secretariat was prepared by Raja Abdul Qayyum, Director (PR) and countersigned by Jan Muhammad Jamali, Deputy Chairman Senate and in this report she had received very good in eight out of nine columns and in the one column she had received good. Overall she was given very good remarks by the signing and the countersigning officer. She said, however, her PER for the period from 1-1-2010 to 31-12-2010 was prepared by Iftikharullah Babar who had marked her very good in two columns, good in six columns and average in one column and had given her adverse remarks. She said that this report was countersigned by then Secretary of the Senate Raja Muhammad Amin who had commended her performance which according to him was upto the mark and observed that various chairman of the committees had appreciated her work and also opined that she was better than majority of officers working on the committees side, However, he agreed with the remarks of the reporting officer to the extent that necessary training in the relevant fields would improve her skills enabling her to work in other sections. She submitted that bias and mala fide of Iftikharullah Babar was apparent from this PER and observations of the countersigning authority. As far as reports of parent department are concerned, she submitted that in most of the reports she had been recommended for promotion and in most of these reports she had been given good remarks except in 2003, 2004 and 2005 where her conduct of trying to gain knowledge was slightly criticized by the signing officers. The respondent submitted that she had been discriminated against as all the other officers including Haris Rehman who was selected to service on deputation much after her were recommended for permanent absorption and she was recommended to be repatriated. She submitted that Haris Rehman was appointed on deputation initially for three years from 21-1-2011 in Senate Secretariat. He was permanently absorbed vide notification dated 31-7-2013. She submitted that she had joined Senate Secretariat much before him but he had been absorbed much before the expiry of his deputation period which shows mala fide against her. She submitted that this is a case of mala fide and discrimination and it is settled law that on the basis of mala fide and discrimination writ jurisdiction can be invoked. In respect of her arguments she relied on the following judgments:-- Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others (PLD 2011 SC 22) Secretary Establishment, Government of Khyber Pakhtunkhwa and others (2013 SCMR 559) Abdul Samad and others v. Federation of Pakistan and others (2002 SCMR 71) Engineer Naraindas and another v. Federation of Pakistan and others (2002 SCMR 82) Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 SCMR 1034) The Managing Director, Sui Southern Gas Co. Ltd. and others v. Saleem Mustafa Shaikh and others (PLD 2001 SC 176) Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others (PLD 2012 SC 923) Nazar Elahi v. Government of Punjab and others (2013 CLC 1457)
6. We have examined the case in the light of the arguments of the learned Advocate Supreme Court for the petitioners and the respondent, and have perused the records of the case including the impugned judgment, judgment of the learned Single Judge and other documents.
7. There can be no cavil to the proposition solicited by the learned Advocate Supreme Court for the petitioner that absorption is not a vested right of the employee and the employer has the right and authority to terminate the deputation period or repatriate the employee back to his/her parent department and the judgments relied on by the learned Advocate Supreme Court support his contention and, therefore, on the basis of these judgments the appeal may have been allowed.
However, when we examine the facts of the case we see that the respondents has built up the case of mala fide exercised by the petitioner and the discriminatory treatment meted out to her. She has also submitted that once the petitioner has sought NOC for her absorption from the parent department i.e, University of Balochistan, it means that she was being considered for absorption and she had the right to be dealt with fairly and judiciously. In the process of her absorptien she was entitled to be treated at par with similarly placed employees. In our view this contention of the respondent has a lot of force and is strengthened when we review the documents on record.
8. We have first reviewed the ACRs of the respondent issued by her parent department i.e, University of Balochistan for the years 2000-2008. According to the minutes of the DPC ACRs for the years 2003, 2004, 2005 are of adverse nature. We have seen that in these ACRs of three years she was also recommended for promotion. We have also seen the remarks of the reporting officer and the countersigning officers. In our view these remarks apparently reflect that the respondent was in habit of expressing her opinion to the discomfort of her superiors. In most cases these remarks will not be considered to be adverse remarks, however, the reports are reasonably good including one very good report. Now we move to the reports of the Special Secretary who in his report has written that the respondent has *failed to demonstrate efficiency in her official work. She has no understanding of the rules of business and official procedures and is also indecisive. This PER was countersigned by the then Secretary of the Senate who in his remarks has observed that her performance was upto the mark and she was better than most of the officers working on the committee side.
9. We while pursuing the records of the case have seen that many eminent Senators including the then Deputy Chairman Senate Jan Muhammad Jamali and Chairmen of various Standing Committees have issued her certificates in which they have commended her work in the committees in which she was secretary and had considered her to be a true professional. But neither the Special Secretary nor the DPC has considered these certificates or the remarks of the countersigning officer. Even otherwise we are of the view that ethically speaking the Chairman of the DPC Iftikharullah Babar who was Special Secretary who prepared the report detrimental to the respondent should have excused himself to sit in the DPC when the case of the respondent was being considered and by sitting in the meeting and chairing it on this occasion, he has rendered the recommendation of the Committee illegal. We have also seen that the case of Zahid Anwar Siddiqui was taken up by the DPC without NOC received from his parent Department and the case of Haris Rehman was taken up within less than two years of his deputation period i.e, during the validity of his deputation period. We, therefore, tend to agree with the respondent that she was discriminated against because some time or other she may have been offended Iftikharullah Babar who apparently wanted his pound of flesh. During the tenure and secretaryship of Raja Muhammad Amin apparently a tentative decision was made to absorb respondent in Senate Secretariat and the petitioners had requested for NOC from parent department and same had been received. Although it may be a tentative decision but we are of the view that this tentative decision was not changed on the basis of deficiency or short coming of the respondent but due to personal whims and fancies of Iftikharullah Babar. We are, therefore, of the view that impugned notification has been issued without any cogent and valid reasons but on the basis of personal bias, mala fide and discrimination which cannot be sustained and hence has rightly been set aside by the impugned judgment.
10. We have also been informed by the learned Advocate Supreme Court for the petitioner that the Chairman, Senate vide his very recent order has rejected the plea of the respondent for absorption.
This order was passed on, the basis of the judgment of the learned Single Judge but was passed after a very long time when the judgment of the learned single Judge was not in field and the learned Division Bench had set aside the impugned notification and, therefore, this order has no legal effect and is declared to be without any force of law.
11. We are of the considered opinion that the impugned judgment has been passed correctly on the basis of the facts of the case and is unexceptionable and no interference is called from this Court.
12. We had, therefore, vide our short order dated 7-11-2013 had dismissed the petition in the Court after hearing the parties and reiterated that the directions given in the impugned judgment of the learned Division Bench of the High Court shall be implemented in accordance with its terms.
13. The above are the reasons in support of our short order.