' The brief facts of the case are that in 1983, the petitioner while serving in Grade-19 in the Income Tax Department, went on deputation to the Wafaqi Mohtasib (Ombudsman), Islamabad. In 1987 his services were placed at the disposal of Implementation Tribunal for Newspaper Employees as Member in Grade-20. Thereafter his services were placed at the disposal of the Senate Secretariat as Joint Secretary in Grade-20 with effect from 27-5-1989 on deputation.
2. Vide Notification dated 21-7-1994 issued by respondent No,1, the petitioner's services have now been placed at the disposal of his parent department i.e, CBR, Islamabad with immediate effect.
The petitioner contends that on the receipt of this notification it was brought to the notice of respondent No,1 by the respondent No,2, that the petitioner had already been absorbed in the Senate Secretariat with effect from 26-1-1993 with the concurrence of respondent No,2. The petitioner further claimed that after the petitioner's alleged absorption in the Senate Secretariat, lending department i.e, CBR terminated the petitioner's lien and his name was removed from the seniority list. For this reason he was not considered for promotion in the Income Tax Group alongwith his farmer colleagues. The petitioner further claims that after joining Senate Secretariat on deputation his services were permanently absorbed in the Senate Secretariat with the consent of lending department and the borrowing department. Thus it is not within the competency of respondent No,1 to repatriate him from Senate Secretariat to Income Tax Department/CBR. He submits that by having lawfully absorbed in the Senate, he was no more civil servant and action of repatriating him is unlawful.
3. My brother Mr. Justice Raja Afrasiab Khan, the Hon'ble Judge of this Court was pleased to grant status quo, ad interim relief vide his order dated 209-1994 and the respondent No,1 was directed to submit report and parawise comments within six weeks. Status quo order was passed subject to notice to the respondents. On receipt of the notice the respondent No,1 filed CM-1780/94 with the prayer that the interim order dated 20-9-1994, to the extent of the status quo, be recalled and vacated in the interest of justice.
4. I have heard the learned counsel for the parties and also gone through the documents placed on record by petitioner in support of his contentions. The petitioner has challenged repatriation order mainly on the following grounds:-
(i) That the petitioner has been permpently absorbed in the Senate with effect from 27-5-1989, hence he cannot be repatriated to the Income Tax Department/CBR.
(ii) That the petitioner has been permanently absorbed in the Senate Secretariat with the concurrence of lending and borrowing departments, hence plea of -waiver/estoppel dislodges the impugned order of repatriation.
5. On the other hand, the learned counsel for the applicant (CM-1780/94) seeks that the interim order dated 20-9-1994 to the extent of status quo be recalled and vacated on the following grounds:-
(i) The order of status quo was passed on the back of the respondent No,1 and had no opportunity to be heard.
(ii) The writ petition is barred by Article 212 of the Constitution of Islamic Republic of Pakistan.
(iii) The petitioner's claim that he has been absorbed permanently in the Senate Secretariat is not tenable. The competent authority has not given its concurrence to absorb the petitioner permanently in the Senate.
(iv) The respondent pleaded that there is no question of waiver/estoppel against the statute when the action is in accordance with law.
6. Keeping in view, the arguments advanced by the learned counsel for the parties, I am of the view that at present while dealing with CM-1780/94 the only controversial point needs adjudication is as to whether the writ petition is maintainable or not because of Article 212 of the Constitution of Islamic Republic of Pakistan. The Article (its relevant portion) reads as follow:-- "212. (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters;
(b) .........................................
(c) .................................
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the Jurisdiction of such Administrative Court or Tribunal extends."
7. It is quite evident from Article 212, clause (1), sub-clause (a) that matter relating to the terms and conditions of person who is or has been (Underlined by this Court) in the service of Pakistan is to be adjudged by no other Court except created by this Article, which envisages that no other court shall grant an injunction and make order in respect of matters to which the jurisdiction of Administrative Court or Tribunal extends.
8. There is no controversy between the parties that at least the writ petitioner was a civil servant when he went on deputation to the Senate till the time he was allegedly absorbed permanently in the Senate. His case on this count prima facie, falls under the category of those officers who have been in the Service of Pakistan. Presently the dispute also is whether he Lawfully stood permanently absorbed and is no more civil servant or not. Embarking upon to adjudicate this controversy there is no hesitation to say that the matter pertains to the terms and conditions of the services of a person who has been in the service of Pakistan at least till the date he started claiming his permanent absorption, even without dilating upon the period of his service from 25-7-1989, onwards, but it will be fair enough to say that while resolving the dispute it is imperative to give finding, as to whether:--
(a) that petitioner is a deputationist or not till the impugned notification was issued?
(b) His services stood lawfully transferred or not?
(c) The alleged concurrence of the respective authorities regarding the terms and conditions on the petitioner's service from deputation service to permanent is lawful?
Undoubtedly all these matters fall within the ambit of terms and conditions of his service, hence Article 212 of the Constitution comes into play.
9. The learned counsel for the respondent has also referred to Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. This Rule reads as under:-- "Rule 3. "Appointments to posts shall be made by any of the following methods, namely
(a) by promotion or transfer in accordance with Part II of these Rules, and
(b) by initial appointment in accordance with Part III of these Rules."
10. He further pointed out the implications of Rule 6 the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. According to Rule 3 appointments are made to the posts by promotion or transfer and by initial appointment. Admittedly the petitioner was serving on deputation and claims that he has been permanently absorbed in the Senate and appointed against a post of Grade-19 or above. Under Rule 6 referred above when any such appointment is made from Pay Scales 17 to 19 the appointing authority is Secretary, Establishment Division, while for the higher grades the appointing authority is the Prime Minister of Pakistan.
11. Prima facie this rule/procedure in the matter of appointment is applicable and the contention of learned counsel for the applicant has force in saying that in the present case concurrence of the Secretary, Establishment Division, Government of Pakistan or the higher authority, as the case may be, with reference to pay grade was needed. Things required to be done by law in a specific manner, if not done so, means not done at all. The claim of the petitioner, that in his case concurrence was accorded, is therefore refuted.
12. So far as, the plea of waiver/estoppel is concerned it will suffice to say that there is no estoppel against the statute. There must be a representation by a party having led in, the person pleading estoppel, to do something detrimental to his own interests owing to the action of the other party.
However the representation even if any, not initiated by the competent authority or is manifestly against law cannot be made a basis of plea of waiver/estoppel. No corporate body or statutory functionary can be bound by estoppel to do something beyond its powers and cannot be bound to do something which is regulated by statute in any other way than the statute requires. In the present case there is no such representation from the Establishment Division etc.
13. For the foregoing reasons, at this stage, I am of the view that writ 1 petitioner lacks prima facie case for the grant of interim relief from this Court. The CM-1780/94 is accepted, status quo order is recalled and vacated.
14. In the main writ petition, respondent No, 1 is directed to submit report and parawise comments as per orders dated 20-9-1994.