Through this Constitutional petition, the petitioner , who is a civil servant presently posted on deputation in the Lahore Development Authority ('LDA') has called in question order dated 07.11.2018 whereby he has been transferred from the post of Director Administration LDA to Director C&I, LDA with immediate ef fect.
2. At the very outset, learned counsel for petitioner has been confronted with the legal position that Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution '), seeking the enforcement of terms and conditions of civil servant is not maintainable as having been barred under Article 212 of the Constitution. The learned counsel submits that although the petitioner was appointed in BS-17 and previously posted as Section Officer in the establishment of S&GAD but he had been transferred on deputation to LDA as Director Administration at the request of Director General LDA with the approval of Election Commission of Pakistan ('ECP') and as per sub-section (b) of Section 2 of Punjab Civil Servants Act, 1974 ('the Act') a person serving on deputation does not fall within the definition of civil servant and consequently the bar under Article 212 of the Constitution would not be applicable.
3. On the other hand, learned Assistant Advocate General has argued that if a civil servant is transferred to other department on deputation basis, even then he still remains to be governed by terms and conditions applicable to him as civil servant and consequently, bar under Article 212 of the Constitution would be applicable.
4. Heard, record perused.
5. The petitioner , a civil servant posted on deputation basis in LDA, is aggrieved of his transfer from the post of Director Administration LDA to Director C&I LDA vide order dated 07.11.2018 and has challenged the same through this constitutional petition under Article 199 on the basis that after transfer to the LDA through deputation, the bar of Article 212 shall cease to be operative against the petitioner as he no longer remained a civil servant as per exceptions provided in definition of civil servant provided in section 2(b) of the Act. Besides it also argued that a person serving on deputation cannot be transferred from the place where he was appointed or deputed to another post by borrowing the department.
6. The question for determination before this Court is whether a civil servant ceased to be a civil servant if transferred through deputation to some authority (LDA in this case) and terms and conditions of service cease to be applicable to him in such circumstances.
7. Every civil servant is bound to serve anyw here within or outside the province in any post under the Government of the Punjab, Federal Government, any other provincial government or local authority or corporation or any other body set up or established by any such Government, which is evident from Section 9 of the Act which is reproduced below for ready reference:- "9. Posting and transfers. Every civil servant shall be liable to serve anywhere within or outside the province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government: Provided that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve. "(emphasis supplied)
8. The petitioner relies upon definition of civil servant provided in Section 2(b)(i) of the Act to argue that a civil servant serving on deputation is excluded from the definition of civil servant and consequently bar of Article 212 of the Constitution would not be applicable, which is reproduced as under: - "2. Definitions. (1) In this Act, unless there is anything repugnant in the subject or context, --
(a) .....................
(b) 'Civil Servant' means a person who is a member of a civil service of the province or who holds a civil post in connection with af fairs of the province , but does not include--
(i) a person who is on deputation to the province from the Federation of any other province or authority;"(emphasis supplied)
9. To appreciate the said argument definition of civil servant as provided above has to be analyzed, wherein a 'civil servant ' is defined as a person who is a member of civil service of the province, or who holds a civil post in connection with affairs of the province. The present petitioner is not only a member of the civil service of the province appointed in BPS-17 but also holds a civil post of Director in LDA, which is working in connection with the affairs of the province. Therefore, as to the extent of the definition of civil servant, the petitioner is a civil servant for all intents and purposes. As regards the limb of the arguments that having been appointed on deputation he ceased to be a civil servant is concerned, it is observed that Section 3 of the Act provides that terms and conditions of service of a civil servant shall be provided by this Act or rules. Chapter II of the Act provides the terms and conditions of service of civil servants, which includes Section 9 reproduced and discussed above which makes it clear that a civil servant may be posted anywhere in the province, federal government, local authority etc., the only condition being that as per proviso of the said section the terms and conditions of service as to his pay shall not be less than those to which he would have been entitled had he not been so required to serve.
10. The exclusion clause attached to definition provided in sub-section (b) of section 2 of the Act provides that civil servant shall not include a person who is working on deputation to the province from the Federation of any other province or authority. The conditions laid down in the said exclusion clause are that a person working on deputation in the province, shall not be a civil servant if sent to work on the said post from:- i. the federation; ii. any other province; or iii. any authority.
None of the afore-referred conditions are applicable to the case of the petitioner as he has not been sent on deputation to work in the province of the Punjab from any of the afore referred departments/authorities; consequently the exclusion clause is not applicable to him and he continues to remain a civil servant for all intents and purposes. Even otherwise, deputation is an arrangement whereby Government and any section of Government Authority or statutory body had agreed to lend any employees of such Department, institution or Organization to another Department on mutually acceptable conditions between lending and borrowing Authorities and law protects the terms and conditions of service relating to pay of civil servant. The borrowing department LDA borrowed the said civil servant to be posted in LDA without mentioning as to against what post he would be posted on deputation, and he was posted as Director Administration from which he has been transferred as Director C&I.
Transfer which is one of the terms and conditions of service of the civil servant, could only be challenged through remedies provided by service laws in terms of Article 212 of the Constitution and as such the constitutional petition would not be maintainable simply for the reason that the services of the petitioner had been given to LDA on the basis of deputation. Without prejudice to what has been stated above, even if the petitioner was not to be treated as a civil servant and service rules of LDA were held to be applicable to his case, the said Rules have been observed by the Hon'ble Supreme Court of Pakistan to be non-statutory in judgment reported as Haroon-u- Rasheed vs. Lahore Development Authority and others (2016 SCMR 931) and resultantly constitutional petition on that account would also not be maintainable. In these circumstances, the question relating to jurisdiction of the borrowing department to transfer an employee from one post to another within its jurisdiction has been left open to be decided in appropriate proceedings.
11. For what has been discussed above, this petition is dismissed as not maintainable. However , the petitioner may, if so advised, seek appropriate remedy before the proper forum, in accordance with law .