Monday, 16 September 2013

Can a bound employee leave Government?

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 theQuaid-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 anon 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 on25th 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

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