Asim Akram, Member. Through the titled appeal the appellant has challenged his repatiration order dated 23.12.2020 (The Impugned Order). A departmental appeal was filed on 09.2.2021 which was not responded by the respondents within the statutory period. Feeling aggrieved, the titled appeal was filed on 08.06.2021.
2. Prior to filing of the departmental appeal, the appellant approached Lahore High Court, Lahore in Writ Petition No. 5465 of 2021 wherein he prayed for setting aside the impugned order dated 23.12.2020. The writ petition was dismissed vide order dated 01.2.2021. The Hon'ble court while dismissing the said petition observed that jurisdiction of the High Court is barred under Article 212 of the Constitution, 1973. It was further observed that the appellant may avail his remedy by way of representation/appeal before the appropriate forum. A departmental appeal was filed after the above referred order on 09.2.2021 which was not responded. Resultantly the appellant filed the titled appeal.
3. The appellant contended that the impugned order has been Passed with malafide intention and without any compelling reason. He further contends that the Respondent No. 2 appears to be vendictive, illegal unlawful, arbitrary, whimsical, and poles apart to the fairness. He has further stated that he has not been paid. Deputation allowance, Ph.D. allowance from 21.07.2020 to 31.1.2020, he also claims TA & D.A and residence allowance for the period 01.08.2020 to 12.10.2020.
The appellant further argued that the impugned order is a non-speaking order which is the requirement of Section 20 of General Clauses Act. In support of his arguments the appellant referred to Syed Mehmood Akhtar Naqvi and others vs Federation of Pakistan and others (PLD 2013 SC 195) (Aneeta Turab case). He prayer for acceptance of the titled appeal by setting aside the impugned order.
4. The learned AAG has opposed the appeal on the ground that the appellant is a BS-18 officer of the Ministry of Information and was placed at the disposal of Ministry of Railways on deputation w.e.f. 21.07.2020 and repatriated to the cadre on 23.12.2020. He further states that according to deputation rules the lending organization has right to recall the deputatinists. Also, under proviso of Section 22 (2) of Civil Servants Act, 1973, no representation shall lie on the, matters relating to determination of fitness of a person to hold a particular post. Since while passing the impugned order no Illegality has been committed by the respondents, therefore, it is prayed that the appeal at hand may be dismissed being filed without any cogent reasons.
5. Arguments heard and record perused.
6. The foremost question under consideration in the titled appeal is whether an order of repatriation can be challenged. Repatriation is calling back a person who is on deputation. The definition of deputation and the conditions that apply to the selection and posting of a civil servant on deputation was elucidated by Islamabad High Court in W.P. No. 194/2020 titled "Nusrat Rasheed vs. Federation of Pakistan, etc." as follows: "Section 1(2) of the Civil Servants Act. 1973 provides that the said Act shall apply to all civil servants wherever they may be. Under Section 2(b)(i) of the said Act, a person who is on deputation to the Federation from any Province or other Authority has been excluded from the definition of the term "civil servant." The term "deputation" has neither been defined in the Civil Servants Act, 1973 nor in any of the rules made thereunder. In the cases of Islamic Republic of Pakistan vs. Israr ul Haq (PLD 1981 S.C. 531), Muhammad Arshad Sultan, Section Officer, Cabinet Division vs. Prime Minister of Pakistan, Islamabad (PLD 1996 SC 771) and Province of Punjab vs. Ikram-ul-Haq (1986 SCMR 1994). The Hon'ble Supreme Court referred to and endorsed the meaning given to the term "deputation" in Chapter IX of the Establishment Manual, Volume I (O&M) and Serial No. 29 of the Establishment Code (1989 Edition) which is reproduced herein below:- "Hitherto, the term "deputation" has not been formally defined. However, according to the practice in vogue a Government Servant begins to be regarded as a "deputationist" when he is appointed or transferred, through the process of selection, to a post in a department or service altogether different from the one to which he permanently belongs. He continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post.
This is the definition of the term "deputation" accepted by the Superior Courts. In the case of Province of Punjab vs. Ikram-ul Haq (supra), it was held inter alia that the said interpretation of the term "deputation" has the effect of a statutory rule. It was also Field that the Hon'ble Supreme Court had accepted the said definition of the term "deputation" in the case of Islamic Republic of Pakistan vs. Israr ul Haq (supra)."
7. The term deputation is only once used in Civil Servant Act, 1973 in Section 2(b) which defines civil servant as a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include (i) a person who is on deputation to the Federation from any Province or other authority ..." A deputationist is thus excluded from the definition of a civil servant and merely, by virtue of serving against a post ordinarily held by a civil servant, the employment status of a deputationist doesn't change to that of a civil servant. The appellant was on deputation with M/d Railways and through the present appeal he has challenged the impugned orders which is a repatriation order and being deputationist he is-excluded from the definition of civil servant and looses the right to approach the Service Tribunal.
8. Posting and transfer is governed by Section 10 of Civil Servant Act, 1973. The rulings of superior courts on the question are reproduced below:-
(1) Syed Afzal Ahmad Hydari vs. Secretary Ministry of Defence Production Division (1991 SCMR 477).
"Section 10 of the Civil Servants Act, 1973, in clear and unambiguous term says that every Civil Servant shall be liable to serve anywhere within or outside Pakistan in any position under the Federal Government or the Provincial Government or a local authority. We are therefore of the view that the petitioner could be transferred to work in any post under the Federal Government, without his consent"
(2) Peer Mohammad vs. Government of Balochistan (2007 SCMR 54).
"No legal right of the petitioner has been infringed. A desire simpliciter cannot be equated to that of a legal right... It is well-settled by now that the question of posting of a Government servant squarely, falls within the jurisdictional domain of the Competent Authority subject to law -and rules made thereunder. The question of posting/transfer relates to terms and condition of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved."
(3) Dr. Shafi ur Rehman Afridi vs. C.D.A through Chairman and others (2010 PLC (CS) 367)
7. We may mention here that the deputationist by no stretch of imagination and in absence of any specific provision of law can ask to serve the total period of deputation and he can be repatriated being a deputationist by the Competent Authority in the interest of exigency of service as and when so desired and such order of the competent authority cannot be questioned. The Civil Servants Act, 1973 and rules made thereunder as well as Estacode are silent about the fact that a deputationist must serve his entire period of deputation and this omission seems deliberate enabling the Competent Authority to utilize the service of an employee in the manner as it may deem fit and proper. The period of deputation can at the best be equated to that of an expression of maximum period which can be curtailed or extended by the Competent Authority and no legal or rested rights whatsoever are available to a deputationist to serve his entire period of deputation in the borrowing Department."
(4) Contempt proceedings against Chief Secretary, Sindh and others. (2014 PLC (CS) 82)
The procedure provided under the ESTACODE requires that a person who is transferred and appointed on deputation must be a government servant and such transfer should be made through the process of selection. The borrowing Government has to establish the exigency in the first place and then the person who is being transferred/placed on deputation in Government must have matching qualifications, expertise in the field with required experience. In absence of these conditions, the Government cannot appoint anyone by transfer on deputation.
(5) S. Masood Abbas Rind vs. Federation of Pakistan (2014 SCMR 799)
It is a settled principle that a deputationist does not have any rested right to remain on the post as deputationist forever or for a stipulated period, he could be ordered to be repatriated to the parent department at any time without assigning any reason. The parent department of the deputationist is not obliged in law, to assign reasons for his repatriation.
From the perusal of the above referred rulings of the Apex Court it is stalled principle that deputationist does not have any vested right to remain on the post as deputationist forever or for a stipulated period.
9. In the titled appeal and the arguments of the appellant as well as the judgment of Aneeta Turab case referred by the appellant he has considered deputation as a transfer whereas the deputation is way apart to transfer and posting. A government servant is sent on deputation on demand by the borrowing department and when the demand expires or the borrowing department is unwilling to continue with the services of the deputed officer the same is repatriated to its parent department. The counsel for the Respondent No. 2, Pakistan Railways, where the appellant was posted on deputation, states that the appellant has tried to create disputes between two Ministries and the matter was referred to Secretary. Information to make appropriate orders and in light of this request, the appellant was repatriated to his partent department.
10. In light of the arguments referred above we are of the opinion that an order of repatriation cannot be challenged before the Service Tribunal in a service appeal. Also, the appellant has failed to point out any illegality in passing of the impugned order dated 23.12.2020. The titled appeal lacks merits and is hereby dismissed.
11. There shall be no as to costs parties be informed.