MUHAMMAD SHAN GUL, J. The titled constitutional petition is sought to be decided through this judgment.
2. Petitioner , Yar Muhammad, has filed this constitutional petition so as to claim 'lien' in respect of a post of Tech-IV (SPS-I) in the Pakistan Atomic Energy Commission, Taunsa Sharif.
3. Brief facts of the case are that the petitioner gained temporary employment with the Pakistan Atomic Energy Commission as Tech-IV (SPS-I) by way of appointment order dated 08.3.2007. Clause-I of the Order is quite relevant to the present controversy and reads as follows:- "(i) His appointment is purely tempor ary and can be terminated any time after notice of not less than a fortnight or by payment of salary for 14 days in lieu of notice period without assigning any reason thereof."
Likewise, Clause-V of the Order of appointment reads as under:- "(v) The post is temporary but is likely to continue for an indefinite period. It will not, however , confer on him any claim or title for permanent retention, but during his temporary employment, he will be entitled to such privilege and concessions as are enjoyed by such employees of the Commission. He will have to resign from his present post and sever all relations with present employers."
As is evident from a perusal of the appointment order , the appointment of the petitioner was purely temporary , had been ef fectuated against a temporary post and did not entitle the petitioner for being confirmed in service.
4. It is stated by the petitioner that he performed service in terms of the appointment Order with the respondent- Pakistan Atomic Energy Commission for eight years and on 07.3.2015 the petitioner statedly moved an application to District Coordination Officer, D.G. Khan seeking employment as a Hakeem in BS-15 on adhoc basis with the Province of Punjab. It is stated that the petitioner was relieved from his duties with the Pakistan Atomic Energy Commission in terms of order dated 22.4.2016:- OFFICE ORDER Subject: RELEVING FROM DUTY ON APPOINTMENT IN HEAL TH DEP ARTMENT .
Consequent upon his appointment as Hakeem (BPS-15) on adhoc basis for a period of 01 year in the District Health Department, D.G. Khan vide offer of appointment letter No.DCO/HC(A)2693-98 dated 09.04.2016, Mr. Yar Muhammad (PIN-15396, CNIC No.32103 -2664725-3), Tech-IV is hereby relieved off his duties at TISLP-2, NMC-I, D.G. Khan w .e.f. 22.04.2016 (AN). He will have no lien against said post.
2. This issues with the approval of Competent Authority ."
5. It is claimed that the petitioner continue d his service with the Health Department, Province of Punjab for a period of one year as an adhoc employee and thereafter his services were neither confirmed nor any extension was granted to him and he was asked to leave. This prompted the petitioner , albeit erroneously as it turned out, to move an application to the Director General, Pakistan Atomic Energy Commission for being allowed to rejoin his previous post on the basis of what the petitioner claimed to be 'lien'.
6. Vide order dated 31.5.2017 his application was turned down on the basis that he had no lien against the post that he previously occupied temporarily . This order is being reproduced hereunder: OFFICE MEMORANDUM Subject: NOC FOR JOINING IN PREVIOUS SERVICE The undersigned is directed to refer his application on the above subject and to inform Mr. Yar Muhammad S/O Jan Muhammad that his application for reversion into PAEC service has been considered by the Competent Authority but the same has not been found possibl e to be acceded to. As per this Complex Office Order No.Estt.3(755)07-II dated 22.4.2016 (Reliving from duty on appointment in Health Department), he has no lien against the post of Tech-IV in P AEC."
7. The petitioner on the strength of the law laid down by the Hon'ble Supreme Court of Pakistan in "Mazhar Ali v.
Federation of Pakistan/President of Pakistan through the Secretary , Establishment Division, Cabinet Secretariat and 2 others" (1992 PLC(C S) 411) has vociferously argued that lien of a civil servant in respect of a post occupied by him cannot be brought to an end till the time such servant gains regular or confirmed appointment in another service and that, hence, the rejection of his application for being allowed to rejoin duties on the basis of lien is bad in law. The petitioner , it may be mentioned, was never a civil servant while employed with the Pakistan Atomic Energy Commission! But more of this a bit later .
8. Ch. Shakeel Akhtar Sindhu, learned Asstt. Attorney General appeared on behalf of the respondents and objected to this petition on various grounds chief amongst which is that temporary employment against a temporary post such as the one in issue does not confer any right of lien on the petitioner since he was not a regular or permanent or even a confirmed civil servant and that he had only been appointed by way of temporary employment. Learned Asstt. Attorney General has also objected to this petition on account of an alternative remedy being available to the petitioner before the Appellate Tribunal constituted by the Pakistan Atomic Energy Commission for the purpose of addressing grievances of its employees.
9. I have heard the parties and have perused the available record and am in a position to state that Rule-3 of the Civil Servants (Confirmation) Rules, 1993 clearly states that confirmation of an employee initially appointed to a post on probation shall only be made against a permanent post. Even more intere sting is Rule-4 of the said Rules which rules out automatic confirmation and provides a method and regime for the purpose of confirmation. Hence, confirmation in service or for that matter gaining permanence in service is not automatic but is subject to further administrative action delineated in Rule-4 of the Civil Servants (Confirmation) Rules, 1993. Rule 5 of the Civil Servants (Confirmation) Rules, 1993 which speaks about lien is only triggered and comes into play when once an employee gains confirmation in a permanent post. But as will unfold these Rules are not germane to the present controversy!
10. In terms of the applicable legal regime an employee working with and in the Federal Government can only claim lien if the two riders of confirmation or permanence in respect of a permanent and not a temporary post are met. In the matter before this Court the petitioner is faced with the twin hurdles of being a temporary employee throughout the eight years that he served the Pakistan Atomic Energy Commission and that, too, against a purely temporary post. In this view of the matter , the petitioner cannot claim lien because he fails to pass both tests prescribed by the Rules in question.
11. However , the most crucial question that begs attention is whether the petitioner is a civil servant? The Rules of 1993 being applicable only in the case of civil servants!
STATUS OF THE PETITIONER'S EMPLOYMENT WITH P AEC:
12. Pakistan Atomic Energy Commission (PAEC) is a Strategic Organization in terms of Section 2(d) of National Command Authority Act, 2010 ("the Act, 2010"): "2(d) "Strategic Organization" means such body notified by the Authority to be a Strategic Organization and includes Pakistan Atomic Energy Commission Dr A.Q. Khan Research Laboratories (KLR) and Space and Upper atmosphere Research Commission "
13. As per Section 9(1) of the Act, 2010, employees of all Strategic Organization are employees of National Command Authority, which Authority, as per Section 7(d) and Section 9(2), prescribes and regulates terms and conditions of service of such employees. Section 9(3) of the Act, 2010 reads as under: Te Bo "9(3) The Authority shall categorize the matter of services of the employees on the basis of the sensitivity of the functions and then shall frame rules, criterion, assessment basis for each set of employees and no employee shall gave a vested right for ant post, assignment, emoluments, promotion, privileges, transfer , deputation etc.
14. Section 21 of the Act, 2010 specifically provides for overriding effect of the Act, 2010 and by express words excludes the operation of the Civil Servants Act, 1973 and of "any other law or rules made thereunder for the time being in force and applicable to Strategic Organizations."
"21. Act of override other laws. The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any law for the time being in force particularly Civil Servants Act, 1973 (LXXI of 1973) or Pakistan Atomic Energy Commission Act, 1965 (XVIIoof 1965), or the Pakistan space and Upper Atmosphere Research Commission Ordinance, 1981 (XX of 1981) or any other law or rules made thereunder for the time being in force and applicable to Strategic Organization."
15. In 2016, a proviso to Section 15 of the Act, 2010 was inserted and the said Section now reads as under: "15. Power to make Rules.- The Authority may make rules for carrying out the objectives of this Act.
"Provided that notwithstanding anything contained in any judgment decree, order , direction or declaration of any Court including the Supreme Court of Pakistan or in this Act or in any other law for the time being in force, the rules, instructions or employees and strategic organizations of the Authority shall be non-statutory unless approved by the Federal Government and Published in the Of ficial Gazette of Pakistan. "
16. Various sets of Rules framed under Section 15 of the Act, 2010 govern the employment of the Petitioner with PAEC, in respect of which employment lien is claimed by the Petitioner. Such Rules include Employees Service Rules, 2011 (Revised), Employees Service Regulations, 2007 (Revised), Service Regulations National Command Authority, 2004, Employees Efficiency and Discipline Rules, 2010, Leave Rules, 2016, NCA Employees (Appeal)
Rules, 2019. The operation of Civil Servants Act, 1973 is expressly excluded (Section 21 above) and any grievance regarding terms and conditions of Service of the Petitioner is to be dealt with under the rules framed under the Act, 2010.
17. Such Rules have been declared as non-statutory by a Full Bench of Hon'ble Islamabad High Court and claim of any right in respect of such employment has been pronounced to be governed under the principle of "master and servant" and hence, out of the ambit of Article-199, diverting this Court of jurisdiction to take cognizance of any such claim, let alone adjudicate upon its validity or otherwise.
18. In "Waqas Rafi Awan vs. National Engine ering and Scientific Commission Islamabad through Chairman & 2 others" (2021 PLC(C.S.) 1309), it has been held as follows: "8. The Bill for the Amendment Act was introduced in the Majlis-e-Shoora (Parliament) by the then Minister for Defence. The latter had described the object and reasons for the proposed amendments as follows:- "It is necessary and expedient to amend the National Command Authority Act, 2010 (V of 2010) (hereinafter the Act) to provide more clearly that the Federal Government shall ensure provision of funds and to further reiterate the original intent of the NCA Ordinance, 2007 and NCA Act, 2010 that the employees in service of the Authority are not civil servants and that legal relationship of the Authority with its employees is governed under the doctrine of master and servant and further the proposed amendment shall also prevent the abuse of legal process in respect of affairs of state."
23. ............. We, therefore, declare that the effect of the insertion of the proviso in section 15 of the Act of 2010 is to acknowledge the intent of the Majlis-e Shoora (Parliament) regarding the relatio nship of the Authority with its employees. The relationship will be governed by the principle of 'master and servant' and the rules regulating the employees and their terms of service will continue to enjoy the status of being non statutory unless two specific conditions are fulfilled i.e approval by the Federal Governmen t, meaning the Federal Cabinet and its notification in the official gazette. It is noted that these two conditions are for the purpose of clarity and does not impose a binding obligation on the Federal Government to give its approval. The Federal Government may or may not alter the non-statutory status of the rules by giving approval and thereafter notifying it in the official gazette. We have been informed that neither the Federal Government has given its approval nor intends to do so.................We, therefore, in consonance with the legislative intent hold that matters relating to the employment of persons in the service of the Authority, which includes the notified Strategic Organizations, are governed under non statutory rules and, as a consequence, the grievances are not amenable to the jurisdiction of a High Court under Article 199 of the Constitution. ......."
19. It is crystal that the petitioner has never been a civil servant and, therefore, the Rules of 1993 made by way of delegated legislation in terms of Section 25 of the Civil Servants Act, 1973 are not applicable in his case.
ENTITLEMENT T O CLAIM LIEN OVER A POST BY A TEMPORAR Y EMPLOYEE: 20.The Indian Supreme Court in AIR 1989 SC 1985 "Ramlal Khurana (Dead) By Lrs vs State Of Punjab & Ors" described the concept of lien in state services as follows: "8. .............. Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointe d. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no Government servant can have simultaneously two liens against two posts in two different cadres. It is a well-accepted principle of service jurisprudence."
21. In (1997) 8 SCC 460 (Life Insurance Corporation of India v. Raguvendra Sheshgiri Rao Kulkarni), the Indian Supreme Court, it has been held as follows : "The period of probation is a period of test during which the work and conduct of an employee is under scrutiny.. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post.......
22. In a judgment of the Hon'ble Supreme Court of Pakistan reported as "Syed Sajjad Hussain v. Secretary , Establishment Division, Cabinet Secretariat, Islamabad and 2 other" (1996 SCMR 284), it has been held that it is only a permanent civil servant who could claim lien on his previously held permanent post and that a confirmed government servant holding a substantively permanent post would retain lien in respect of that post. In this view of the matter, a temporary employee, irrespective of his length of service, employed against a temporary post hardly fulfills the criteria for being allowed lien.
23. In "Ghulam Kadar v. Deputy Commissioner , Larkana and 9 others" (1976 PLC(CS) 86) it has been held that it is only a confirmed civil servant who can lay a claim to lien and short of proof exhibiting confirmation in service the question of lien could not arise . In paragraph No.3 of the said judgmen t it has been held that lien in the parent department is kept by confirmed persons only. If a civil servant is working against a temporary vacancy he cannot keep his lien in his parent department and that, too, against substantive permanent posts. It has been further held in paragraph No.5 of the said judgment that, "lien means the title of a civil servant to hold substantively a post on which he has been confirmed. There is no cavil to the proposition that an employee on substantive appointment to any permanent post acquires a lien on that post."
24. It is clear from a perusal of the gove rning rules as also precedent cases that only a permanent civil servant appointed against a permanent post can stake a claim to lien in respect of that post and not an employee such as the petitioner who was appointed in a purely temporary capacity as also against a purely temporary post.
25. In AIR 1930 Cal 404 (Bimalacharan Bata byal vs Trustees For The Indian Museum on 15 March, 1929)
Calcutta High Court , it has been held as follows: "11. I think that the words "substantive and permanent" as used in the service book import no more into the relationship between the plaintif f and the Trustees of the Museum than that his employment is of a permanent as opposed to a purely temporary character , and that he is the incumbent of his appointment and not merely "acting" and was entitled to the emoluments of it in such a way that, in the ordinary course, if his employment had continued ho would be entitled to and subject to all the rights and liabilities incidental to the service in accordance with the Civil Service Regulations. In other words, the phrase "substantive and permanent" is more descriptive of the nature and character of the appointment than indicative of the duration of that appointment. "
26. This judgment makes it clear that the right of retention of lien is a right attached to substantive appointment against a post. Such substantive appointment is referred to as confirmation of a Civil Servant in Civil Servants (Confirmation) Rules, 1993. The ascertainment whether the employment is substantive or not requires scrutiny of the nature of the appointment i.e. if the appointment made was a permanent one. This is significant since only when an appointment gains the status of permanence and only when such permanent employee is sent to some other department, he while still remaining a permanent employee of the parent department, can retain lien on the post at his parent department.
27. The claim of the Petitioner is not well founded on multiple counts: I. His appointment with PAEC was temporary in nature and hence, not being substantive i.e. permanent does not entitle him to claim any benefit attachekd with such substantive employment including the claim of any lien.
II. Lien is retained as long as an employee substantially remains part of formation of the establishment against which he claims lien. After leaving the employment of such establishment (PAEC), his employment effectively ends and so does any benefit attached to such employment.
III. The Petitioner is not a Civil Servant and is an employee of the National Command Authority . His employment with such Authority is governed by the principle of Master and Servant; the rules governing his terms and condition of service being non-statutory in nature he cannot invoke Article-199 of the Constitution for any grievance arising out of such terms and conditions.
28. Having held what has been observed above, this Court is also convinced that there is no legally justiciable right of the petitioner at stake which has been infringed and for which the petitioner can have resort to the remedy afforded by Article 199 of the Constitution. The Supreme Court of India in AIR 1958 SC 36 has held that, "a person can be set to acquire a lien of a post only when he has been confirmed and made permanent on that post and not earlier and that a government servant holding a post temporarily does not have any right to hold the said post."
29. In this view of the matter , both, in terms of the governing legal regime as also precedent cases, no legally justiciable right of the petitioner is at stake so as to warrant interference in constitutional jurisdiction. Constitutional jurisdiction can only be employed to claim redress in respect of an existing legally justiciable right and not with respect to a right that is sought to be established. This is trite and if any authority is required reliance with advantage may be placed on "Asadullah Mangi and others v. Pakista n International Airlines Corporation and others" ( 2005 SCMR 445 ).
30. The Indian Supreme Court in (1997) 8 SCC 460 "Life Insurance Corporation v. Raguvendra Kulkarni" has lucidly observed that the employment of a permanent employee and that of a temporary employee cannot be equated since a permanent employee cannot be shown the door abruptly without any notice or plausible cause and it is only in the case of substantive appointment to a permanent post that the civil servant so confirmed becomes entitled to hold lien in respect of the permanent post on which such civil servant has been confirmed.
31. In the matter before this Court, there is no evidence that the temporary emplo yment of the petitioner with the Pakistan Atomic Energy Commission against a purely temporary post was ever regularized or made permanent or for that matter confirmed. In the absence of any such proof the petitioner remained a temporary employee and as has been noted above a temporary employee has no right to lien especially when the post against which he has served is a temporary post.
32. In view of what has been noted above, this constitutional petition warrants no interference and is, accordingly, dismissed.