Shujaat Ali Khan, J: - Briefly the facts, forming factual canvass of this petition, are that the petitioner, while serving as Officer Grade-I in National Bank of Pakistan (the Bank), was posted as Member Financial Crimes Investigation Wing, National Accountability Bureau (NAB) Punjab, Lahore, on secondment/attachment basis, pursuant to the approval by the President of the Bank through communication, dated 02.01.2006. The petitioner served NAB on deputation/ secondment basis till 28.12.2012. During his posting in NAB, the petitioner's performance was gauged as outstanding while recording remarks in his Annual Performance Appraisal (APA).
In view of his satisfactory performance in NAB, he was promoted as Assistant Vice President (AVP), on 01.01.2009. His further promotion against the post of Vice President was due on 01.01.2012 but he was not promoted due to lack of required threshold in the APAs. Being aggrieved of non- consideration of evaluation done by NAB authorities in his APAs for the years 2007 to 2012 and non- promotion against the post of Vice President, the petitioner filed Writ Petition (No.5373 of 2016) before this Court which was disposed of through order, dated 05.07.2017. Though the petitioner was promoted against the post of Vice President but his other grievances were not redressed, as a result, he filed Writ Petitions (Nos.25596/2019, 24262/2020) in addition to Contempt Petition (Crl.
Org. No.7647-W/2020) which were disposed of through orders, dated 13.10.2023, directing the petitioner to file representation before the President of the Bank, agitating all his left out grievances.
Pursuant to orders passed by this Court, the petitioner filed representation, on 23.10.2023, before the President of the Bank agitating multiple grievances. The President of the Bank rejected the same factum whereof was conveyed to the petitioner, through letter, dated 09.01.2024; hence this petition.2. The submissions made by learned counsel for the petitioner, at the rostrum and those presented in written form (paper book (Mark/A) containing precedent law, notifications, APAs and other documents), can be summed up in the words that since the petitioner remained posted in NAB on deputation basis, from the year 2006 to 2012, the competence to complete/initialize his APAs vested with the Director General NAB, being his supervisory officer, thus, the remarks recorded by DG NAB, in APAs of the petitioner, for the said period could not be revisited/substituted by the Bank authorities; that when the petitioner was held entitled to perks and privileges admissible to MTOs, he had vested right to receive the same but refusal on the part of the Bank authorities speaks loud about their mala-fide conduct; that since the petitioner was appointed in the Bank, on 12.04.1994, his terms & conditions of service are to be governed under the NBP Staff Service Rules, 1973 (the Rules, 1973); that according to Circular, dated 27.08.2021, OG-I/AVP are to be posted as Branch Managers whereas the Vice Presidents deserve to be posted as Regional Heads but posting of the petitioner as Branch Manager at a far-off place speaks loud about the personal vendetta of the respondents against the petitioner just on account of approaching this Court; that though the NAB authorities graded the performance of the petitioner under category-A but the same was unauthorizedly lowered down by the Bank authorities to category-C just to deprive him of the future service prospects; that mala fide conduct of the respondents is also evident from the fact that though the performance of the petitioner was gauged as outstanding but they substituted the same with lower category while completing his C.R. Dossiers; that contumacious conduct of the respondents is evinced from the fact that order, dated 05.07.2017, passed by this Court in W.P.
No.5373 of 2016, was not complied by them despite the fact that the same, having not been upset by any higher forum, still holds the field; that as per recitals of the letter relating to posting of the petitioner in NAB, on deputation basis, he was entitled to deputation pay/ allowance at the rate of 20% of the gross salary but the said amount has not been paid to him till date and that mala-fide on the part of the respondents is clear from the fact that they have not paid the entire amount of deputation pay even at the rate of 20% of the basic pay.
3. Learned counsel appearing on behalf of the Bank, while opposing the submissions made by learned counsel for the petitioner, contends that since the terms and conditions of service of the petitioner are governed under non-statutory service rules, instant petition is not maintainable; that as the petitioner was promoted as Vice President, w.e.f. 01.01.2015, the order passed by this Court in that regard stood complied with; that since the petitioner has already received emoluments admissible to MTO Officers, pursuant to compromise agreement, dated 20.07.2020, he has no cheeks to agitate said issue again, before this Court; that this Court through order, dated 10.03.2023, passed in W.P. No.51414/2022, has held that when an employee of the Bank receives a specific amount under a settlement, he cannot be allowed to claim anything in excess thereof and the said order having been upheld by a learned Division Bench of this Court has binding force; that since the petitioner has not challenged the vires of the Promotion Policy 2016, he cannot be promoted against a higher post in violation of the said policy; that after repeal of the Rules, 1973 by the Cabinet, the terms & conditions of service of the petitioner are being governed under non- statutory rules and that when the petitioner submitted Undertaking to the effect that he had no grievance against the Bank or its management he was estopped to file instant petition. To fortify his contentions, learned counsel has relied on the cases reported as Umar Asghar Qureshi and another v. Federation of Pakistan and 3 others (2024 PLC (C.S.) 640), Muhammad Saleem Awan and another v. National Bank of Pakistan through President and 2 others (2024 PLC (C.S.) 607), order, dated 08.05.2025, passed by a learned Division Bench of this Court in ICA No.27498 of 2025, titled Asif Ali Khatana v. National Bank of Pakistan etc. order, dated 10.04.2025, passed by this Court in W.P. No.6713 of 2022, titled Asif Ali Khatana v. National Bank of Pakistan etc., judgment, dated 16.10.2024, passed by this Court in W.P. No.45531 of 2022, titled Muhammad Akmal and others v. Federation of Pakistan and others and Writ Petition No.45065 of 2022, titled Qamar uz Zaman etc. v. Federation of Pakistan etc. and judgment, dated 06.03.2023, passed by the Islamabad High Court, Islamabad in W.P. No.3008/2021, titled All Pakistan NBP Officers Association etc. v. Federation of Pakistan etc. and other allied matters.
4. In exercise of their right of rebuttal, learned counsel for the petitioner submit that since the National Bank of Pakistan (Staff) Service Rules, 2021 (the Rules, 2021) have been declared ultra-vires by the Peshawar High Court, through judgment, dated 06.02.2025, passed in W.P. No.1418-P/2022, titled Muhammad Naeem, Assistant Vice President (AVP), National Bank of Pakistan, Nodeh Toru, Mardan v. Federation of Pakistan, through Secretary Finance, Government of Pakistan, Islamabad and others, the terms & conditions of service of the petitioner are to be governed under the Rules, 1973, which being statutory in nature, this petition is maintainable. Adds that as the Hon'ble Supreme Court of Pakistan in the case reported as Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCMR 314), has held that Writ Petition on behalf of employees of NBP is maintainable, thus, the cases referred by learned counsel for the respondents are inapplicable. Further adds that since petitioner was compelled to sign blank stamp paper, which was subsequently used for preparation of the acclaimed Undertaking, the same has no bearing upon the case of the petitioner.
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition and those forming part of the Paper Book (Mark-A), as well as the case-law, cited at the bar.
6. Firstly, taking up the objection of learned counsel representing the Bank against maintainability of this petition, I am of the view that there is no cavil with the proposition that if terms and conditions of service of an employee are governed under non-statutory rules, constitutional petition before this court is not maintainable but at the same time it is equally true that if rules governing terms and conditions of service of an employee are statutory in nature, jurisdiction of this court to entertain a matter on behalf of such employee cannot be abridged. As per the learned counsel, representing the Bank, the Rules, 2021, having been framed by the Board of Directors of the Bank, do not enjoy the statutory status. On the contrary, learned counsel for the petitioner has produced copy of judgment, dated 06.02.2025, passed by a learned Division Bench of Peshawar High Court in W.P. No.1418-P/2022, relevant part whereof reads as under: - "22. The above legal discourse leads us to the conclusion that Section 32(2)(xxviii) of the Ordinance of 1949 mandates the Central Board of Directors of NBP to frame bye-laws regulating the recruitment and terms and conditions of the employees of the NBP. The said legal provision is still part of the statute; therefore, the framing of any rules relating to the terms and conditions of the employees under bye-law 51 of the Bye-laws 2015 is obviously beyond the authority of the Central Board of Directors. Hence, it is not only ultra vires the Ordinance of 1949 but, in view of the law laid down by the Apex Court in the case of Sarhad Development Authority (supra), the Central Board of Directors of NBP as well as the Federal Government are bound to frame byelaws/rules in respect of the terms and conditions of the employees of NBP.
23. Turning to the validity of the respondents' actions following the repeal of the 1973 Rules: As outlined earlier, the 1973 Rules governed the terms and conditions of NBP employees and were given statutory status by the Apex Court in Muhammad Tariq Badr (supra). However, through Letter No. F.No.1(7)Bkg-III/2001-1953, dated 23.01.2015, the Finance Division communicated the Federal Government's approval of the revised NBP Bye-laws, which had been finalized in consultation with all stakeholders. Consequently, under S.R.O. (1)/2015, the NBP Board of Directors, with prior Federal Government approval, enacted the 2015 Bye-laws, repealing the 1970 Bye-laws through Bye-law 66.
Similarly, on 18.03.2021, the Cabinet Committee of the Federal Government approved the repeal of the 1973 Rules. This decision was subsequently placed before the Cabinet, which formally ratified the repeal on the same date.
24. It is an established principle, as encapsulated in Section 21 of the General Clauses Act, 1897, that any authority empowered to make an order also holds the authority to revoke it. However, in the present case, Section 32(2)(xxviii) of the Ordinance of 1949 explicitly mandates that the NBP Board of Directors is responsible for framing rules regarding the recruitment, terms, and conditions of service for the Bank's officers and staff. The Apex Court, in Tariq Badr (supra), has firmly established that the executive lacks the authority to annul, invalidate, or otherwise undermine statutory mandates (last three lines of Para-9 of the judgment in Muhammad Tariq Badr's case).
The same legal principle was reiterated in Sarhad Development Authority (supra). Consequently, the executive's repeal of the Rules of 1973 without enacting statutory rules contravenes both; Section 32 of the Ordinance of 1949 and the Apex Court's rulings in Muhammad Tariq Badr and Sarhad Development Authority. Therefore, the Federal Government's decision dated 18.03.2021 is unlawful and made without legal authority.
25. In view of what has been stated above, we hold and declare; i. Since the NBP Board of Directors lacks the authority to frame rules governing employee terms and conditions under Section 11 of the Act of 1974 and Bye-law 51 of the Bye-Laws of 2015, the National Bank of Pakistan (Staff) Service Rules, 2021, are thus ultra vires Section 32 of the Ordinance of 1949. ii. The Federal Government's decision dated 18.03.2021 to repeal the 1973 Rules is also without lawful authority and has no legal effect. Therefore, the respondents shall treat the petitioners in accordance with the Rules of 1973.
From above, it is vividly clear that not only the Rules, 2021, have been declared ultra-vires but also the repeal of the Rules, 1973 has been declared illegal meaning thereby that at the moment the terms & conditions of employees of the Bank are governed under the Rules, 1973, which as per the judgment of the Apex Court of the country, reported as Muhammad Tariq Badar and another (Supra), enjoy statutory nature; hence the objection against maintainability of this petition is spurned.
7. Learned counsel for the Bank has also challenged the maintainability of this petition on the ground that since the petitioner submitted Undertaking, on 12.12.2017, with the averments that all his grievances were settled, he was estopped to file the petition in hand. The referred Undertaking, for convenience of reference, is imaged below: - As per the afore-imaged Undertaking the same was submitted on 12.12.2017 wherein designation of the petitioner was mentioned as Vice President, ARD-North, National Bank of Pakistan, Lahore which suggests that he was promoted as Vice President prior to the said date. The said fact stands contradicted from the promotion letter of the petitioner as Vice President as the same bears the date as 13.12.2017, meaning thereby that on 12.12.2017, he was not promoted as Vice President. It is very painful that the President of the Bank with a view to show that the petitioner was promoted as Vice President prior to 12.12.2017, while passing the impugned, has inter-alia observed as under: - "In addition thereto, you vide letter dated 20.10.2017 have been promoted as Vice President with effect from 01.01.2015 with all perks and privileges and were granted 4 months' deputation allowance at the rate of 20% of the basic pay subject to maximum of Rs.6000/- per month."
(emphasis provided)
Since the above-quoted portion runs contrary to record, it cannot be used to believe that the petitioner was promoted as Vice President prior to 13.12.2017, thus he could not be treated as Vice President on 12.12.2017 notwithstanding the fact that his promotion was actuated w.e.f. 01.01.2015. In the given circumstances, the assertion of the petitioner that he was compelled to sign blank stamp paper which was subsequently used as an Undertaking on his behalf deserves due consideration.
Even otherwise, the Apex Court of the country in the case of Ikram Bari and 524 others v. National Bank of Pakistan through President and another (2005 SCMR 100), while dilating upon the consequences of an undertaking by an employee relinquishing his right, has inter-alia held as under:- "15. An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic 'justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meagre emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees.
In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to 'have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/ regularization of the employees. By Article 2-A of the Constitution, which has been made its substantive part, it is unequivocally enjoined 'that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right. The principle of policy contained in Article 38 of the Constitution also provide, inter alia, that the State shall secure the well being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers and 'employees and provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood and reduce 'disparity in income and earnings of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the elimination of all forms of exploitation and the gradual fulfilment of the, fundamental principle, from each according to his ability, to each according to his work. It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank. In the case of Pakistan v. Public at Large PLD 1987 SC 304, it was contended before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant and thus they involved his consent. It was observed that in fact it as not in the nature of a free consent between the agents. On the one hand, State power was projected in the form of a Statute and on the other, the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed. In Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 37, it was held that the employer being placed in a position of authority and strength could always coerce employees to waive their legal protection and accept, contractual terms at the pains of losing his job."
If the fate of the referred Undertaking is considered in the light of the afore-quoted judgment, there leaves no doubt that the same being dubious in nature cannot be used against the petitioner especially when the petitioner remained en-locked in multiple litigation with the Bank.
8. Considering from another angle, it is the stance of the thus, he was debarred to approach this court. To appreciate the plea of the Bank, I have gone through the letter relating to the promotion of the petitioner which, for convenience of reference, is imaged below: - The above-imaged Promotion Letter of the petitioner does not entertain any ambiguity that he was promoted upon fulfillment of required eligibility criteria and there is no reference to the acclaimed settlement; hence, the plea of the Bank that he was promoted as Vice President as a result of some settlement with the Bank, cannot be given any weightage.
9. Now reverting to merits of the case, I have observed that while contesting the claim of the petitioner for payment of dues on account of non-MTO, the Bank has relied upon compromise agreement, dated 20.07.2020 (Annexure-R/2 with report and parawise comments submitted on behalf of the Bank), which, for convenience of reference, is imaged below: - As per clause 6 of the afore-imaged compromise agreement, the compromise between the parties was subject to withdrawal of Writ Petition No.171031/2018 and the Contempt Petition, if any, within thirty days and in the event of non-fulfilment of said condition by the petitioner, the compromise was to be revoked automatically. It is well settled by now that a conditional/ contingent agreement or compromise or contract loses its efficacy if the stipulated condition is not fulfilled by either side within the prescribed period and nobody can claim its enforcement. If any case-law is required, reference can be made to the case of Muhammad Anwar v. Muhammad Aslam and others (2012 SCMR 345) wherein the Apex Court of the country has inter-alia been held as under: - "15. We are not impressed by the contention of the learned counsel. We have noticed that contract of such a nature is covered by the definition of 'contingent contract' in terms of section 31 of the Contract Act, 1872. Section 32 of the said Act provides how contingent contracts are enforceable in law. The law allows enforcement of a contingent contract, after the event upon which it was contingent, has happened. In order to seek enforcement of a contingent contract, the party suing to enforce an obligation, which is conditioned upon the occurrence of an event, has to only establish that the event has occurred in a manner contemplated by the contract for the obligation to arise."
Further, the High Court AJ&K in the case of Ashfaq Ahmed and 6 others v. Ch. Maqbool Raza and 4 others (2008 CLC 1340) while highlighting the consequences of a contingent contract in absence of fulfillment of the condition has inter-alia held as under:- "After perusal of section 31 of the Contract Act, in light of the above precedents, I am of the considered view that the test to determine as to whether a contract is `contingent' or `absolute' is that if there is mere stipulation in the agreement-to-sell that the sale-deed would be executed after obtaining permission from any public functionary then such a condition is not collateral to the contract and the contract cannot be construed as a `contingent' contract because the condition was forming the part of the consideration. However, where vendor is not in possession of the absolute title and execution of the sale-deed depends upon the grant of proprietary rights by the Government then such a contract could be declared as `conditional' or `contingent', as has been opined in the Tribhuban Parkash Nayya r v. The Union of India AIR 1970 SC 540."
Insofar as the case in hand is concerned, a perusal of the file shows that the petitioner did not withdraw the aforesaid Writ Petition rather the same was disposed of by this Court vide order, dated 13.04.2018, and matter was referred to the Secretary, Government of Pakistan, Finance Division, Islamabad which fact has duly been noted on the first page of the impugned order. It is very strange to note that implementation of the compromise agreement was subjected to withdrawal of the writ petition which was decided prior to execution of compromise agreement which fact is sufficient to believe that the conduct of the Bank authorities throughout the proceedings was not above the board.
10. It is matter of record that contempt petition (Crl.Orig.No.7647/W/2020) filed by the petitioner against the Bank authorities, on 08.02.2020, was disposed of alongwith other matters through order, dated 13.10.2023, meaning thereby that condition regarding withdrawal of contempt petition within one month, as postulated under clause 6 supra, remained unfulfilled, hence, the compromise agreement stood revoked automatically and any step taken by either side in pursuance to the said compromise agreement was inconsequential. In this backdrop, reliance of the respondents on the compromise agreement is misconceived.
11. Though, learned counsel representing the Bank addressed the Court at reasonable length but has not been able to convince this Court as to how the said agreement/compromise had binding force upon the parties especially when the condition stipulated therein remained unfulfilled on the part of the petitioner.
12. While opposing the prayer of the petitioner regarding his posting as per Circular bearing No.237/2010, dated 26.10.2010, learned counsel representing the Bank took specific plea that the referred Circular only envisages minimum qualification/criteria for posting against different seats in the Bank. There is no cavil with the fact that in the Circular, under discussion, minimum criteria has been chalked out for posting against a particular post but the said fact cannot be used to deprive the petitioner of his posting as Regional Head or Manager of a renowned Branch in a metropolitan city. As per organizational Circular No.21/2021 the post of Regional Head is to be filled in from amongst the Vice Presidents and Senior Vice Presidents. Moreover, as per said Organizational Circular, the post of the Regional Executive is also to be filled in from amongst Assistant Vice Presidents/Vice Presidents (Regional Management). The petitioner, being the Vice President since the year 2015, cannot be held disentitled for posting as per Organizational Circular, under discussion. Indifferent attitude of the respondents is established from the fact that Organizational Circular apart, they showed scant regard to the courts' orders. To fortify said fact, reference can be made to order dated, 11.03.2021, passed by this Court in Writ Petition No.25596/2019, which for facility of reference is reproduced herein below: - "11.03.2021. Mian Bilal Bashir, 13.Advocate for the petitioner. Mr. Abid Hussain, Assistant Attorney General. Mr. Umer Abdullah, Advocate for NBP.
MAIN CASE & C.M. No.2/2019, 3/2020, 1/2021 & 3/2021.
Learned counsel for the petitioner submits that mala-fide on the part of the respondents is evident from the fact that though the petitioner is serving as Vice President (V.P.) but he has been compelled to serve under the Assistant Vice President (A.V.P.) which is not permissible in ordinary course; that with a view to pressurize the petitioner to dissuade from the proceedings filed before this Court, a person junior in rank has been allowed to complete his Annual Performance Appraisal; that instead of posting the petitioner against his post he has been made a rolling stone whereas his juniors have been deputed against lucrative posting; that though other similarly placed persons have been paid outstanding emoluments on account of M.T.O. and Non-M.T.O. dues but the petitioner has not been paid the entire amount; that though Mr. Adil Rasheed Bhatti A.V.P. was not member of Joint Investigation Team (J.I.T.), constituted by the National Accountability Bureau (NAB) but even then he has been posted against the post of BSSM at DHS T-Block Branch, Lahore under the garb that he is member of J.I.T. despite the fact that he is not eligible for posting against the said post.
2. Mr. Umer Abdullah Advocate, while controverting the contentions urged by learned counsel for the petitioner submits that since Mr. Adil Rasheed has been appointed as BSSM in the above- referred branch on stop-gap arrangement, no illegality has been committed by the competent authority. Adds that plea of the petitioner that Mr. Adil Rasheed was not member of J.I.T. is against the record. To fortify his contention, learned counsel has referred to Office Order, dated 24.05.2018, wherein name of Mr. Adil Rasheed Bhatti has been mentioned in the list of members of J.I.T. Argues that the respondents are ready to appoint the petitioner against the post of V.P. but he cannot ask for posting of his choice at a particular station. While replying to Court's query as to how Annual Performance Appraisal can be completed by a subordinate of the petitioner, learned counsel representing the Bank submits that he has instructions to make statement to the effect that Annual Performance Appraisals of the petitioner would be completed by the Regional Head instead of A.V.P. While replying to contention of learned counsel for the petitioner regarding M.T.Os and Non- M.T.Os dues learned counsel representing the Bank states that as a matter of fact out of court settlement was arrived between the parties and after receiving the dues the petitioner has also tendered his affidavit to the effect that nothing is outstanding against the Bank.
3. In exercise of his right of rebuttal, learned counsel for the petitioner submits that appointment of Mr. Adil Rasheed Bhatti against the above post under the garb of J.I.T. by NAB stands belied from the fact that J.I.T. has already been declared illegal by this Court on 15.03.2019, thus, there is no need for the competent authority to continue posting of the said person on stop gap arrangement; that since the Bank authorities did not abide by their commitment under the agreement, being referred by learned counsel for the Bank, the petitioner cannot be bound down to comply with the same as he signed the said papers under coercion and undue influence.
4. In view of the above, the President National Bank of Pakistan, Karachi (respondent No.2) is directed to ensure posting of the petitioner against the post of V.P. before the next date of hearing and learned counsel representing the Bank shall produce copy of requisite order on the next date of hearing. Further, respondent No.2 shall ensure completion of Annual Performance Appraisal of the petitioner from the date of promotion of the petitioner as V.P. by the Regional Head and shall submit compliance report before the next date of hearing.
5. Office is directed to transmit a copy of this order to respondent No.2, through fax, for information and compliance.
From above, it is crystal clear that President of the Bank was directed to post the petitioner against the seat earmarked for Vice President but till date, the petitioner is striving hard for his due posting.
If such an approach is allowed to be followed, perhaps not only the overall output of the Bank would be adversely affected but also it would be source of recurring heart burning for the employees of the Bank. There is no cavil with the fact that nobody has a vested right for posting of his choice but at the same time an employee cannot be deprived of his right of due posting as per policy of the department. A perusal of the impugned order shows that the management of the bank on the dint of various compromises/undertakings tried to dissuade the petitioner from the proceedings filed before this Court. The said fact leaves no doubt that the management of the Bank, being not happy with the petitioner on account of filing multiple proceedings before this Court, has kept him aloof from his vested service prospects despite the fact that every citizen has a right to approach the forum concerned for redressal of his grievance and no adverse opinion can be formed against him mere on account of filing legal proceedings.
14. During the course of arguments, learned counsel representing the Bank ferociously argued that since there are more than 100 Vice Presidents in the Bank, it is not possible to post all of them as Regional Heads and Regional Executive. In this regard, I am of the view that if number of Vice Presidents is more than the posts of Regional Heads and the Regional Executives, there should be reasonable criteria for making posting against said seats. For the purpose, the management of the Bank can follow the principle of seniority while making posting against said seats and if anybody from amongst the Vice Presidents cannot be adjusted against the referred seats, he can be accommodated by posting in a renowned branch of a metropolitan city but management of the Bank cannot be given unbridled powers to tinker with the career of its employees by adopting cherry picking formula while making postings/ transfers against important portfolios especially when specific policy regarding posting/transfer is already in the field.
15. Now taking up the plea of the petitioner regarding grading in his APAs, I have noted that the petitioner remained posted in NAB on deputation from the year 2006 to 2012 and for the said period the APAs of the petitioner were to be completed by the Director General NAB and the Bank authorities, being alien to the said process, could not substitute the remarks of the Reporting Officer of the borrowing department. A perusal of the APAs of the petitioner for the years 2008 to 2012 show that he was graded under category-A but while considering the petitioner for benefits during the said period he was considered under category-C. Though learned counsel for the bank has assisted the court at great length but has not been able to justify as to how Bank authorities could substitute the grading of the petitioner in APAs by the Director General NAB.
16. It is astonishing to note that NAB authorities sent APA of the petitioner for the year 2010 to the Bank through letter No.62/1/Bank-S-62/NAB-65-67, dated 11.01.2011, but Bank authorities instead of incorporating the same in his CR Dossiers unauthorizedly prepared duplicate APA of the petitioner for the said period without considering that the same was inconsequential without the signatures of the petitioner. Maladministration on the part of the Bank management is clear from the fact that while preparing duplicate APA of the petitioner for the year 2010 it showed that at the relevant time the petitioner was posted in Main Branch of the Bank at Lahore despite the fact that he was serving in NAB at the relevant time. To fortify said fact, reference can be made to the APA of the petitioner prepared by the Bank for the year 2010 which for convenience of reference is imaged below: The above-imaged document stands proof of the fact that when the Director General, NAB found the performance of the petitioner as outstanding, the Bank authorities, with a view to lower down his performance, proceeded to prepare parallel APA while mentioning that, he being posted in Main Branch, Lahore, was under the control of the Chief Manager. The said act of the Bank authorities being criminal one cannot be let unnoticed.
17. It is also relevant to note that in the APA for the year 2012, the petitioner was rated under category-C by the Reporting Officer, however, the said rating was changed to category-B by the Regional Head of the Bank being the Countersigning Authority. To exemplify said fact, reference can be made to the APA of the petitioner for the year 2012, which for the purpose of reference, is imaged below:- The recommendations/findings of the SVP/Regional Head upon the afore-imaged APA of the petitioner for the year 2012 render it crystal clear that rating of the petitioner was changed from category-C to category-B but according to the petitioner he was considered under category-C at the time of consideration for service benefit. Though, the impugned order has been passed while considering the stance of the petitioner and that of the Bank authorities but no reason for such inhuman treatment towards the petitioner has been given.
18. Admittedly, this Court while deciding Writ Petition No.5373/2016 through order, dated 05.07.2017, directed the President of the Bank to ensure completion of the APA of the petitioner for the year 2014 by the concerned Supervisory Officer as the APA of the petitioner for the said year was not signed by his Reporting Officer, namely, Saeeda Jalal (VP/Manager). Reference in this regard can be made to the following portion from order, dated 05.07.2017:- "15. For what has been noted above, I have no hesitation to hold that errors/omissions/illegalities committed by the Bank authorities while dealing with his matter regarding APAs sent by the borrowing institution viz. NAB. Further, the petitioner was discriminated while considering for promotion against the post of Vice President inasmuch as the competent authority did not consider that on the one hand the persons serving on deputation/secondment/attachment specifically referred in C.M.No.8/2016. Consequently, instant petition is disposed of with a direction to the Office to transmit a copy of this petition alongwith all its annexures (including miscellaneous applications) to the President, National Bank of Pakistan (respondent No.1) who shall treat it as representation on behalf of the petitioner and shall decide the same in line with the afore-quoted observations of this court by or before 31.08.2017. The said respondent shall also see as to whether APA of the petitioner for the year 2014 was completed by his concerned Supervisory Officer or somebody else and if the answer is in negative, he shall arrange for his completion of his APA by the concerned Supervisory Officer and shall also initiate proceedings against the unauthorized person involved in completion of said APA. Further, in the wake of above observations the petitioner shall also be considered for perks and privileges, including 20% deputation allowance and promotion against higher posts, for which he is eventually found entitled." (emphasis provided)
The afore-quoted portion from the order of this Court entertains no ambiguity that the President of the Bank was directed to ensure completion of the APA of the petitioner for the year 2014 by the Supervisor Officer concerned but contemptuous conduct of the Bank authorities is established from the fact that they did not get it completed from Ms. Saeeda Jalal (the then VP/Manager).
Moreover, according to the petitioner his performance, during the year 2014, is being considered in category-C on the basis of APA which did not bear the signatures of the above-named Reporting Officer. In the given circumstances, the observations in the impugned order that the petitioner was treated fairly run contrary to the record rather personal bias on the part of the Bank authorities is floating on the surface of the record.
19. A perusal of the APA of the petitioner for the year 2016 shows that the petitioner was graded as Very Good by the Reporting Officer. To fortify said fact reference can be made to the APA of the petitioner for the year 2016 which is imaged below: - The above APA of the petitioner unambiguously spells out that the performance of the petitioner was gauged as Very Good by the Reporting Officer but through letter, dated 21.08.2017, he was conveyed that in the APA-2016 his performance was rated as Good. To show indifferent attitude of the Bank authorities towards the petitioner, communication, dated 21.08.2017, is imaged below:- If the contents of the APA for the year 2016 and communication, dated 21.08.2017, are considered while putting in juxtaposition, it becomes crystal clear that they do not coincide with each other. In routine, the contents of a conveying letter should commensurate with the remarks in the APA whereas it is a typical case wherein the rating of petitioner for the year 2016 was lowered down to Good in the communication letter as compared to Very Good grading in the APA for the said year.
The said important limb has not appropriately been dealt with by the President of the Bank in the impugned order despite the fact that the same was specifically agitated by the petitioner in his representation filed pursuant to the order of this court.
20. It is borne out from the record that the then Regional Head of the Bank was bound to complete the APA of the petitioner for the year 2020 but instead of performing his duty towards completion of the APA of the petitioner for the said year he got it completed/initialized from one Rana Aurangzeb Khan, VP/Regional Executive despite the fact that the petitioner never remained posted under his supervision and a Vice President cannot be Reporting Officer of other Vice President. The APA of the petitioner for the year 2020 is imaged below:- A cursory glance over the afore-imaged APA shows that not only the said APA was got completed/initialized from an irrelevant person but also the Regional Head, while assuming the role of Countersigning Authority in a self-styled manner endorsed the same. It is well settled by now that the Reporting Officer cannot assume the role of the Countersigning Authority and vice- versa. Moreover, the supervisory authority can initialize the APA of a subordinate and any remarks by an irrelevant person cannot be used against the employee concerned but in the matter of the petitioner said principle has been violated by management of the Bank with impunity.
21. This court is in agreement with the learned counsel for the respondent-Bank that in ordinary circumstances this court cannot interfere with the procedure/policy regarding completion of ACRs/APAs but when the ACRs/APAs have been completed by an irrelevant person or the grading of the employee is not considered in line with the remarks of the Reporting Officer or Countersigning Authority, such acts cannot be considered sacrosanct rather deserve to be discarded straightway. Though the petitioner specifically agitated the point, under discussion, but the President of the Bank did not utter even a single word in that regard.
22. Indisputably, Instruction Circular No.66/02, dated 28.10.2002, deals with revision of pay & allowance and other benefits of the Executives and Officers of the Bank. Clause 11 of said Instruction Circular, which relates to deputation pay, reads as under: - The above-imaged clause leaves to doubt that according to revised rate any officer of the Bank, posted in some other department on deputation basis, is entitled to deputation pay/ allowance @15% of the basic pay per month. There is no denying the fact that in the letter regarding posting of the petitioner on deputation basis it has been mentioned as 20% of the gross salary but firstly insertion of said rate might have been due to some inadvertence and secondly in presence of unequivocal clause 11 supra petitioner cannot be held entitled to monthly deputation pay @20% of the running pay. A bird's eye view over the representation, filed by the petitioner pursuant to the order of this Court, shows that he demanded payment of deputation pay for four years but in the impugned order the President of the Bank has observed that he has been paid deputation pay for four months. It is established from record that the Bank management posted the petitioner in NAB on deputation/secondment basis in the year 2006 and he remained posted there till 2012, thus, he was entitled to the deputation pay for the said period.
23. While going through the impugned order, I have observed that the President of the Bank instead of evaluating the claim of the petitioner and stance of the Bank management mainly decided the matter against the petitioner while pressing into service the Undertaking submitted by the petitioner despite the fact that this court referred the case of the petitioner to him (President) twice.
This court while deciding Writ Petition No.5373/2016, through order, dated 05.07.2017, noted serious omissions/commission on the part of the Bank management and referred the matter to the President to take measures for their eradication but instead of performing his statutory duty, seemingly he passed the impugned order on the basis of the information imparted by the Bank management which is not happy with the petitioner.
24. Now coming to the case-law, referred by learned counsel for the Bank I am of the view that the same is inapplicable to the facts and circumstances of the present case inasmuch as in the case of Umar Asghar Qureshi and another (Supra) the Writ Petition was held non-maintainable on the ground that Rules, 2021, were non-statutory in nature whereas the said Rules having been declared ultra-vires by a learned Division Bench of Peshawar High Court, the same are no more live, thus, the same cannot be used against the petitioner. Now coming to the cases of Muhammad Saleem Awan and another, order, dated 08.05.2025, passed by a learned Division Bench of this Court in ICA No.27498 of 2025, titled Asif Ali Khatana v. National Bank of Pakistan etc. and order, dated 10.04.2025, passed by this Court in W.P. No.6713 of 2022, titled Asif Ali Khatana v. National Bank of Pakistan etc., (Supra), I am of the view that the same are inapplicable to the case in hand simply for the reason that in none of the referred cases it has been held that when an employee of the Bank is on deputation in another department, remarks in his APAs by the supervisory authority in the borrowing department can be substituted by the Bank authorities while showing his posting in the Bank. Likewise, in none of the cases, under discussion, it has been declared that Bank management is not bound to implement order of the Countersigning Authority towards betterment of the rating of an employee in the APA as compared to that of the Reporting Officer. Similarly, in the referred cases it has nowhere been held that Reporting Officer can assume the status of Countersigning Authority. Now taking up judgment, dated 16.10.2024, passed by this Court in W.P.
No.45531 of 2022, titled Muhammad Akmal and others v. Federation of Pakistan and others and Writ Petition No.45065 of 2022, titled Qamar uz Zaman etc. v. Federation of Pakistan etc. I am of the view the same is of no help to the Bank as the objection against maintainability of said petitions was turned down by this Court through its findings contained in Para No.7, which for ready reference is reproduced herein below:- "7. Firstly taking up the question raised by the learned counsel representing the Bank against maintainability of these petitions, I am of the view that since the petitioners have not agitated their grievance relating to violation of any service rules, these petitions cannot be held non- maintainable, especially when the petitioners have filed these petitioner seeking implementation of the judgment passed by the Hon'ble Supreme Court of Pakistan, therefore, the objection raised by the learned counsel for the respondent Bank is hereby spurned."
As far as judgment, dated 06.03.2023, passed by the Islamabad High Court in W.P. No.3008/2021, titled All Pakistan NBP Officers Association etc. v. Federation of Pakistan etc. and other allied matters, is concerned, suffice it to note that since the Rules, 2021 have already been declared ultra- vires, the said judgment has also become irrelevant.
25. As a necessary corollary to the discussion, made hereinabove, I have no hesitation to hold that while deciding the matter of the petitioner, the President of the Bank misdirected itself and failed to clinch the issues, raised by the petitioner, in their true perspective. Consequently, this petition is partially allowed and the impugned order to the extent of payment on account of MTO/non-MTO charges; posting of the petitioner against the post of Vice President; correction of C.R. Dossiers of the petitioner for the years 2010, 2012, 2014, 2020 and payment of deputation pay for the period the petitioner remained posted in NAB is set aside. Consequently, the President of the Bank is directed: -
(i) to ensure payment of dues to the petitioner on account of MTO/Non-MTO charges in the light of order, dated 13.03.2013, passed by the High Court of Sindh in Constitutional Petition No.D-417 of 2010 and upheld by the Apex Court of the country vide judgment, dated 21.09.2016, rendered in Civil Appeal No.1644 of 2013, subject to the condition that the amount already transferred in the account of the petitioner in that behalf is repaid by him or is deducted by the Bank under intimation of the petitioner;
(ii) to ensure that grading of the petitioner noted by the Director General NAB in the APAs for the years 2008 to 2012 shall be taken as conclusive notwithstanding any duplicate/substitute APAs by the Bank management for the said period;
(iii) to ensure that in the APA for the year 2012, the petitioner is treated in category-B as recommended by the Regional Heal/Countersigning Authority;
(iv) to ensure completion/re-writing of the APA of the petitioner for the year 2014 from Ms. Saeeda Jalal (the then VP/Manager) and the APA already completed without signatures of the Reporting Officer shall be discarded forthwith;
(v) to ensure consideration of the petitioner as Very Good in his C.R. Dossier for the year 2016 as per recommendations of the Reporting Officer;
(vi) to ensure completion of the APA of the petitioner for the year 2020 by the then Regional Head being his supervisory officer and then its countersigning by the Countersigning Authority; and
(vii) to ensure payment of outstanding dues, if any, ancillary to the above relief.
26. The Regional Head (Lahore Central/respondent No.3) is earmarked for the Vice Presidents in the light of Organizational Circular No.21/2021 forthwith.
27. The office is directed to transmit copy of this judgment to the Secretary, Government of Pakistan, Finance Division, Islamabad through fax for information and future reference.
28. The office shall also send copy of this decision to the President of the Bank and respondent No.3 through fax for information and compliance.
29. Insofar as C.M. No.1 of 2025, is concerned, the matter relating to the transfer/posting of the petitioner having been dealt with in the main case, the said application has become infructuous and the same is disposed of accordingly.