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Government of serviceS and General dmn, Leptt

(iegulatim ing)

NSoR_1(S&GAD)1_1/82 Y)

Dated Peshawar the 3_4_1994

All dil2istrataVe Sacretaries to Govt of NW.

SecretrY Gvernr, NW?P,

. to Chief Minister, IcwP.

4. Afl in

, All Hed ' Attached Depa mentin NVJPP.

Authn nus/emi tnmUS Bodies

? -ll Leuty m sioners/ tical Lgontn

j TIT v'W 6. The AeiStrar,P sriaw.r High Court,PeaW ar-

All Di,trLet and Sessifl Judges in NWPP.

The 5e1cretarY NTP Public Service Commissi0

INTP.

The r,,Antd.—Uorruptjon Establishfllent

NFP 1kshgtwar,

The se retRVY Board of RevenueF Peshawar.

13 The R .str8.r,N Service Tribua1,1TP,

Peshawt-'.

Sub e t DhPUTTION 0' OIVL S5hNTS TO 0RE.IGN55 T 1i'TT AND COIITI0NS 0 6 RVICES

-*- .-

ir I am direced t refer th this

De1,)rtmet5

circur etrer dated

lo_i1q1 and t tat uner the existing policy th , e

tes and cndit:Loflb of deputation of Goverpmeflt serVeflE

to £re:.gn servib Ln Pakistan are to be settled in f the inance Departmet. advance with the 0ocurrOn0

2. It hes, -ever, been noticed that in Gertain

cse6 term an con itions of deputatifl were not 5ett1ed

in advanOe In s'm- other cases, the servants were

deputed against in higr pay scale withoU

bi1O prior conurreflCe of the lending Dopart and

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the ployces of t Autonomun/ miut omo

were deputed againe ciril p5t5 i the Government

pr etice is aains the rule andP0l icy Department. This

2

the Provi iei Gove iment

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3. I am, therefhra dircct reauest that the

I existing policy of the Govemen :ur be ehereq tc- i letter and spirit and n o-iolFj 1;her')e me be alwe.

V in future I am further to request that i future dputafion f the employees of A J3odies may, not be allowed agaipt cavil posts under tie

LGorernment.. IC cases where speca j;:i.ficatjcr exists V for such deputatiop, .the h i 0A 1) ll:&f. 1ne-ria)v h

consulted by the Administrative f'epartment/Fja5 ce Department before cnsiieriy such prCposals, Pi

- cce-:iiq::t servent

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udst r-lauph Fcc Copy to .

1 . The Aqq oun - fltGpy1e2'a MOE Pchap - 0 V' V V V

.'-. . V .- . -ll is r1et/1-Lrenc1es l AOc1:t 1CVPS U '

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V As:iShahah i Ssatoj Officer

nddt N 90R.i ch cy ia;e-i ehh the —-0 ( OD_y . ql -

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I. The 0ire 01cr bec.rateia; eri ces 'esinir.- tr3st:. -.:1ct. BcnCcrO-t 21nd Buildine e5 V a iant;t: -

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Deputy cecreta.ris in V V Vl) -

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2 .). GOVERNMENT OF PAKISTAN ...

CABINET SECRETARIAT . ..

ESTABLISHMENT DIViSION

I

/ No.1/59/2Ol34it'

islamabad, 31 January, 2014

I Add Soty Jui EtAD /

ND41M .i2

CL ORIGJNAL PET1TION NO.89/2011

K/21112 C1r1.M.As.42K12012 80-K12012, 87-1(12012 13-K12013,

CMA.2453J13 Cr A.29-KIZOl3,

22/2013 22612013 227/2011 CMAs 244-K_TO 247-1(12013 27-K & 258- -

.

I ) 1(12013 Crl.M.A. 263/2013 CO. MA. 282 IN CRL. ORIGINAL PETITIO1[

I T;•

The undersigned is directed to say that the Honorable Supreme Court of Pakistan

ad passed judgment on 12-6-2013 on the subject petitions clubbed with a number of other

petitions and had ordered that a copy of this judgment be sent to all the Chief Secretaries of the

Provinces as well as the Establishment Sec, retary with the direction to streamline the service

structure of civil servants in line with principeS laid down in this judgment.

It was expected that aforemetiOned judgment was downloaded by all Ministries7 2. , the following guideli. -

Divisions for compliance. However, for the sake of convenience

principles are highlighted: -

The Honourable Court has declared the following practices as illegal:-

( I A civil servant, who after passing the competitive exam in terms of the

.-recruitment rules, is appointed on merits, loses his right to be considered for

' promotiOfl when an emploYe,e from any other organization is absorbed without

) pmpeting or undertaking competitive process with the backdated seniority and is

Chf cret4 conferred the status of a civil servant in complete disregard of recruitment rules.

il Seant conferring on him status of a Civil Servant and (ii) Absorption of a non Civ Civil Servant from non cadre post to cadre post without

likewise absotiOfl of a undertaking the competitive process under the recruitment rules.

(ui) idation law in the nature of multiple or parallel legislation

Introduction of any val on the subject of service law.

,(iv) Benefit of 'absorpliOns' extended since 1994, with or without backdated seniority,

are declared ultra vires of the constitUtiOn.

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14

17

Subject

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(v) The re-employment / rehiring qf the retired Civil / Government Servants being violative of the constitution are declared nullity.

The Apex Court has further held that: -

(a) No non-civil servant can be transerred and appointed by way of deputation to any cadre. The procedure provided under Esta Code has been approved by this Court in the case of Mohammad Arsha Sultan.

No civil servant of a non-cadre post can be transferred out of cadre to be absorbed to a cadre post which is meant for' recruitment through competitive process.

The procedure provided under ESTACODE requires that a person who is transferred and appointed on depi.tation must be a govt servant and such transfer should be made through the process of selection. The borrowing Govt has to establish the exigency in the flst place and then the person who is being transferred/ placed on deputation in Govt must have matching qualification, expertise in the field with required',experience.

An employee holding a post under any authority or corporation, body or organization established by or under any Provincial or Federal law or which is owned or controlled by Federal or Provincial Government or in which Federal Government or Provincial Government has controlling share or interest, could not conferred status of a civil servant.

It is settled principle of law that if the right of promotion is not blocked by re-employment then such powers can be exercised, then too in exceptional cases for a definite period. Besides it violats the fundamental rights of the serving civil servants, on account of such rehiring on contract are deprived of their legitimate expectancy of promotion to a higher cadre, which is violative of the provisions of Articles 4, 9 and 25 of the Constituton.

The absorption and out of turn promtion will also impinge on the self respect and dignity of the civil servants, who will be forced to work under their rapidly and unduly promoted fellow officers, those who have been inducted from other services / cadres regardless of their (inductees) merit and results in the competitive exams (if they have appared for exam at all), hence are violative of Article 14 of the Constitution. 'I

Principle of locus poenitentiae is the bower of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the orler is illegal then perpetual rights cannot be gained on the basis of an illegal order

(h) Any backdated seniority cannot be granted to any absorbee and his inter-se-. seniority, on absorption in the dadre shall be maintained at the bottom as provided under the Rules regulating the seniority.

3. All Ministries / Divisions anl Departments / Organizations under them are

) requested to comply with the judgment of the ipex Court in letter and spirit.

(Muhammad Shakeel Malik) Joint Secretary

All Ministries / Divisions/Departments

Copy forwarded for information to: -

Chief Secretary, Government of be Punjab. Lahore Chief Secretary, Government of indh, Karachi Chief Secretary, Government of(PK, Peshawar Chief Secretary, Government of Balochistan, Quetta Chief Secretary, Gilgit Baltistan, 6, ilgit. Chief Secretary, Government of 4J&K. Muzaffarabad

(1aseer Ahmed) Deputy Secretary

95

If

Section-14

WA

deputation Policy

1)eterinination of terms and conditions of civil servants deputed to Foreign Service.

Sl.No. I

Under the existing policy the terms and conditions of the civil servants deputed to Autonomous.. Semi-Autonomous or Local Bodies ill NWFII on loreigil service are determined b the Finance Department. ['he model terms and conditions laid clown in Appendik- Ii of the Fundamental Rules Vol-il have been adopted by this Department with certaill modihcations from time to time, The

modified terms and conditions are now consolidated and reproduced for the

guidance of all concerned:-

y:-A civil Servalt on deputation shall be entitled to the grade pay as is admissibe to him in his parent department from time to time.

(ii) Deputation Allowdilce In case the post in the Autonomous, Semi-Autonomous or Local body concerned carries a pay scale equivalent to that f the post held by a civil servant in his parent department iI1i1llei iatelv be fore deputation on wll cli Ile had aetLially assumed charge Linder Government, tile deputation allowance will beallowed at the rate of 10% of tile basic pay ill tile parent department provided tile pay plus deputation allowance do not exceed the maximum of the pay scale of the next higher grade/post ill the C vi I servant's oi-dinary I illC of promotion under

Government. For t'lis purpose. identical posts will mean posts in the same grade or laving tile aiiie minimum or IliaxiIlluIll of pay scale, or tile rate of increment.

N.B Tllere is no term 'DepLitation pay' used in the Fundamental Rules hence it has been corrected as "Depitatioii Allowance" with immediate effect.

b) In case tile post uider AutonomoLlS. Scm i-Autonomous or Local Body concerned crries a pay scale lltghel' than that of the post held by a civil srvant in his parent department immediately before deputation, on \vhicll lie had actually assumed charge under Government, the dputatioIl allowance will be allowed at the rate of 20% of the hasc pay in his parent department provided the total/inclusive of çleputatioll allowance does not exceed the

96 maximum of th pay scale of the next higher grade/post in the civil servant's ordinary I inc of promotion under Government.

c) If a special pay is attached to the deputation post and is incidental to the scale of sich post. the deputationist will be allowed either such special pay or the deputation allowance whichever be more beneficial to him

(i) The 10% or 20 deputation allowance, as the case may be. shall be allowed to a 'civil servant below grade 2 I only alter he has completed one yar's continuous service in the grade in which. hut for his deputatin to foreign service, he would have been employed under the Government. If the promotion to the next higher grade taks place during the tenure of deputation, the limitation of one bear will be reckoned from the date of effective promotion in the parent department till the completion of Iitl I one year thereafter. ln the case of officers in grade-20 belonging to the Federal unified gades deputed on foreign service under NWFP Government the terms and conditions of deputation shall be decided in consultttion with the Establishment Division.

Special Pa :- A I Government servant on deputation shall be entitled to the speial paN permanently attached to the scale of (lie post/grade in his arent department in addition to the deputation allowance rehrrcd to above, provided lie enjoyed that special pay for a period exceding full one year under Government. For example. the protction can be claimed in respect of the special pay of Rs. 165 attached with the post of a Deputy ('ommissioner. but not for the special pay allowed to a 'lchsildars doing settlement work orthat to a cashier for his specific job.

Travelling Allowaice:- T.A will be allowed in accordance with the ordinary T.A Rules of the Government or Autonomous & Scm i Autonomou body or Local body whichever are more beneficial to him. Conveyance Alloancc:- This allowance will be restricted to the scale as admissiblQ under the Government Rules subject to the relevant conditions

Compensatory Allowance:- Compensatory Allowance as admissible to a ci'il servant at the same place of posting ill continue to be adiiiissible during deputation as p' scale laid dlo\\ a by the Governinent hence it will not be inter-changeable with the compensatory allowances sanctioned by the Autonomous, Semi-autononious or loqal bodies concerned. However, the foreign

97

employer will lear the whole expenditure In respect of any

compensatory allowance for periods of leave granted to the civil servant in or at tle end of foreign service.

Residential Accommodation:- Accommodation will be provided to the deputatiopist by the Autonomous, Semi-autonomous or Local Body corcerned of the same standard as is normally provided to a civil servant in his parent department subject to the recovery of rent @ 5% of his emoluments as defined in F.R 45(c). Where such accofliniodation is not available and the Autonomous, Serni-aUtO110111OLls or Local body concerned pays the house rent subsidy to its mployees. the subsidy v ill be paid to the deputationist eithr at the rate admissible to such civil servant in his parent departnhent from time to time or at the rate admissible to the employees f the foreign employer whichever is more beneficial to the deputationist. If the deputationists continue to reside in Government allotted accommodation under special permission of Government fbi' certain specified periods, the dilTerence betveei the standard rent recoverable by Government over and above tle 5% rent recovery or as may be agreed upon mutually betweeh the Finance Department and the Body concerned.

Medical Facilitids: Medical facilities will be allowed in accordance with tile relevant rules of the Autonomous, Semi-autonomous or Local body concerned provided these facilities are not inferior to those admissible to the deputationist under Government.

Leave salary and bension contribution::- These will be payable by the foreign emplo'er on the scale laid down by the Government from time to tinie.

Joining time pay dnd T.A on transfer:- This will also be payable by the foreign emloyer on transfer to and reversion from foreign service.

Contrihutions:-Th civil servant shall continue to subscribe to the G.P. Fund. Benevølent Fund and the Group Insurance Fund as under Governmentrules and will also repay all the advances from G.P. Fund or fr house building etc. by cash deposit into Government treasub'. xii) Other Benefits: -in all cases of deputation. no fringe benefits attached tip a depuiatioii post e.g bonus. gratLnity. free electricity and ga personal servants other than the benefits

98 specifically mntioned above shall be received by a deputationist if iuch fringe benefits are not admissible to him in his parent depatmenl. Moreover, as a rule, no promotion on improved prospects of service are to be allowed to the deputation ist untl the prior consent of the Government has been obtained.

xiii) Deputation peno:- The period of deputation will ordinarily not exceed three yeas and its extension beyond the period of three years will be deided by the Finance Department in advance on merits.

The deputation policy oitlined in para-1 above shall be applicable in all future cases of deputation incliding cases of civil servants who have already proceeded on deputation but whse deputation terms have not been decided till the date of issue of this letterTxcept sub-para(vii) & (xiii) above which shall apply in all the past cases also.

As the terms and conditins of deputation shall continue to be approved by the Finance Department, all cses of deputation may, therefore, be referred to this department with the detaileFi recommendations on the lines given above failing which the cases may riot be decided with promptitude, Therefore, to eliminate the chances of delay th I e proforma attached shall invariably be sent to this department duly completed inall respects in each case well in advance.

(Authorit)':-Finaiice DepiLS Ieter No.SO(SR.III)FI)/1-123/73, Jated 5.2.1978.