PLJ 2012 Islamabad 8 (DB)
Present: Riaz Ahmad Khan and Muhammad Azim
Khan Afridi, JJ.
Dr. BABUR WASIM
ARIF--Appellant
versus
SECRETARY,
STATISTIC DIVISION and others--Respondents
ICA No. 194 of
2011, decided on 8.2.2012.
Governments
Servants (Applications for Services and Posts) Rules, 1966--
----Rr. 3 & 5--Law Reforms Ordinance, 1972, S. 3--Intra
Court Appeal--Overseas Scholarship for up-grading educational
qualification--Undertaking given to service--Government of Pakistan for five
year after completion of training abroad--NOC for joining new post was
regretted--Surety bond and undertaking to FBS--Govt. Organization to serve
Govt. of Pakistan for five years while Q.A.U funded by Govt. enjoys similar
status--Civil servant was appointed as S.O. in service of Govt. and was under
obligation to apply to any other post, Govt. or non-governmental--University
was not authorized to entertain application being government
employee--Relief--Appellant for availing scholarship had bound down to serve
Govt. at least five years after completion of his training abroad--Appellant
had applied to post of lecturer, however, he was not granted permission by head
of organization and as such consideration and selection to post of lecturer was
not in harmony with Rule 3 and as such appellant was not entitled to seek
release for appointment of his new assignment--Appellant had given an
undertaking and bond to which he had bound down himself to serve Govt. of
Pakistan for a period of at least five years after return from abroad which
period had not yet expired--Since undertaking to serve was voluntary act of
appellant and mandatory requirement of awarding or obtaining scholarship and on
basis of the same govt. had awarded facility to improve and up-grade his
educational qualification which opportunity was availed and encashed
by appellant from Govt. of Pakistan as such reason had emerged for refusing
permission mandatorily required to appellant for applying to the post--Service
of Q.A.U. could not be termed as service of Govt. of Pakistan as the university
was neither a ministry nor Division being run and controlled by Govt. of
Pakistan rather was an entity independent of any governmental hierarcy--I.C.A. was dismissed. [Pp. 11 & 12] A, B, C & D
Mr. Ali Murad Baluch, Advocate for
Appellant.
Raja
Abid, DAG alongwith Mr. Akhtar Hussain, Dy. Director
Statistic Division for Respondents.
Date of hearing:
2.2.2012.
Judgment
Muhammad Azim Khan Afridi, J.--Dr. Babur Wasim Arif son of Muhammad Arif, Statistical Officer, Federal Bureau of Statistics,
Government of Pakistan, Islamabad hereinafter referred to as the appellant has
preferred the instant intra Court appeal U/S 3 of the Law Reforms Ordinance,
1972 challenging therein vires of order dated
28-9-2011 passed by Hon'ble Judge in chamber of this
Court in Writ Petition No. 2679 of 2011, vide which the constitutional petition
of appellant was dismissed.
2. Salient features of the case of the appellant
are that he joined the Federal Bureau of Statistics, Government of Pakistan
(FBS) as Statistical Officer (BPS-17) on 11-6-2003. During his
service he obtained a Ph.D. degree, expenses whereof were allegedly paid by the
Government of Japan. The appellant on return from abroad applied for the post
of Lecturer (BPS-18) advertised by Quaid-e-Azam University, through Director General,
FBS (Respondent No. 2), however, his application was not forwarded and NOC for
joining new post was also regretted. That the appellant had also applied to the
said post at his own and, on the basis of the same, he was selected for the
said post.
3. That the appellant had executed a surety bond
and undertaking to the FBS, a governmental organization to serve Government of
Pakistan for five years while the Quaid-e-Azam University, funded by the Government of
Pakistan enjoys similar status. That though the appellant is under an
obligation to abide by the agreement but according to the terms of the same, he
was obliged to serve Government of Pakistan which include
Quaid-e-Azam University
i.e. a government organization/university. That to secure aims and join the
post of lecturer, the appellant was left with no option but to seek relief
through invoking extra-ordinary jurisdiction of this Court under Article 199 of
the Constitution of Islamic Republic of Pakistan, hereinafter referred to as
the Constitution.
4. That the Hon'ble
Single Judge in chamber vide impugned judgment and order dated 28-9-2011 dismissed the
constitutional petition leaving the appellant with no option but to assail the
same through the instant Intra Court Appeal.
5. Learned counsel for the appellant has argued
that the appellant, while serving as Statistical Officer in FBS, opted to avail
the scholarship offered by Government of Japan through Government of Pakistan.
That the appellant availed the opportunity and successfully obtained a Ph.D.
qualification whereafter he returned and joined his
department in accordance with the terms and conditions laid down in the
undertaking dated 25-7-2007.
That the post advertised by the university and the application to the same by
the appellant was not contrary to the terms and conditions of the undertaking
as the University was also a governmental organization. That inaction on the
part of the respondent by not forwarding application of the appellant and non
issuance of NOC to him for joining the post is an arbitrary act, tainted with malafide and against the vested rights of the appellant,
i.e. to improve his service status and career. That the
appellant, being highly qualified, was in a position to serve the Government of
Pakistan in far better manners by joining the new assignment. He further
argued that the status of FBS has also been changed from governmental
organization to a non governmental organization and
as such the appellant was, by now, in a better position to seek an order for
joining the post of lecturer at the University.
6. On the other hand, learned DAG appearing on
behalf of the respondents has argued that the appellant was a civil servant and
appointed as Statistical Officer in the service of Government of Pakistan and
was, therefore, under an obligation to apply to any other post in any other
organization, governmental or non governmental
through proper channel. That the appellant has ignored and
bypassed the prescribed channel. That the
establishment of university was not authorized to entertain the application of
the appellant being a government employee. That act and conduct of the
appellant disentitle him to any discretionary relief in the mode and manners
claimed by him.
7. That apart from above the appellant was
nominated by the Government of Pakistan for availing the scholarship offered by
Government of Japan and in order to avail the same the appellant had bound down
himself to serve the Government of Pakistan for at least five years after the
completion of his training abroad. That grant of NOC to the appellant would be
in negation of the said undertaking and as such Respondent No. 2 was justified
to refuse the same to the appellant.
8. We have heard the learned counsel for the
parties and have given due consideration to the arguments advanced at the bar.
9. The undisputed facts of the case of the
appellant are that he was a Statistical Officer in FBS (BPS-17) serving the
Government of Pakistan at the time of availing the overseas scholarship for
upgrading his educational qualification. To avail the scholarship he furnished
the obligatory bond and undertaking in the prescribed manner on 25th July, 2007. According
to Clause 3 of the undertaking given by the appellant, he was to serve the
Government of Pakistan for five years after the completion of his training
abroad. The unambiguous words of the aforestated
clause would clearly suggest that the appellant, for availing the scholarship,
had bound down himself to serve the Government of Pakistan at least for five
years after the completion of his training abroad. It is not disputed by the
appellant that the said period of five years, after
the return of the appellant from abroad, had not yet expired.
10. According to Rule 3 of Government Servants
(Applications for Services and Posts) Rules 1966, no government servant can
apply for appearing in competitive examination or for appointment to any post
other than the post which he holds for the time being except with the prior
permission in writing of the head of the office, Ministry or Division in which
he is employed. Such Ministry or Division is to give reasons in writing for
refusal of such permission. According to rule 5 of the Rules ibid, if a person,
applying in accordance with the terms of Rule 3, is selected for appointment, his
release for such appointment cannot be withheld or refused if his selection for
appointment was to a service in a higher group.
11. Appellant has applied to the post of
lecturer, however, he was not granted permission by the head of the
organization and as such consideration and selection of appellant to the post
of lecturer by the management of Quaid-e-Azam University was not in harmony with Rule 3 and as such,
the appellant, in the circumstances of the case, was not entitled to seek
release for appointment of his new assignment. Apart from the above, the
appellant has given an undertaking and bond, referred to above, according to
which he has bound down himself to serve the Government of Pakistan for a
period of at least five years after his return from abroad which period has not
yet expired.
12. Since the undertaking of the appellant to
serve the Government of Pakistan was a voluntary act of appellant and a
mandatory requirement of awarding or obtaining scholarship and on the basis of
the same the government has awarded him the facility to improve and upgrade his
educational qualification which opportunity was accordingly availed and encashed by the appellant from the Government of Pakistan
as such sound reasons had emerged for refusing the permission mandatorily
required to the appellant for applying to the said post.
13. The service of Quaid-e-Azam
University cannot be
termed as service of Government of Pakistan as the said University is neither a
Ministry nor a Division being run and controlled by Government of Pakistan
rather the same is an entity independent of any governmental hierarchy.
14. For the above
mentioned reasons we do not find any substance in the Intra Court Appeal. We,
therefore, dismiss the same with no order as to costs.
(R.A.) I.C.A.
dismissed
