IJAZ UL AHSAN, J.---Through this single order, we propose to decide C.P.L.A. No.4041 of 2019 (filed by Fayyaz Hussain) and C'.P.L.A. No.4077 of 2019 filed by Syed Naseer Ahmed Shah) as both arise out of the same judgment of Peshawar High Court, Peshawar dated 10.10.2019 and common questions of law are involved therein.
2. Briefly stated the facts necessary for decision of C.P.L.A. No.4041 of 2019 are that the petitioner (Fayyaz Hussain) was serving as an ASI in Khyber Pakhtunkhwa Police Department. He made an application for his transfer to Federal Investigation Agency ("FIA") on deputation. Pursuant thereto, he was transferred to FIA vide order dated 02.11.2011 initially for a period of three years. Subsequently, he was permanently absorbed in FIA vide Office Order dated 14.05.2014. However, in view of a judgment of this Court reported as Contempt Proceedings against Chief Secretary, Sindh and others (2013 SCMR 1752), the petitioner was repatriated to his parent department and his absorption in FIA was cancelled/withdrawn on 31.01.2018. He challenged his repatriation by way of filing Writ Petition No.1311-P of 2018 which was dismissed by the learned' High Court vide impugned judgment dated 10.10.2019 along with Writ Petition No.3577-P of 2017 which was filed by Syed Naseer Ahmed Shah. The latter has also challenged the said judgment of the learned High Court by way of filing C.P.L.A. No.4077 of 2019 before this Court.
3. Facts in brief given in C.P.L.A. No.4077 of 2019 filed by the petitioner (Syed Naseer Ahmed Shah) are that vide order dated 16.04.2010, he was transferred to FIA on deputation for a period of three years. One year later, vide office order dated 28.05.2011 he was absorbed in FIA as Sub-Inspector (BS-14) with immediate effect. However, pursuant to the judgment of this Court in the case of Contempt Proceedings against Chief Secretary, Sindh and others (ibid) he was repatriated to his parent department and his absorption was cancelled/ withdrawn. The petitioner challenged his repatriation by way of filing. Writ Petition No.3577-P of 2017 before the Peshawar High Court:, Peshawar. This was dismissed by the learned High Court, vide impugned judgment dated 10.10.2019.
4. Aggrieved, the petitioners have instituted the instant petitions before this Court.
5. We have heard the learned counsel for the petitioners in both petitions at length and gone through the record.
6. As far as the case of petitioner-Syed Naseer Ahmed Shah is concerned, when he was permanently absorbed in FIA, employees of FIA filed representations against his absorption on the ground that the petitioner was absorbed in contravention to the prescribed rules and regulations. This led to an internal inquiry which recorded findings against the petitioner to the effect that he had been absorbed in violation of Standing Order No.21/84 as well as in violation of FIA Personnel Policy framed in exercise of powers under section 4(2) of Federal Investigation Agency Act, 1974. The relevant portion of the inquiry report is reproduced below: "Violation of Standing Order No.21/84 Para 18: He was taken on deputation on 30.04.2010 from Traffic Police, Peshawar and later on he was absorbed on 28.05.2011, with short time of period One year and 28 days. Thus violated Standing Order No.21/84 Para 18.
According to Para 18 of Standing Order No. 21 /84, the decision regarding absorption or otherwise is required to be taken at least six months before the expiration of deputation period.
Violation of FIA 's Personal Policy [framed and exercise of powers under section 4(2) of FIA Act, 1974] Section 6, Para-(a) (investigation):- FIA is basically an investigation/enquiry agency. It is primarily deals with the enquiries, investigation and legal examination of cases. It is therefore, staffed by officers who have police ground. This group comprises of either officer who have been directly recruited and given complete police training and orientation or those taken on deputation from Provincial Police Organization. Even then those police officer are accepted on deputation who have had practical experience of police working in the investigation of cases in police station, besides physically eligible and training in police stations. Those who have no knowledge, training, practical experience of police working and investigation officers are not accepted as the matter of police. It is worth mentioning here that SI Naseer Ahmad Shah has neither 'undergone any probationary training nor he has an investigation experience of cases in police station. He is a simple computer operator, having no investigation experience."
7. During the course of hearing, we have noticed that the petitioner Syed Naseer Ahmed Shah was employed as a Constable/Computer Operator in the Traffic Police, Khyber Pakhtunkhwa. He manipulated his successive promotions in a short span of time. He managed his promotions firstly as Head Constable, thereafter as ASI on officiating basis and subsequently as Sub-Inspector/Computer Operator. B All this happened within a span of few months which is not only unprecedented but quite surprising considering the mode and manner in which the promotions are required to be given in terms of the rules and regulations of the department. Further, on transfer to FIA on deputation basis, the petitioner managed his permanent absorption on 28.05.2010 within a period of one year and 28 days. This is a classical example of clever manipulation of the system through devious means and influence mongering.
8. We have repeatedly asked the learned counsel for the petitioner to explain how and under what law and rule the petitioner could get accelerated promotions, get himself transferred on deputation to a department for which he was not qualified and thereafter within a short span of one year and few months he got himself absorbed. The learned ASC has not been able to come up with any plausible or legally sustainable response.
Further, we have called upon the learned counsel to explain how the petitioner's case is in any manner distinguishable from the ratio of the judgment of this Court in the case of Contempt Proceedings against Chief Secretary Sindh and others (supra). He has not been able to point out any distinguishing feature. We are therefore of the view that the learned High Court was quite justified and had valid reasons to deny relief relying on the judgments of this Court as well as the fact that considering the conduct and the manner in which the petitioner had quite cleverly manipulated the system for his personal benefits in violation of all applicable regulations, rules and laws, the discretionary and equitable relief could not be granted to him. The learned High Court was therefore quite justified in refusing relief to the petitioner.
9. As far as the case of Fayyaz Hussain, the petitioner in C.P.L.A. No.4041 of 2019 is -concerned, the only argument advanced by his learned counsel is that petitioner's case has wrongly been clubbed with Writ Petition No.3577-P of 2017 and dismissed in a mechanical manner without considering or discussing the facts and circumstances of his case. In the first place, we notice that the principles of law involved in both matters were the same. Therefore, the learned High Court was quite justified in dismissing both petitions through the impugned judgment. Further, we have specifically asked the learned counsel for the petitioner to show us any rule or regulation on the basis of which, the FIA Act, 1974 provides for permanent absorption of employees working in FIA on deputation. He has not been able to point to any such law, rule or regulation.
We have also confronted the learned ASC with the principle that where the law envisages appointment through the mode either of direct recruitment or by promotion, whether a person can be appointed and inducted in service by way of absorption. He has not been able to answer the said question to our satisfaction nor has he been able to point to any legal provision that may confer such powers on the department. The learned counsel has however further argued that the petitioner was one of a few who had been selected by the competent authority after assessing their fitness eligibility and suitability and as such the absorption of the petitioner could not be cancelled/withdrawn. We are afraid, the 'argument is misconceived. Where the Committee was constituted and acted without the mandate of law providing for appointment by absorption, the recommendations made by the Committee or any absorption undertaken pursuant to such recommendations, suffers from lack of legal basis or statutory support and would therefore be without lawful authority.
10. We have also asked the learned counsel for the petitioner to explain to us how repatriation of the petitioner to his parent department falls outside the ambit of the judgment of this Court cited above. Although, he has attempted to argue that petitioner's absorption was lawful and his repatriation would be discriminatory, he has not been able to show any distinguishing feature that may take his case out of the ambit of law laid down by this Court in its various pronouncements noted above.
11. We have carefully gone through the impugned judgment as well as the documents appended with these petitions. Learned counsel for the petitioners have not been able to persuade us that there is any error, legal, procedural or jurisdictional or any perversity in the impugned judgment of the High Court that may require interference by this Court in exercise of its powers under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973. No case for grant of leave to appeal is made out.
12. For reasons recorded above, we do not find any merit in these petitions. The same are accordingly dismissed. Leave to appeal is refused.