' ZULFIQAR AHMAD KHAN, J.-- The brief facts of the case are that the petitioner was appointed as General Manger (Operations) in Karachi Port Trust (K.P.T.), on secondment after his retirement from Pakistan Navy, for an initial period of three years w,e,f, 21.04.2008 pursuant to the process initiated vide a letter issued by the Prime Minister's Secretariat dated 22.03.2008. The said case of the petitioner was taken place by the Prime Minister Secretariat vide Summary dated 31.07.2012 for seeking approval from the Prime Minister pursuant to the Item No,4 of the said summary. The counsel for the petitioner has contended that pursuant to Prime Minister Office Memorandum dated 11.09.2012, the Secretariat informed the respondents Nos.1 and 2 (K.P.T) that the Prime Minister was pleased. to approve the proposal contained in the said Summary of 31.07.2012.
2. In the meanwhile, counsel contends that the respondents issued a letter dated 27.09.2012 for seeking further information and instructions as to the necessary action to be taken by them on the said Summary. As per the chain of events, on 27.09.2012 the respondent No,2, acting under the supervision of respondent No,1, passed a Resolution giving effect to the above recommendations passed and communicated to it from the Prime Minister's Secretariat. The text of the recommendations is reproduced hereunder: "The Board considered Agenda Item No,1 regarding Re-employment/permanent absorption of Local Rear Admiral Azhar Hayat SI (M), as General Manager (Operations) P.No,2041 in Karachi Port Trust after retirement from Naval Services in the light of Manager (HR) 'S noted dated 25/09/2012 duly endorsed by General Manager (A) and recorded approval of the Prime Minister of Pakistan for re-employment/permanent absorption of Local Rear Admiral Azhar Hayat SI(M) P.No,2041 as General Manager (Operations) (BPS-21) in Karachi Port Trust, Karachi after retirement from Naval Services, as conveyed vide Establishment Division's 0.M.No,4/2/2008 dated 11/09/2012 (Annex-A-1) forwarded by the Ministry of Ports and Shipping bearing letter No,1(12)/2008-P&S-I, dated 24/09/2012 (annexure-A) for implementation."
3. Since the petitioner was retiring from Naval services on 14.10.2012, a Notification was issued by the Establishment Division dated 28.09.2012. The contents of the said Notification are reproduced hereunder: "With the approval of the Competent Authority, P.No,2141 Local Rear Admiral Azhar Hayat SI (M), is re-employed on contract basis, as General Manager (Operations) (BS-21) in Karachi Port Trust, Karachi under Ministry of Ports and Shipping, from the date of his retirement from Naval Service in terms of para 2(b) of JSI 4/85 and provision of Section 44 of the Karachi Port Trust Rules, 2011."
4. The petitioner in acting under the said Notification took charge and submitted his joining report as General Manager (Operations) dated 15.10.2012.
5. The grievance of the petitioner is that the Notification referred hereinabove of 28.09.2012, where the petitioner is notified to have been re-employed on "contract basis" is inconsistent with the Resolution dated 27.09.2012, whereby it was resolved that he would be re-employed for "permanent absorption" as General Manager (Operations) with Karachi Port Trust. When this issue was raised as to the petitioner's possible absorption in KPT or he being employed on contract basis, to remove this discrepancy and to seek clarification, the respondents vide Minutes dated 14.04.2014 put the following two options:
(a) A fresh summary be moved to the Establishment Division; or
(b) Karachi Port Trust may do so on its own and put the case before its Board afresh.
' The respondents preferred to do (a) and moved a summary to the Minister of Ports and Shipping on 24.04.2014 with the following contents: "Since his first arrival in KPT till to date, he would be completing six years, and one month plus. The Ministry is of the opinion that this is sufficient period and proposes that Rear Admiral Azhar Hayat (Retd.) re-employment on contract basis may be determined to be effective from 15-10-2012 (he retired on 14-10-2012 from Naval Service) to 30-06-2014 and also the Ministry may be allowed to initiate the process for filling up the post of GM (Ops) KPT as per government instructions."
6. A summary for the Prime Minister was accordingly prepared on 14.05.2014 keeping in view the complete background of the case of the petitioner and the issue of the discrepancy erupted in- between his re-employment on contract basis viz permanent absorption in KPT was discussed at length. The following proposals were made in the said summary for the consideration of the Prime Minister: "13. In view of foregoing, summary was submitted to the Minister with following proposals:
(a) Rear Admiral Azhar Hayat (Retd.) re-employed on contract basic may be determined to be effective from 15-10-2012 (he retired on 14-10-2012 from Naval Service) to 30-06-2014.
(b) He may be relieved on 31-05-2014 and be paid emoluments for the remaining period of his contract i,e, 1st June, 2014 to 30th June, 2014 in lieu of his early relinquishment of charge as per standard terms and conditions of contractual employees.
(c) Chairman, Karachi Port Trust may be assigned the additional charge of G.M (Operations) of Karachi Port Trust till further orders when Rear Admiral, Mr. Azhar Hayat (Retd.) relieves the charge on 31-05-2014.
(d) In relaxation of ban the Ministry of Port and Shipping may be allowed to start the process of filling up the post of G.M (Operations) of Karachi Port Trust on regular basis through promotion/recruitment, induction or transfer, through normal channels."
7. When this summery went to the Minister of Port and Shipping, he added that "We should go by the earlier decision of the Prime Minister for two years".
8. Subsequent to the said summary dated 14.05.2014, the Establishment Division issued Notification dated 17.06.2014, wherein a clarification was made to the effect that "contract period of Local Rear Admiral Azhar Hayat Si (M), presently working as General Manager (Operations)(BS-21) in Karachi Port Trust, Karachi under Ministry of Ports and Shipping is determined for two years from 15-10-2012 to 14-10-2014."
9. Being aggrieved with this outcome, the petitioner filed C.P.No,D-2602/2014 before this Court, challenging the said Notification of 17.06.2014, however, in the hearing held on 19.08.2014, the counsel for the petitioner appeared and submitted that he has instructions to not press the said petition, which was accordingly dismissed as "not pressed" along with pending applications by the Court order of the even dated. The petitioner however filed a Suit bearing No,1615/2014, wherein on 17.09.2014, the Petitioner was granted a status-quo in respect of his services in KPT.
10.Vide order dated 06.02.2015 referring to the paras 157/158 of the judgment pronounced by the Honourable Supreme Court of Pakistan wherein all civil suits filed by the employees of statutory body having statutory rules were ordered to be adjudicated in accordance with law, the said suit was then accordingly converted into the present Constitution Petition.
11.Heard learned counsel for the petitioner, counsel for the respondents and learned Additional Attorney General. Counsel for the petitioner argued that the petitioner originally came to K.P.T while he was already serving with Pakistan Navy as General Manager on deputation with effect from 21.04.2008 and when he was retiring from the Naval services, K.P.T through its Board showed interest in acquiring the services of the petitioner on permanent basis after his retirement from the Naval Services and the Board Resolution of 21.04.2014, clearly portrayed that he would be permanently absorbed in K.P.T as General Manager (Operations), however, the Notification of his such appointment, dated 28.09.2012, was contrary to the resolution passed in relation therewith and the clarification issued by the Establishment Division dated 17.06.2014 specifying that his services were only for the period of two years effective from 15.10.2012 to 14.10.2014 is ultravires and against the law.
12.To impugn the said notification of 28.09.2012, the petitioner filed a constitutional petition on 05.04.2014 bearing No, D-2404/2014 praying, inter alia, setting aside of the said notification.
However, on 07.05.2014, when the said C.P. was fixed for non-prosecution, the counsel for the petitioner filed an application for withdrawal of the petition, whereupon, orders were passed on the even date that the petition be dismissed as withdrawn.
13.The counsel for the respondents drew Court's attention to para 4 of the Summary dated 31.07.2012 moved to the Prime Minister of the following contents: "4. Approval of the Prime Minister is solicited for re-employment/permanent absorption of local Rear Admiral Azhar Hayat SI (M) P No,2041 as General Manager (Operations) BS-21 in Karachi Port Trust, Karachi after retirement from Naval Services in accordance with JSI 4/85 para 2(b) (Annex- VIII) and Sr. No,214(b) of ESTA Code (Annex-IX)"
14.The counsel contended that the reference made to Joint Service Instructions (JSI) in the aforesaid summary does make it clear that petitioner's re-employment is not on permanent basis leading towards his permanent absorption in KPT since as per the JSI, the retired officer of higher ranks of armed forces of Pakistan (i,e, Lt. Col. and above) cannot be joined in civil service on permanent basis and can only work or contract basis. The learned counsel giving reference to JSI clarified that since the rank of the petitioner in Naval Service is higher than the Lt. Col. of Pakistan Army, such officer can only be re-employed for a period of three to five years upto the age limit of 60 years and that too only on contract basis and not on permanent basis as alleged by the petitioner. He further contended that since the approval letter as relied upon by the petitioner did not provide clarity about the period of employment of the petitioner, and since only certain provisions were referred to there in, the Office Note dated 14.04.2014 was accordingly initiated by the Senior Joint Secretary (P&S)/respondent No,3, and the Secretary (P&S) directed for putting up such summery which was accordingly put up on 24.04.2014 by the Senior Joint Secretary, whereupon the summary was forwarded to the Minister, wherein it has been pointed out that re- employment of the petitioner has been determined on contract basis for the period from 15.10.2012 to 14.10.2014.
15.The counsel for the respondent contended that the petitioner has already retired from Naval Services on 14.10.2012, therefore, such decision after due approval of the competent authority was notified vide Notification dated 17.06.2014, clarifying that the extent/term of the contract of the petitioner is determined for two years from 15.10.2012 to 14.10.2014. The counsel submitted that the interim order granted in Suit No,1615/2014 passed on 17.09.2014 granting status-quo was respected, however, on 02.02.2015 and 04.02.2015 interim status-quo orders were not extended by this Court, and when on 06.02.2015 the suit was converted into Constitution Petition, in the presence of the advocates of the parties concerned, the status-quo allowed was not extended in spite of the request having been made for such extension by the petitioner. Hence, the petitioner was relieved from the service vide letter dated 06.02.2015 and another officer was given additional charge for the post of General Manager (Operations). Notwithstanding therewith though the petitioner has been relieved from his duties as on 06.02.2015 in compliance of the Order dated 03.03.2015, the petitioner has been allowed to join K.P.T w,e,f, 04.03.2015, however since the duties of General Manager (Operations) were already assigned to another officer, the petitioner was not required to perform his duties, however, he is being given all his benefits, salary and perks. Notwithstanding therewith, though the petitioner has been accordingly compensated, he is still creating disturbances in the smooth functioning of the administration work of the respondents by issuing unnecessary letters, which have been submitted with the affidavit filed by the respondents as Annexures R/8 and P/9. The learned counsel prayed that the continued presence and payment of salary and other emoluments are causing loss and creating problems for the respondents and in the light of the Notification dated 28.09.2012 as clarified by the Notification dated 17.06.2014, the petitioner has no right to continue his service with K.P.T, particularly in the letter dated 06.02.2015 when K.P.T issued relieving orders to the petitioner.
16.The learned Additional Attorney General referred to para 4 of the summary sent to the Prime Minister on 03.07.2012, where the approval of the Prime Minister was sought for re-employment/ permanent absorption of the petitioner in accordance with (JSI 4/85 para 2(b) and Sr. No,214(b) of ESTACODE. The learned A.A.G. summarized that the core issue before this court is to decide whether the law provides for permanent absorption of the petitioner, who is with the rank of Rear Admiral after his retirement from the Naval Services 17.With regards to above contentious, SI. 231 and 231-A of the ESTACODE -- 2007, Volume 1, Pages 344-346 and 349, paragraph No,18 is relevant which is reproduced hereunder:- "18. Officers of the rank of Major/equivalent who retire or may have retired before completion of the prescribed age or service limit and officers of the rank of Lieutenant Colonel and above and equivalent who may retire or may have retired either after completion of prescribed service or age limit or before such completion will be eligible for re-employment on contract for 3 to 5 years, renewable upto the age of 6o, upto the maximum of 10% of annual vacancies in various groups and cadres, as may be specified, on the terms and conditions mentioned hereinafter." [Emphasis supplied]
18. It is evident from the foregoing that the officers above the rank of the Lt. Col. and above (as is the case of the petitioner) are eligible for re-employment on contract for 3 to 5 years only, though, however, there are provisions that such a contract can be renewed upto to the age of 60 years.
Also of serious consideration is the contention of the learned AAG that the summary was sent and the approval of the Prime Minister was sought for re-employment or absorption of the petitioner in accordance with JSI 4/85, which deals with terms and conditions of service of Armed Forces Officers seconded to Civil Ministries (other different department of the Central/Provincial Government and Autonomous/Semi Autonomous Bodies/Corporations etc. Relevant clause of Section 2 of the said JSI deals with tenure of such officers, which is reproduced hereunder: "2- Tenure (a)Officers will normally be seconded for a period upto 3 years extendable, in exceptional circumstances by one year, by the Government, after which the officer will normally either be recalled to the parent service or released and no extension in service will be allowed to officers who complete age/service limits for retirement during secondment.
(b)If the deputation of an officer tends to become independently prolonged, permanent absorption of the officer concerned in the civil cadre by retiring him from the parent service would be considered."
19. It is evident from the above referred provisions of JSI 4/85 that the recommendations are initially for offering employment to the officer for a period of upto 3 years, however, in exceptional circumstances, such a period can be extended by one more year.
20. Now we focus our attention to the S.No,214 (Para V) of ESTACODE. The said clause refers to the "provision related to the Commissioned officers and other recruited or inducted on regular posts or on contract in civil posts" which again deals with terms and conditions of such officers inducted in civil post with regard to their tenure. Text of the relevant provisions is reproduced as under:
(a) Officers will normally be seconded for a period upto 3 years extendable, in exceptional circumstances by one year, by the Government, after which the officer will normally either be recalled to the parent service or released. No extension in service will be allowed to officers who complete age/service limits for retirement during secondment.
(b) If the deputation of an officer tends to become independently prolonged, permanent absorption of the officer concerned in the civil cadre by retiring him from the parent service would be considered."
21. As noted from the above, provisions of S.No,214 which also deal with the induction of commissioned officers in secondment viz-a-viz their respective tenure are identical with the respective provisions contained in JSI 4/85. Since the approval for the appointment of the petitioner was in accordance with JSI 4/85 as well as S.No,214(b) of ESTACODE and both having a pari materea provisions, our observations made while considering the restrictions imposed by JSI are further cemented after our perusal of clause 214 of ESTACODE reproduced hereinabove, leaving no doubt in our mind that their exist no possibility that the petitioner could have been inducted permanently in KPT on his secondment after his retirement from the Naval Service.
22.In support of the contentions, the learned counsel for the petitioner referred on the following case-law:
(i) 1981 SCMR 604 (Sameer v. Board of Revenue)
(ii) 1997 MLD 2642 (Muhammad Tufail v. LDA)
(iii)2014 PLC (C.S.) 987 (Humaira Hafeez' v. Government of Punjab)
(iv) 1990 PCr.LJ 1784 (Mumtaz Hussain v. District Magistrate)
(v) 1991 PLC (C.S) 532 (Sardar Hidayatullah Khan Mokal v. Government of Punjab)
(vi)2015 PLC (C.S.) 1246 (Rehmat Sanober v. Balochistan Public Service Commission)
(vii) 1981 SCMR 604 (Shameer v. Board of Revenue and others)
(viii) 1991 MLD 1605(Muhammad Bilal v. The Principal National College of Textile Engineering, Faisalabad)
(ix)2004 CLC 324 (Dilawar Hussain v. DCO Okara)
(x)19
(xi) PLD 2001 Pesh. 7 Lucky Cement Ltd. v. CBR ' All of the above referred cases are on the point of locus poenitentiae. The learned counsel contended that since the board resolution recommended that the petitioner be inducted permanently/absorbed in KPT, issuance of the notification of appointment on contract-basis is unwarranted and violative of the principle of locus poenitentiae.
23. Amongst above listed cases, the issue of locus poenitentiae has been discussed at length in many judgments of the Apex Court (e.g. 2015 SCMR 1418; 2015 SCMR 74; 2014 PLC (C.S.) 82; PLD 2014
(sic) 338; 2013 SCMR 1752; PLD 2013 SC 829; 2012 PLC (C.S.) 1271; 2011 SCMR 994). Ratio decidendi of the judgment of the Apex court is to the effect that in order to take benefit under the principle of locusn poenitentiae, the employee has to have a vested right in the job, which is accrued by issuance of appointment letter, and not before. While, in the instant case, the appointment letter issued to the petitioner is the notification dated 28.09.2012 offering the post on contract-basis, which was duly accepted by the petitioner, thus the said notification formed basis of petitioner's service with KPT. While the Board resolution was a proposal. No vested rights could be accrued to the petitioner merely from the proposal made in the said board resolution. Notwithstanding the issue of existence or otherwise of any vested rights of the petitioner, the Apex Court has given clear findings to the point- that "any award of benefit to a person in violation of law would not attract principle of locus poenitentiae". This view has been held consistently in a number of judgments of the Apex Court including, 2011 SCMR 408 Muhammad Nadeem Arif v. Inspector General of Police Punjab and 2011 PLC (C.S.) 1296 EDO Rawalpindi v. Rizwana Kausar; 2008 SCMR 598 Mian Tariq Javed v. Province of Punjab; 2007 PLC (C.S.) 58 Muhammad Feroz v. DDO Education and others and 1996 PLC (C.S.) 90). As this is the case of an officer of the Armed Forces joining a civil organization, which appointments are governed by JSI 4/85 and ESTACODES (as detailed in the foregoing) which provide no possibility of permanent absorption of the said officer of higher grade after retirement in the civil organization (KPT), therefor even if the Board resolution dated 27.09.2012 suggested his absorption on permanent basis; the said error was rectified by the issuance of the offer letter (notification dated 28.09.2012).
24. In the light of the foregoing, we do not find any force in the contentions of the petitioner.
Admittedly the petitioner was appointed on contract basis for a specific term which he has completed, therefore no vested rights can be claimed by him keeping in view the term of his contractual engagement.
25. The petition is dismissed accordingly with pending applications.