' The petitioner having grievance against the respondents seeks indulgence of this Court through this Constitution petition for issuance of the following directions to the respondents:--
(i) That respondent No, 1 may be directed for the payment of his unpaid salary and allowances since May, 1996 and the allowances of his travelling with family from Copenhagen along with the daily allowance permissible under the rules,
(ii) That in consequence of the appointment of petitioner as Consul-General in Sydney, the formality of obtaining the requisite agreement of the Host Country being not done by respondent No, 2, the said respondent may be directed to do the needful to enable the petitioner to proceed to the said country and join his assignment.
2. The petitioner, a member of Civil Service of Pakistan belonging to Occupational Group of Customs and Excise, was placed at the disposal of Ministry of Commerce to be posted as Commercial Consular in Copenhagen. The petitioner in consequence of the appointment in the above position by respondent No, 1 vide order dated 11-6-1995, assumed the charge as such in the Embassy of Pakistan, Copenhagen (Denmark) on 19-7-1995. The petitioner was on official tour to Stockholm, when he having withdrawn through order dated 21-4-1996 was suddenly called back to report in the Central Board of Revenue, Islamabad. The order in question was communicated to the petitioner through fax message on holiday and was also served upon him by the Ambassador of Pakistan in Stockholm on the same day. He was required to proceed immediately without permitting to relinquish the charge in Copenhagen. The petitioner in compliance of the above direction reported in the Central Board of Revenue, Islamabad where he was retained without further posting and payment of expenses borne by him on travelling. The family of the petitioner being still in Copenhagen was not allowed to stay in the official residence provided to him temporarily.
' The petitioner having recalled from Copenhagen was kept in Central Board of Revenue under posting and ultimately was posted as Consul-General in Sydney, Australia by the Ministry of Commerce, Government of Pakistan, Islamabad vide order dated 19-1-1997. The grievance of the petitioner is that the Ministry of Foreign Affairs, respondent No,2 herein despite lapse of a period of about three months, without disclosing any legitimate reason has taken no step to complete the formality of obtaining the agreema of the Host Country to enable the petitioner to loin his new assignment. According to the petitioner, the concerned officials of respondent No, 2 with the intention to undo the order of foreign posting of the petitioner are acting detrimental to the interest of the petitioner.
3. The report and parawise comments to the writ petition were called from the respondents for 19- 3-1997 requiring the learned Standing Counsel for Federal Government to also appear before the Court with necessary instructions. Learned Standing Counsel with Sultan Ahmad, Deputy Secretary, Ministry of Commerce on instructions from Mr. Jamshed, Legal Advisor to Ministry of Foreign Affairs, requested for short time to submit report and parawise comments. Accordingly, the case was adjourned to 21-3-1997, but, the needful having not done, this Court was constrained in passing the following order:-- "Learned Standing Counsel states that he contacted Ras Masood, Deputy Legal Advisor, Irfan-ur- Rehman Raja, Director on Telephone and Rifat Mehdi, Additional Secretary (Admn.) through his staff to seek instructions on the subject as per direction of this Court and also ask to attend the Court with record but none having turned up, he is not in a position to assist the Court on the subject.
(2) Sultan Ahmad, Deputy Secretary, Ministry of Commerce, Islamabad, present in. Court, states that the order of appointment of the petitioner as Consul-General in Sydney shall be implemented without any change and that except formality of agreema of Host Country to be arranged by respondent No, 2, there is no impediment in the implementation of appointment order. He states that the moment, the needful is done by respondent No, 2, necessary arrangement including visa and other formalities for departure of the petitioner for his assumption of charge shall be made without loss of time. He further states that the salary and T.A./D.A. Admissible to the petitioner, if not already paid, shall be paid within a fortnight.
(3) Respondent No, 2 discharging function of foreign affairs of Federation of Pakistan with foreign countries was under obligation to seek the concurrence of Host Country shortly but strangely enough despite lapse of more than two months, no step statedly was taken in this behalf and consequently the petitioner being prevented from joining his assignment is not permitted to assume the charge of his office for no legal excuse. The officials of respondent No, 2,namely, Ras Masood, Deputy Legal Advisor and Irfan-ur-Rehman Raja, Director even did not bother to pay attention to the order of this Court conveyed to them through the learned Standing Counsel.
(4) The requisite concurrence (Agreema) shall be sought by respondent No, 2 within seven days and the compliance report shall be submitted by the Additional Secretary (Admn.) producing the correspondence made in this behalf with the Host Country, through the dealing officer on 28-3- 1997.
(5) Irfan-ur-Rehman Raja, Director concerned and Ras Masood, Deputy Legal Advisor shall appear in person and explain their conduct. The order shall be communicated to the respondent No, 2 and the above-named officials through special measures at the expense of the petitioner."
' The case was adjourned to 28-3-1997, till which date, the position remained unchanged. However, in view of the assurance given by the representatives of the respondents, the case was adjourned with the following orders:-- "The comments have not been submitted on behalf of respondent No,2. Irfan-ur-Rehman Raja, Director (P&I) Ministry of Foreign Affairs has submitted comments on his own behalf in an improper form without offering explanation for non-appearance before the Court in compliance of the order dated 19-3-1997. Director (P&I) and Ras Masood, Deputy Legal Advisor clarifying their position submitted that the learned Standing Counsel was requested to get further time through an official in his office from the Court, regretted for the inconvenience caused to the Court. According to them, the required formality for the implementation of the order of appointment of the petitioner was purposely not fulfilled for the reason that a summary was submitted to the Prime Minister for the allocation of four posts of Consul-General including that of Sydney to diplomatic Officers and that Ministry of Commerce was also requested not to take any further step in the matter in the meanwhile. Irfan-ur-Rehman Raja, Director (P&I), however, conceding the fact that Foreign Office playing only the role of a post office is not justified to delay the matter, undertakes to take necessary steps of issuing the letter today to the Pakistan High Commission in Camber for the needful to be done within seven days and the moment the requisite formality of agreement of the host country is fulfilled, the Ministry of Commerce shall be informed. He also takes the responsibility, of getting the requisite formality to be completed by the Pakistan High Commission on priority basis and inform this Court on the next date of hearing.
(2) Sultan Ahmad, Deputy Secretary, Ministry of Commerce, states that no proposal through the summary in question is in the knowledge of Ministry of Commerce and that except the formality in question there is no obstacle for the petitioner to assume the charge. He states that the payment of salary, T.A./D.A. And transportation charges of luggage's of the petitioner and his family already incurred by him and for onward journey to Sydney shall be paid shortly.
(3) In view of the explanation offered and undertaking given by the Director (P&I) and the Deputy Legal Advisor, the case is adjourned to 10-4-1997 to enable them to complete the formalities.
Director (P&I) shall remain in attendance on the next date with full information including the correspondence made by the Foreign Office on the subject with the Pakistan High Commission in Cambera.
(4) Learned counsel for the petitioner having serious apprehension of some mischief on the part of dealing officials in the concerned Ministries, prayed for a restraint order regarding the allocation of post.
(5) In continuation of orders dated 15-3-1997 and 19-3-1997 pending disposal of this writ petition, the present allocation of the post in question disturbing the appointment of the petitioner shall not be changed."
' On the adjourned date of the case i,e, 10-4-1997, Tassaduqe Mukhtar, Section Officer, Ministry of Foreign Affairs, informed the Court that necessary steps for materializing the appointment of the petitioner as Consul-General in Sydney were being taken actively and expectedly the same would be finalized shortly. The case was, therefore, adjourned with the following order:-- "Section Officer, Ministry of Foreign Affairs, states that Irfan-urRehman Raja, Director (P&I) being not well has deputed him to appear before this Court. He has produced a copy of letter dated 28-3- 1997 written by Director (P&I) to Pakistan High Commission at Cambera and a Fax message from Pakistan High Commission to the Ministry of Foreign Affairs conveying information that the matter relating to the appointment of the petitioner as Consul-General in Sydney has been taken up with the concerned authorities in Australia. He states that a copy of the correspondence made by the Pakistan High Commission at Cambera with Australian Authorities on the subject shall be produced before the Court on the next date and that necessary direction shall be issued to the High Commission for finalizing the matter on priority basis. According to him, the needful is expected to be done by the Host country within a short time and that the moment message is received, the visa for the petitioner shall be arranged.
(2) Khurshid Anwar Shah, Section Officer, Ministry of Commerce, states that the payment of transportation charges, salary and T.A./D.A. Shall be made within a week."
The position remained standstill till 23-4-1997, when the following order was passed:-- "Muhammad Saleem, Section Officer, Ministry of Foreign Affairs producing a letter dated 8th April, 1997 of High Commission for Pakistan at Cambera addressed to Department of Foreign Affairs and Trade Commonwealth of Australia, Cambera containing a request for conveying the concurrence to the appointment of the petitioner as Consul-General of Pakistan stated that the requiste agreema having not yet conveyed, no further step could be taken.
(2) The petitioner has produced a letter dated 21-4-1997 of Consulate-General of Pakistan, Sydney Australia, wherein it is stated that only in the case of Ambassadors/High Commissioners, agreema is issued prior to the arrival in the host country and in case of Head of Consular post an exequatur is issued. According to the Consulate-' General of Pakistan, the Australian Authorities have advised that the visa should be applied to the Australian High Commission, Islamabad, which will be issued prior to the issue of exequatur.
(3) This being so, respondent No, 2 without waiting for the formality of agreema or exequatur as the case may be shall issue note verbal within two days to enable the petitioner to apply for visa to the Australian High Commission, Islamabad and submit progress report on 25-4-1997. The petitioner shall provide necessary information including his passport number to Muhammad Saleem, Section Officer today to do the needful."
' Mr. Babar Hashmi, Director (P-I) appearing before this Court submitted a report on the subject referred in the order dated 28-4-1997, reproduced hereunder:- "Mr. Babar Hashmi, Director (P-I) placing a copy of note verbal on the record issued on behalf of respondent No, 2 to the Australian High Commission, Islamabad (copy of which has been delivered to the petitioner in Court) states that all formalities having done by the foreign office, the petitioner on receipt of Exequatur/agreema of host country and visa from Australian High Commission can proceed to take over the charge of his assignment. He undertakes to pursue the matter with the concerned authorities in Cambera on priority basis through issue of reminders to Pakistan High Commission for doing the needful early and submit report on the next date. He regrets for the inconvenience caused to the Court due to the conduct of the official earlier dealing the matter."
' The petitioner apprehending some foul play on the part of Foreign Office stated that delay was being caused in completing the formalities purposely to undo his foreign posting with a view to substitute him with some favourite person. Mr. Babar Hashmi, Director (P&I), Foreign Office was directed to appear in person vide order dated 7-5-1997 and explain the position. The said order is reproduced as under:-- "Learned Standing Counsel having placed on record the copy of letter dated 6-5-1997 whereby the necessary information sought by the High Commission of Australia at Islamabad for issue of visa has been supplied. He has also placed a copy of Fax Message from Parep Cambera under the signature of Mr. G. Farid Farrukh, First Secretary Foreign Office, Islamabad whereby it is stated that concurrence of the authorities of Host country will be communicated on its receipt.
(2) The petitioner states that as per his information no serious effort has been made to finalise the matter and the letter placed on record was not actually sent to the host country.
(3) The general information does not indicate that what efforts have been made by the Pakistan High Commission at Cambera in consequence of the undertaking given by Mr. Bashir Hashmi, Director (P&I) before this Court. Let Director (P&I) appear in person on the next date and explain the correct position through the correspondence actually made by the Pakistan High Commission.
(4) Learned Standing Counsel also wants some time to go through the reply submitted by Mr. Ross Masud, Deputy Legal Advisor.
(5) Adjourned to 20-5-1997."
' Mr. Babar klashmi, Director (P&I) informed the Court on 20-5-1997 that the necessary concurrence of the Host Country has been received, whereupon the following order was passed:-- "Mr. Babar Hashmi, Director (P&I) states that the concurrence of the Host Country has been received and the petitioner in his discretion can proceed at any moment and that Foreign Office is no more involved in the matter."
' The learned counsel for both sides jointly stated before the Court on 5-6-1997 that the petitioner has assumed the charge at Sydney and this petition having been fruit need not to proceed further requested for its disposal along with the contempt matter.
4. The contempt proceedings initiated against Mr. Ross Masud, Deputy Legal Advisor were postponed to 12-6-1997 to enable the contemnor to submit additional reply as requested. The contemner tendering unconditional apology submitted that he did not intend to be disrespectful to the Court or disobey the order of this Court. Learned counsel for the petitioner states that contemner possibly for some misunderstanding behaved abnormally and also requested for acceptance of apology.
' Considering the unconditional apology submitted by Ras Masud, Deputy Legal Advisor, Ministry of the Foreign Affairs further proceedings against him in contempt matter are dropped with the warning to him to be careful in future.
5. In the normal circumstances a person on Foreign Posting is not recalled before completion of minimum tenure of three years, whereas the petitioner within one year of his appointment as Commercial Consular in Copenhagen, was withdrawn and subsequently with such an interval was posted as Consul-General in Sydney by the Ministry of Commerce through a fresh order. The order of all diplomatic foreign posting are implemented through the Ministry of Foreign Affairs but except in cases of posts belonging to Foreign Service or placed on the disposal of Ministry of Foreign Affairs, as the case may be, the said Ministry does not retain the power of appointment or posting of any person inside or outside the country. The Foreign Ministry discharging the functions of Liaison office in the matter of foreign appointments/postings of a person of another department or Ministry against any such post, has to complete the required formalities for maturing such posting as an obligation and official duty. The nonperformance of the said duty within reasonable time can create trouble through unforeseen problem for the concerned country as well as the individual.
Therefore, the official responsible for non-performance of such duty can be proceeded against for negligence and wilful disobeyance of order, as the case may be, under Government Servant Efficiency and Discipline Rules, 1973. During the proceedings, the representative .Of respondent No, 2 stated that the post against which the appointment of the petitioner has been made was being sought to be allocated to the Foreign Ministry and the same being under consideration with the Prime Minister, unless decisive step was to be taken, the implementation of the order of appointment of the petitioner was to be necessarily withheld. The act of the , officials of the Foreign Office to get the post in question to be placed at the disposal of Ministry of Foreign Affairs to accommodate some official of said Ministry through usurping the right of all Government servants in other Ministries and departments with an attempt to make the posting of the petitioner by withholding the process at the instance of respondent No, 2, was unbecoming of a good Official.
The foreign posting relating to the posts not on the cadre of Foreign Service or on the disposal of Ministry of Foreign Affairs is not supposed to be made by the Ministry of Foreign Affairs and, therefore, the concerned Officials of respondent No, 1 were not justified in delaying the process of completing the formalities for implementation of the order of appointment of petitioner as Consular-General in Sydney. The Ministry of Foreign Affairs like other Ministries and the Departments of the Federal Government, while discharging its functions in relation to such matters concerning with the foreign posting and transfer of Officials other than Ministry of Foreign Affairs has to play only the role of an agent and not that of the controlling Authority and, therefore, encroachment upon the rights of others by the Foreign Ministry in such manner would definitely cause unrest among the Government servants.
6. The Official of respondent No, 2 in derogation to the Rules and contrary to the object of smooth running of the business of the Government with coordination and cooperation of the Departments and the Ministries inter se and instead of doing the needful as per their Official obligation as public servant watching their personal interest made an attempt to frustrate the appointment of the petitioner compelling him to knock the door of the Court.
7. The petitioner having appointed by the Ministry of Commerce as Consul-General in Sydney was restrained from assuming the charge as such, by the respondent No, 2 by withholding the process of obtaining the requisite agreema with the ulterior motive not to implement the order until the post is given to the Foreign Ministry caused delay of about of six months in release of the petitioner, therefore, his tenure of foreign posting will definitely take place from the date of assumption of charge of office and not from the date of appointment/initial posting.
8. The representative of the Ministry of Commerce conceding the entitlement of the petitioner stated that salary along with travelling and daily allowance has been paid to him.
9. In the light of the foregoing reasons, this petition having borne fruit is allowed with direction to the respondent to pay all expenses borne by the petitioner on journey from Copenhagen to Pakistan with daily allowance as permissible under the Rules for the period during which his appointment as Commercial Consul in Copenhagen remained unchanged. No order as to costs.