PHC rules deputation valid only when another dept formally requires an officer

PESHAWAR: The Peshawar High Court (PHC) has ruled that an appointment on deputation is permissible only when a department formally needs the services of an officer from another department and the matter is processed through the Special Selection Board (SSB).

A bench comprising Justice Syed Arshad Ali and Justice Farrah Jamshed declared the appointment of Khyber Pakhtunkhwa Assembly official Saud Gandapur as assistant excise taxation officer (AETO) in the excise and taxation department illegal and unconstitutional.

In a detailed 10-page judgement authored by Justice Ali, the bench said the circumstances surrounding the appointment indicated that it had not been made in line with the law and appeared to have been influenced by political considerations. "It is a settled principle that deputation is an exceptional arrangement, permissible only when a department, due to exigency of service," requires to borrow the services of an officer from another department.

The court said such a need could arise if recruitment for the post was in progress and no eligible candidate was available within the department, or if the position required specialised expertise that the department did not otherwise have.

"Moreover, the process of deputation must be routed through special selection board (SSB), chaired by the chief secretary of Khyber Pakhtunkhwa, to ensure transparency and compliance with statutory requirements," it stated.

The bench observed that in this case, the excise department had not sought Mr Gandapur’s services, nor did he have any exceptional expertise that would justify his placement on deputation. "The absence of requisition, coupled with lack of specialised qualifications, renders the deputation process irregular and contrary to the prescribed legal framework," it stated.

The judgement added that the legality of his appointment to public office was therefore seriously weakened and that the possibility of political favouritism could not be ruled out.

Observations on public office and legality

The bench stressed that public office was a public trust and said state officials derived their authority from the law and were required to act within its limits.

The court further observed that when public officials crossed the lawful limits of their authority, it resulted in injustice that undermined the rule of law.

Quoting from the judgement, the bench said public authorities in constitutional democratic states were not absolute holders of power, but were bound by the rule of law and required to respect rights guaranteed under the Constitution and applicable laws. Accountability mechanisms existed to examine and remedy any infringement of individual liberties.

Petition by excise department employees

The petition was filed by Dr Azlan Aslam and 49 other regular employees of the excise, taxation and narcotics control department. They challenged Mr Gandapur’s appointment through a notification issued on April 22, 2024.

Advocates Mohammad Asif Yousafzai, Mian Saadullah Jandoli and Irshad Mohmand appeared for the petitioners. They argued that under the procedure for appointments to various posts in the department, six per cent of AETO posts were to be filled by promotion from among superintendents, 54 per cent by promotion from among inspectors, and the remaining 40 per cent through initial recruitment.

According to the petitioners’ counsel, 24 posts were vacant at the time, of which two were to be filled through promotion and 22 through initial recruitment. They told the court that the appointment process had already been initiated by the government, making the respondent’s deputation unlawful.

The bench, citing different judgements of superior courts, said the borrowing department had to first establish the exigency for deputation, and the person being transferred or placed on deputation must possess matching qualifications, relevant expertise and the required experience.