YAR MUHAMMAD, J.--- This writ petition under Article 71 of the Gilgit-Baltistan Empowerment and Self Governance Order, 2009 has been directed impugning Notification vide No,SO(S)-1-2(39)/2013 dated 25-4-2014 issued by respondent-1 whereby he on the basis of recommendation made by respondent-3 has cancelled the absorption of the petitioner from the post of Inspector (BS-16) of ASF Islamabad as A Deputy Superintendent of Police (BS-17) in Police Department, Gilgit Baltistan and has directed for his repatriation as Inspector (BS-16) in Aviation Wing, Ministry of Defence,.
Rawalpindi and have prayed for setting aside the impugned notification by seeking writ of mandamus to act upon the directives dated 31-5-2014 issued by Chief Minister Gilgit Baltistan vide Notification No,C.M,Sectt.1(04)/2012 dated 31-5-2014.
2. The facts in the small compass giving rise to the petition are that petitioner Babar Khan was employee in ASF and was holding the position of Inspector (BS-16) when on 24-2-2009 the Minster of Kashmir Affairs and Northern Areas in his capacity as Chairman Northern Areas after obtaining
(NOC) from both the lending and borrowing departments and in exercise of his powers conferred upon him, approved the deputation of the petitioner in Northern Area Police Department as Deputy Superintendent of Police for a period of three years on standard terms and conditions with clarification that the services of the petitioner shall be utilized as Public Relation Officer (PRO) to the Minister for Kashmir Affairs and Northern Areas/Chairman Northern Areas. Subsequently on 4-4- 2009 the CPO Gilgit adjusted the petitioner against a clear vacant post of DSP for the purpose of drawal of pay w,e,f, '1-4-2009. In the light of above notification the petitioner accordingly on 30-3- 2009 assumed the charge of the post of DSP and continued his duties as Public Relation Officer to' the Minister for KA and NA, Islamabad.
3. On 20-11-2009 through Notification No,SO(S)-1-2(7)/2006 dated 20-11-2009 the Acting Governor Gilgit-Baltistan as competent authority was pleased to adjust the petitioner against the post of DSP in Police department G.B. In relaxation- of the recruitment rules and directed to assign the seniority at the bottom most, against the post of DSP in the police department. During the course when the case of the petitioner was being processed for his direct induction in the post of DSP, five Inspectors from Police department Gilgit-Baltistan being aggrieved by the deputation order of the petitioner and the measures, were taking by the High-ups of Gilgit-Baltistan Government for the absorption of the petitioner as DSP, filed Writ Petition No,42/2009 in this court in which they challenged the Notification dated 24-2-2009 vide which the petitioner was transferred to G.B. Police as DSP for 'three years on deputation terming the deputation order was against the existing rules in which almost the present respondents and the petitioner were made party as respondents. The said writ petition besides others was seriously contested by IGP Gilgit-Baltistan who while defending the, deputation and absorption orders of the petitioner as DSP filed parawise comments wherein he took the stand and contended that the post of DSPs (BS-17) was to be filled in 50% by initial appointment and 50% by promotion of departmental candidates (IPs). He further contended that the present petitioner was adjusted against a clear vacancy (in direct quota) in. ARP Gilgit for the purpose of drawing of pay. Anyhow, while filing the parawise comments the IGP made his all possible efforts for absorbing the petitioner as DSP in Police department, Gilgit-Baltistan. With his adjustment as DSP on permanent basis, the petitioner was relieved from ASF Islamabad on 9-2- 2010 and thereby his all sort of connections with ASF Islamabad Airport stand disconnected that also without affording any lien. The petitioner was then posted in FIA Islamabad on deputation from Gilgit-Baltistan Police but same was challenged by the permanent officials of FIA Islamabad before, Islamabad High' Court. The Islamabad High Court while deciding the writ petition ordered the petitioner and other deputees from other parts of the Country be repatriated to their parent departments vide notification dated 1-6-2012 issued by the Ministry of Interior, Islamabad.
Consequently, the petitioner was sent back to police department, Gilgit. The petitioner was peacefully performing his duties as DSP in police department that on 25-4-2014 the respondent-1 issued the impugned notification cancelling the absorption order of the petitioner as DSP in. Police department G.B. And directed for his repatriation to his parent department i,e, Aviation Wing Islamabad. B The impugned Notification is reproduced for convenience as under:-- ' GOVERNMENT OF GILGIT-BALTISTAN THE DEPARTMENT OF SERVICES AND GENERAL ADMINISTRATION GILGIT-BALTISTAN SECRETARIATE 'GILGIT ' Dated the 25th April, 2014.
' NOTIFICATION ' No,SO(S)-1-2(39)/2013. Whereas, Mr. Babar Khan, Inspector (BPS-16) of Aviation Wing, Ministry of Defence was posted to Police Department Gilgit-Baltistan on deputation basis without following rules/regulations vide KA and NA Division, Islamabad Notification No, Dy.243/NA-III/CS/2007 dated 24-2-2009
(2) Whereas, on 20th November, 2009 the said Inspector (BPS-16) was adjusted in Police Department Gilgit-Baltistan without following all codal formalities and rules in vogue and against the judgment of the Hon'ble Supreme Court of Pakistan.
(3) Whereas, under the Hon'ble Islamabad High Court judgment dated 30-5-2012, Mr. Babar Khan Inspector (BS-16) was repatriated back to his parent Department vide Ministry of Interior, Islamabad Notification No,14/26/2011-ICT dated 1-6-2012.
(4) Whereas, Mr. Babar Khan Inspector-BS-16 has illegally been sent on deputation to FIA and retained the seniority in Police Department GB.
(5) Whereas, the Police Department has conveyed the following irregularities;
(i) In the Aviation Wing, Ministry of Defence Mr. Babar Khan was in BPS-16.
(ii) His posting on deputation to GB Police against the post of DSP (BPS-17) was illegal.
(iii) The officer has been allowed BPS-17 without proper promotion through DPC which is against the Appointment, Promotion and Transfer Rules, 1973. Rule *-A(sic) of the said Rules provides that "No Promotion on regular basis shall be made to posts in BPS-17 and above, unless the officer has completed such length of service, attended such training and passed such departmental examinations."
(iv) The following training Courses are mandatory in the police department GB for promotion to higher posts as prescribed in Chapter-13 of Police Rules 1934
(a) Inter Class Course/Probation Course of Six months duration.
(b) Upper Class Course of six Months duration.
(c) Advance Course.
(6) Whereas, the Police Department GB has never given any NOC for Deputation or absorption of Mr. Babar Khan BS-16.
(7) And whereas, after thorough examination the absorption, deputation and adjustment of an officer of BS-16 against a post of BS-17 has been found to be irregular.
(8) Now, therefore, on the' recommendation of Inspector General of Police, Gilgit-Baltistan vide No,IGP-1(50)/3424/2013 dated 13th May, 2013 the competent authority has been pleased to cancel the absorption of Mr. Babar Khan Inspector, BS-16 of Aviation Wing Islamabad in Police Department, Gilgit-Baltistan in BS-17, as well as deputation in FIA is also withdrawn as both orders are null and void ab-initio.
(9) Mr. Babar Khan, BS-16 is hereby repatriated as Inspector (BS-16) in Aviation Ministry of Defence, Rawalpindi, with immediate effect.
(10) The Competent' Authority has further been pleased to order an Inquiry against the illegal absorption and deputation as well as ordered the recovery of excess pay drawn while the officer was in BS-16. ' xxxxxxxxxxx ' DEPUTY SECRETARY (SERVICES)
05811-920220 Distribution:
1. The PS to DG FIA (with the request to relieve the officer).
2. The PS to DG, Aviation Wing, Ministry of Defence, Rawalpindi. (with the request to accept his repatriation).
3. The Inspector General of Police, Gilgit-Baltistan (with the request to strike off his name from seniority list)
' The Deputy Secretary (I and C) to the Chief Secretary, GilgitBaltistan, Gilgit.
5. The A.G., Office, Gilgit-Baltistan, Gilgit.
6. The PA to the Secretary Services, Gilgit-Baltistan, Gilgit.
7. Office File.
8. Officer Concerned.
5.- Being aggrieved and dissatisfied with the impugned notification, the petitioner preferred an appeal to the Chief Minister Gilgit-Baltistan which was heard and finally decided in the affirmative and accordingly Notification No . CM . Sectt. 1(04)/2012 dated 31-5-2014 was issued vide which he set aside the impugned notification but still the respondents did not recall the impugned notification, hence this petition seeking writ of mandamus to get compliance of the notification dated 31-5-2014 issued by Chief Minister Secretariat Gilgit-Baltistan.
6.
We have heard M/S Amjad Hussain, Malik Kifayat-ur-Rahman and Orangzaib Khan advocates for the petitioner and Mr. Mehmood Afandi, A.A.-G. For the respondents at length. We have also gone through the record and the relevant law with their able assistance.
7. The learned counsel of the petitioner while advancing arguments submitted that the petitioner was a permanent employee as Inspector (BS-16) in ASF controlled by Ministry of Defence and was leading a happy life that the Ministry of Kashmir Affairs and Northern Areas, Islamabad borrowed his services on deputation basis. NOC was also granted by his department and ultimately he was adjusted against the post of DSP in police department and since then he is discharging his duties, to the entire satisfaction of his seniors. They argued that after adjustment of the petitioner against the post of DSP, some Inspectors from Police Department G.B. Filed Writ Petition No,42/2009 in this Court seeking cancellation the deputation/adjustment order of the petitioner as DSP which was contested by the respondents resultantly the writ petition was dismissed vide judgment dated 12- 4-2011 passed by a Division Bench of this Court holding the absorption of the petitioner as DSP was made in accordance with rules that also under 50% direct quota but after lapse of years the respondent-1 on the recommendation of respondent-4 issued the impugned notification cancelling the absorption order of the petitioner as DSP which being without notice is illegal as such liable to be set aside. The learned counsel pointed out that the parent department of the petitioner has relieved him completely disconnecting him from the department and has also forsaken lien in ASF. It was argued that on filing appeal against the impugned notification the Chief Minister G.B. Although has set aside the notification even then the respondent did not recall the notification therefore, writ of mandamus for compliance of the order of Chief Minister is required to be issued.
8. Mr. Mehmood Afandi the learned. A.A.-G. On the other hand while resisting the petition argued that the instant writ petition is based on unfounded grounds as the adjustment of the petitioner as DSP in G.B. Police department was made purely on political manipulation. He argued that the deputation and adjustment order of the petitioner was totally against the laid down procedure and the relevant rules. He argued that no one is supposed to be treated as a golden child ignoring all the formalities of laid down procedure and depriving the fundamental and legitimate rights of other employees of the department because the absorption order of the police has caused miscarriage of justice as well as general tendency of frustration among the deserving senior most Police officers. He submitted that since the absorption order of the petitioner as DSP was illegal as such the respondent-1 being competent authority in this matter has rightly issued the notification thus, calling no interference. He argued that the appeal preferred by the petitioner to the Chief Minister Gilgit-Baltistan against the impugned notification was bad in the eye of law for not following the procedure laid down in Gilgit Baltistan Civil Servants Act, 2011 for such appeal as such the outcome of the appeal in the shape of notification dated 31-5-2014 was not binding upon the respondents.
9. We have given a patient hearing to the learned counsel of the parties and have gone through the record of the case with their able assistance. The point which is undisputed between the parties is that the respondents borrowed the services of the petitioner transferring him from ASF to Northern Area Police department on deputation and later on he was permanently adjusted against a vacant post of. DSP and accordingly he joined the post of DSP in the department. It is admitted on the record that firstly the petitioner was transferred to G.B. Police as DSP on deputation and later on the competent authority while relaxing the rules adjusted him against the post of DSP. This adjustment although had called in question by some police Inspectors through filing Writ Petition No,42/2009 before this Court wherein the present respondents who were party as respondents fully defended the petitioner and succeeded in convincing the court on the point that the adjustment of the petitioner against the post of DSP was not unlawful. Admittedly, the department itself has adjusted the petitioner against the post of DSP in relaxation of rules by the competent authority therefore, they could not be allowed now to raise any objection against the adjustment because law does not allow one to take benefit of his own lapses. Any order issued by a E competent authority under section 21 of General Clauses Act had the power to undo the same but such order after taking legal effect and creating certain rights in favour of an individual, could not be withdrawn, recalled, rescinded, amended or varied under the admitted principle of locus poenitentiae.
10. We have noticed that the respondents in the above referred Writ Petition No, 42/2009 have strongly pleaded that the present petitioner rightly and in accordance with law was adjusted against the vacant post of DSP in Police department Gilgit-Baltistan but we are afraid to notice that the respondents subsequently in this petition changed their position, could not be allow them to plead approbate and reprobate. It is the fact that the adjustment order of the petitioner as DSP has taken legal effect creating valuable rights in his favour, could not be rescinded or amended. The statement made by the respondents in Writ Petition No,42/2009 regarding adjustment of the petitioner as DSP stating to be lawful before this Court would stop them from taking a different position at the cost of disadvantage to the petitioner in the present petition especially when the petitioner has ceased lien in his parent department.
11. In the impugned notification the respondent-1 while referring judgment dated 30-5-2012 passed by Islamabad High Court has stated the said Court also had repatriated the petitioner back to his parent department was not correct because the Court has repatriated the petitioner back to G.B.
Police department as his parent department. In this regard we are of the considered view that the respondent-1 was not properly assisted by his subordinates in this matter before issuance of the impugned notification. Government functionaries are supposed to act in accordance with law, Justice and equity so that issues like in hand should be avoided. They are not allowed to use the law according to their personal views and wishes. They are also not allowed to change the stance some time in favour of an individual and some time against his rights on same issue and dispute.
We have also noticed that when the impugned notification was issued by respondent-1 neither any enquiry was conducted nor the petitioner was served with show-cause notice, even he was not heard by the authorities concern, meaning thereby that the petitioner was condemned unheard which otherwise is against the principles of natural justice "audi alterm patrem" especially when the petitioner has secured a vested right which could not be taken away or withdrawn by the respondents in a fanciful manner i,e, without providing opportunity of being heard.
12. The impugned notification which no doubt, had created commotion for the petitioner for rendering him jobless as he has already been discontinued from the job of his parent department
(ASF) Islamabad therefore, he preferred an appeal to the Chief Minister for redressal. The Chief Minster after examining the matter was pleased to accept the appeal but even then the respondents did not recall the impugned notification. In this regard we are of the clear opinion that the Chief Minister being appellate authority in this matter has set aside the impugned notification as such the impugned notification did not exist. The arguments of the learned A.A.-G. That the appeal to the Chief Minister was not preferred in accordance with the procedure provided in Gilgit- Baltistan Civil Servant Rules, 2011 as such the notification dated 31-5-2014 issued by Chief Minister's Secretariat was not binding upon the respondents, lacking legal force hence could not convince us.
Suppose that the version of the learned A.A.-G. That the appeal was decided contrary to the procedure provided in the rules is correct, then the respondents as responsible persons should have sought remedy against the decision of the Chief Minister but remained mum till date. During the course of arguments the learned counsel of the petitioner pointed out that after issuance of notification by the office of Chief Minister on the appeal of the petitioner the respondents filed a petition for reviewing the impugned notification dated 31-5-2014 which was also turned down rather the office of the Chief Minister again wrote to respondent-1 for withdrawal of the impugned notification. This all shows that the Chief Minister being Chief Executive of the area has rightly decided the appeal of the petitioner and his decision in this matter being final binding upon the respondents. For reaching to above conclusions, we have relied upon the following cases:---
(a) PLD 2002 Supreme Court 728, (b) 2003 PLC (C.S.) 262, (c) 2008 PLC (C.S.) 715 (Lahore High Court) (d) 2007 PLC (C.S.) 145 (Northern Areas Court of Appeals).
13. In the light what have been discussed above, this writ petition is accepted, the impugned Notification No,SO(S)-1-2(39)/2013 dated 25-4-2014 issued by respondent-1 is declared illegal. He is entitled to continue his service as DSP under Notifications No,C.M.Sectt.1(04)/ 2012 dated 31-5-2014 of Chief Minister passed in appeal filed by the petitioner. The petitioner is a permanent employee of police department Gilgit-Baltistan and also entitled for his all back-benefits if have not been allowed by the respondents including his seniority as on 25-4-2014. The respondents are further directed to issue formal notification withdrawing the impugned notification for maintaining the cord. .