' MRS, SYEDA TAHIRA SAFDAR, ACTG. C.J.--- The petitioner Ghulam Mustafa and four others were before this court with a petition for writ against the official and private respondents, while contending that they being the regular employees serving in the Revenue Department (The Department) on different posts, thus their services fall within the ambit of civil services and they are civil servants as described by law. Their grievance pertains to issuance of order for transfer and posting of respondent Nos. 3 and 4 in the Department as Tehsildars, It was their case that the initial appointments of respondents Nos.3 and 4 were on ad hoc basis in the Evacuee Trust Property Board (The Board) without adhering to the legal formalities. While on appointment they (respondents Nos.3 and 4), were attached for the purpose of training to the Board of Revenue Balochistan vide letter dated 15th March, 2012, but later on, the respondent No, 3 was posted as Tehsildar in District Musa Khail, while respondent No, 4 was posted as Tehsildar Nokundi Chagai, in violation of Law and Rules, as being employees of the Board could not be transferred and posted as regular Tehsildars in the Department. It was prayed that the order for transfer and posting of respondents Nos.3 and 4 be declared illegal and in excess of authority, thus be set aside, with a direction to them to join their (respondents Nos.3 and 4) parent department i,e, the Board.
2. The Department (respondent No,2) through Senior Member Board of Revenue filed parawise comments with the averments that the transfer and posting of respondents Nos.3 and 4 was as per desire of the Chief Minister and the Revenue Minister, with the approval of the competent authority.
Further, the Revenue Minister having the authority to make order for transfer/posting with approval of the Chief Minister, which was duly obtained. The right of the petitioners was denied while contending that the orders were made in accordance with the law while observing all the legal formalities. Further, two posts of Tehsildar were created for a period of three years for the purpose of payment of salary to the deputationist (respondents Nos.3 and 4), which also suffered with no illegality.
3. The Evacuee Trust Property Board (respondent No,1) in separate reply averred that initially the respondents Nos.3 and 4 were appointed as Tehsildar on work charge basis for a period of eighty eight (88) days in 2010, their services were regularized vide order dated 20th September, 2011. It was further averred that after scrutiny the work charge appointments of the respondents Nos.3 and 4 were found bogus, irregular, which made the whole process of regularization illegal and without lawful authority. It was asserted that respondents Nos.3 and 4 though employees of the Board, but at present their services were placed at disposal of the Government of Balochistan on deputation basis for a period of three years on request of the Government of Balochistan.
4. In their joint reply it was asserted by the respondents Nos.3 and 4 that on request of the Government of Balochistan their services were placed at the disposal of the Government of Balochistan and they were at the disposal of the Board of Revenue on deputation for a period of three years vide Notification dated 11th July, 2012, and the process was held by observing all the legal formalities.
5. The learned counsel for the petitioners in addition to what have been asserted in the petition stated that the appointments were illegal and without lawful authority and in violation of the Rules and Regulations, as admitted by the Board in its parawise comments, thus of no legal effect.
Reliance was placed on:--- ' Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 Contempt proceedingd against Chief Secretary Sindh and others 2013 SCM R 1752
6. The learned counsel for respondent No,1 repeated the stance taken in the parawise comments and on query only stated that no departmental proceedings were pending against the respondents Nos.3 and 4. While the learned Assistant Advocate-General stated that the period of deputation had already been expired, and no order of extension of the period was issued till date by the concerned authority. He further stated that respondent No,2 had not taken any action against them (respondents Nos.3 and 4).
7. As far respondents Nos.3 and 4 are concerned, their counsel objected jurisdiction of this court and placed reliance on the judgment titled Chief Engineer, Hydel (North) and Project Director, WAPDA, Warsak v. Zafrullah Shah and another reported in 2003 SCM R 686. It was contended that the petitioners and respondents Nos.3 and 4 both fall within the category of civil servants, thus the jurisdiction lies with the Services Tribunal. He further stated that in case of deputation there was no order to repatriate them to their parent department, nor any order of dismissal from service. The learned counsel was of the view that as the period of deputation had already been expired, thus the instant petition had become infructuous, and the relief claimed could not be granted. Reliance was placed on judgment titled Muhammad Asghar v. Government of Balochistan reported in 2012 PLC (C.S.) Quetta 142.
8. In reply the learned counsel for the petitioners referred to Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973, and stated that the posts were created after order of deputation which established that at the relevant time there were no posts, where the referred respondents could be adjusted.
9. The petitioners were aggrieved of the Notification dated 11th July, 2012, which was to the effect:--- "Notification 'No,120 (29)/2012/SO-1/(S&GAD). With the prior approval of the competent authority and in pursuance of Evacuee Trust Property Board (ETPB), Lahore's letter No, 5787 dated 6th July, 2012, the services of the following officers are hereby further placed at the disposal of Board of Revenue Balochistan on deputation basis for a period of three years:-
1. Mr. Zia Sanjrani, Tehsildar, ETP Office Quetta.
2. Mr. Mohammad Ismail Sanjrani, ETP Office Quetta CHIEF SECRETARY BALOCHISTAN"
' Consequent to this Notification the respondents Nos.3 and 4 were posted as Tehsildar in the Revenue Department, thus their services were to be governed by the Policy for Deputation of civil servants framed vide letter dated 21st November, 2007 of Government of Balochistan, Services and General Administration Department. The facts as described that initially respondents Nos.3 and 4 were appointed on daily wages for a period of 88 days, this arrangement continued until the services were regularized by the Board vide order dated 20th October, 2011. While in July, 2012 their services were lend to the Government of Balochistan, whereby they were posted as Tehsildar in the Board of Revenue, thus they were on deputation in services of the Government of Balochistan. The petitioners, regular employees of the Board of Revenue, were aggrieved of the order of borrowing services of respondents Nos.3 and 4, resulted in filing of the instant petition.
10. Before going into merit of the case the maintainability of the petition is to be considered, as an objection was raised on jurisdiction of this court by the learned counsel for respondents Nos.3 and
4. According to him the jurisdiction lies with the Services Tribunal as the matter in issue pertains to the terms and conditions of service. In case in hand the petitioners are in regular employment of the Department, thus in civil services of the Province, and covered by the term civil servant. Tints their services are to be governed by the Balochistan Civil Servants Act, 1974 (The Act, 1974). In addition their (petitioners') grievance was in respect of lending the services of respondents Nos.3 and 4 to the Government of Balochistan, and their posting in the Board of Revenue. According to the petitioners this act of the Authority prejudicial to their right. Rule 20-A of the Civil Servants (Appointment, Promotion and Transfer) Rules 1973, which pertains to the Federal Civil Services, deals with appointment on deputation, while Rule 22 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 is identical. It required formulation of policy and procedure for inter provincial transfer of government servants, thus the policy framed has power of law and it is to be adhered to. In view of the referred law, and Rules if any term of services of the petitioners violated by the act of the concerned authorities the remedy lies with the Authority as provided in the Rules and also before the Service Tribunals constituted for the purpose under section 3 of The Balochistan Service Tribunal Act, 1974 (Act, 1974) within the mandate of Article 212 of the Constitution. Thus this court lacks jurisdiction in the matter. The remedy available under the law and the Rules was not availed by the petitioners, making the instant petition not maintainable.
11. In view of the narrated facts and findings there is no need to go into further details of the case and to assess the legality of the order in question in comparison to the referred Rules and Policy, and in view of the guidelines given in the judgment reported in 2013 SCM R 1752 in the case "Contempt Proceedings against Chief Secretary Sindh and others" by honorable Supreme Court.
12. Before parting with the order, the court took note of the statement of the Assistant Advocate- General that the period of deputation has already been expired and not extended, thus the respondents Nos.3 and 4 have to be repatriated to their parent department. Certain facts also need to be noted in addition thereto that as per reply of respondent No,1 (the Board) the initial appointment of respondents Nos.3 and 4 were bogus, illegal and without lawful authority, but it remained mere an assertion. As the learned counsel representing the Board (respondent No,1) when asked about the steps taken by the Board, the parent department, as well as the lending authority, was unable to reply. He only stated that as the respondents Nos.3 and 4 were on deputation and their services were at the disposal of Government of Balochistan, therefore, the Board had not taken any action against them. While the learned Assistant Advocate-General was also asked to explain that when on filing of the reply by the Board on 11th November, 2014 the fact came into knowledge of the Department, the borrowing authority, whether any action was taken against respondents Nos.3 and 4, the answer was in negative. It was only stated that as transfer/posting was within the domain of the Minister, therefore, no action was taken against the respondents Nos.3 and 4.
13. It is noted with concern that the Policy, which governs terms and conditions of deputation of civil servants was not followed by the authorities, lending and borrowing, rather they remained silent despite having knowledge of the illegality. The procedure of inquiry against deputationist is provided in Para-17 of the Policy. The borrowing authority is fully empowered to take disciplinary action against a civil servant on deputation. While the lending authority, being the parent department, have all the authority to initiate proceedings against the accused civil servant under the Rules governing the deputationist in its parent department. Both the authorities, borrowing and lending, despite having knowledge that initial appointment was illegal, bogus kept silent for a period consisting of years, It is not only unfortunate but highly objectionable.
14. In view of the narrated facts the prayer in the petition could not be allowed, but keeping in view the reply of the Board it deemed necessary to direct that there shall be no extension in the period of deputation of respondents Nos.3 and 4, they shall be repatriated to their parent department without any loss of time. While the parent department i,e, respondent No,1 Evacuee Trust Property Board is required to take disciplinary action not only against the respondents Nos.3 and 4, but also against the persons responsible of their appointment and also for their transfer and posting on deputation to the Government of Balochistan.
' The petition stands disposed of in the above terms.