The petitioner has by this Constitutional petition challenged an order of the Government of the Punjab dated the 17th of June 1978, the relevant portion of which is as follows: "Mr. Alla-ud-Din, Chairman, Punjab Textbook Board (on deputation) is repatriated to his original appointment as Secretary, Board of Technical Education and posted as such with immediate effect.
On recall from leave, Mr. Muhammad Munawwar Khan (Grade-20) Secretary to Government of Punjab is posted as Chairman, Punjab Textbook Board (on deputation) in his own pay and grade and until further order vice Mr. Allah-ud-Din Akhtar repatriated."
2. It is -contended by the petitioner that he continues to hold the statutory appointment of Chairman, Punjab Textbook Board under Punjab Ordinance XLI of 1962 since 26-5-1976, He was not, he claims, on deputation on this post, nor could he be repatriated to the so-called `original appointment' before the expiry of the prescribed tenure of three years. The case of the Government in resisting the petition is that he held a temporary stop-gap appointment as -was apparent from the words "on transfer" and "officiating" used in his appointment letter (Annex. B). As regards the other letter (Annex. L) which had issued in the name of the Government determining the terms and conditions of his service and describing the tenure of his appointment as three years, it was said that it had issued under the signatures of the Secretary to Government in the Education Department while under the Rules of Business the competent Department of the Government which should have issued such an order was the Services and General Administration Department.
Therefore, this document should altogether be ignored. Surprisingly this defence has been set up by the Education Department itself. It has also been contended that earlier the petitioner was holding another statutory appointment of Chairman, Board of Intermediate and Secondary Education, the tenure whereof had not expired when he was appointed on this post and in view of the conflict of the tenures the petitioner could not claim this post as a matter of right, for its full tenure. As an alternative it appears, it has also been suggested that the petitioner had of his own proceeded in earned leave from this statutory appointment and there was no provision made in the law for making temporary arrangement and the appointment that was made could on the same reasoning, continue for three years. According to the Government, the petitioner's appointment was on deputation from one statutory post to the other and was temporary in its nature.
3. The present de facto incumbent of the office Mr. Muhammad Munawwar Khan has independently contested the petition and has taken up two preliminary objections. The first is that the petitioner could not describe himself as Professor and for such misdescription he is liable to penal action under sections 417 and 419, P. P. C. The other objection concerns the claim of the petitioner to be enjoying two statutory tenures at the same time, one in the Board of Intermediate and Secondary Education and the other in the Textbook Board. It has been said that earlier he held the post of Secretary, Board of Technical Education set up under Ordinance XXXIX of 1962 and it was on that reasoning a case of combining at one and the same time three statutory appointments which he cannot on any basis, claim. The other grounds taken up are the same that have been urged on behalf of the Government.
The fact that the post of Chairman, Textbook Board, is a statutory post having a fixed tenure of three years is apparent from the various provisions of Punjab Ordinance XLI 1962. The Punjab Textbook Board has been made by the Legislature "a body corporate" (section 3). It "consists of a Chairman and two whole time Directors appointed by the Government and not more than two ex officio Directors appointed by the Controlling Authority (section 4(l), subsection (2) of section 4 provides a3 follows : "The Chairman and the whole time' Directors shall--
(a) hold office for a term of three years unless sooner removed by Government or, in the case of a Government servant on deputation recalled from deputation or in case resignation is tendered and accepted."
S. It follows that the statutory tenure can be limited, curtailed or interrupted on the happening of any of the following prescribed events :--
(1) Removal by Government fog reasons specified in section 5(2!.
(ii) Recall of Government aervaut on deputation.
(lit) Tender of resignation and its acceptance.
6. The first arid the third grounds are ruled out in this case because the: required factual basis for the same is entirely lacking and none of the respondents has made it a plank. As regards the second ground, in its report the Education Department stated "tile terra Government servant is wider in denotation than the term civil servant" and without owning the ,petitioner as Government servant proceeded to stare that "it is immaterial whether he was a Government servant or not". The expression "recall of Government servant on deputation" would necessarily imply that the incumbent of this tenure post should be a Government servant before being appointed to it. Then alone can there be a case of recall to a. Post earlier held, The post earlier held by the petitioner was that of Chairman. Board of Intermediate and Secondary Education. It was a statutory post It also had a fixed tenure of four years (section 14) of West Pakistan Ordinance XVIII of 1961. The appointment of the Chairman was required to be made by the Controlling Authority, and the Governor of Punjab or his nominee, was to be the Controlling Authority. It was not the Government, but the Controlling Authority which made the appointment and determined the terms and conditions of his service, other than those prescribed by the Ordinance XVIII of 1961. The Controlling Authority was in this case persona designate, an entity different from the Government and on, no principle, could the Chairman so appointed if not already a Government servant, be said to become a Government servant.
7. A slight diversion here may illustrate the distinctness and the identity of the persona deslgnata with greater clarity. In the University of the Punjab Act, 1973 (Act IX of 1973) the Governor of the Punjab was made the Chancellor (section 11). It required legislative amendment to bring such a persona designate under routine governmental control. This was accomplished by Act XVI of 1975 prescribing that "in the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan."
Even this legislative control does not make the persons appointed by the Chancellor Government Servants.
8. In the cast of the Board of Intermediate and Secondary Education. The Chairman is an officer of the Board (section 13). The Board is a body corporate (section 3(2)). The limited purpose for which Board may be taken to be the Government is indicated in section 16(2), and taken to be a Local Authority is indicated in section 19. Government having nothing to do with the appointment of the Chairman, or the determination of the terms and conditions of his service or financing of his remuneration etc. By no reasoning the Chairman can be said to become by such an appointment a Government servant.
9. The learned counsel for Mr. Muhammad Munawwar Khan contended that the petitioner was a Government servant not by virtue of his appointment as Chairman of the Board of intermediate and Secondary Education but by becoming Secretary of the Board of Technical Education. The only argument advanced for saying so was that section 28 of the Ordinance (XXXIX of 1962) made him a public servant. It could not, however, be demonstrated by the learned counsel that every public servant within the meaning of section 21 A of the Pakistan Penal Code was ipso facto a Government servant. Therefore, this argument does not advance the case of the respondent any further.
10. Both the respondents relied heavily on the word "officiating" used while appointing the petitioner as the Chairman of the Textbook Board. It is said that thereby the Government unmistakably and manifestly indicated that the arrangement was temporary, likely to be brought to an end any time.
The learned Assistant Advocate-General then proceeded to cite precedents to support the argument that officiating appointment conferred no right and that tenure was not necessarily to be adhered to. In this connection he referred to West Pakistan Province v. Bashir Ahmed Qureshi (PLD 1959 SC (Pak.) 93), Pakistan v. Hikmat Hussain (PLD 1959 S t (Pak.) 107), Mahmoodul Hasan v.
Islamic Republic of Pakistan (PLD 1973 Lah. 411). The argument of the learned Assistant Advocate- General and the citation of these precedents exhibits complete unawareness of the precise question in issue in this case, and also fails to take note of Government's own position and the law laid down in Abdul Qayyum Qureshi v. Government of Punjab (1975 S.C M R 457), Abdul Qayywn Qureshx v. Government of Punjab (1976 SCMR 48) and Allataldin. .4khtar v. Government of Punjab tW. P. 3195-S/75).
11. In the first case, 1975 SCMR 457 the Supreme Court held as follows "It is true that in the Notification of the 12th December 19'70, his appointment was shown as an officiating appointment and the terms and conditions of his service or deputation were not specified, but the use of a certain terminology, and the absence of the terms and conditions of service could not alter the nature of his appointment. In case of statutory appointments, one has to look at the substance and not at the mere form or terminology used, subsection (3) of section 14 contemplates an ad hoc appointment when the office of Chairman is vacant temporarily or otherwise for- a period not exceeding one year. This ' was not the case when the petitioner was appointed under the Notification of the 12th December 1970. The Notification itself states that the petitioner was being appointed against an existing vacancy, which means that it was a regular vacancy, and not a temporary vacancy, as envisaged by subsection (3) of section 14 of the Ordinance, such being the case the initial appointment did not fall under subsection (3) of section 14 of the Ordinance, irrespective of the terminology used in the Notification."
12. In the earlier case of the petitioners (W. P. No. 3195-S/75) I had held that : "It follows therefore that while a power to make an appointment carries, in this case as well, a power to remove in view of the tenure fixed * by the Legislature under subsection (2) of section 14, such a power cannot be exercised by recourse to expression "officiating", "deputation", "reversion to his parent department", which are in the context of this case mere surplusage. Nor is the appointing authority free to assign residuary cause of public interest as in ordinary transfers and postings as a reason justifying interference with the tenure fixed by the statute. Therefore, in view of the statutory tenure the Government cannot have recourse to the surplusage for interfering with the legislative will. The act, therefore, of terminating the petitioner's tenure by reference to the terms and conditions of his appointment being officiating, on deputation or from a parent department or in public interest cannot hold good."
13. It is admitted by the respondents that the vacancy in the Text-1 book Board which the petitioner filled was a clear vacancy with the full tenure in view. The use of the word "officiating" in the appointment, letter of the petitioner was a mere surplusage, conferring no right on the Government, and in no manner, curtailing the tenure of the statutory post.
14. The absence of the petitioner from such a statutory post while on earned leave when the Ordinance makes no provision for temporary appointment on the post, is of little consequence, 63 American Jurisprudence 732 mentions the effect of such absence in the following words "Temporary absence is not sufficient to constitute an abandonment of an office and does not Ipso facto create a vacancy where no statute fixes the period beyond which the absence must not continue."
Thus where no express provision is made, leave of absence. From a tenure post does not in the ordinary course, interrupt the duration of the tenure or cause a vacancy. On the same reasoning temporary substitute arrangements consistent with the other provisions of the statute, can be made, ;it being implied in the power to make the appointment and the power to grant the leave.
15. As regards the combination of multiple tenure posts the law enunciated in 42 American Jurisprudence 940 may be referred to with advantage. It is as follows : "At common law, and under-Constitutional and statutory prohibitions against the holding of incompatible offices, a person who accepts and qualifies for a second and incompatible office is generally held to vacate, or by implication resign, the first office, so that no judicial proceedings are necessary to determine the title. The successor may at once be elected or appointed, although if the former occupant refuses to vacate the office, his successor may be campelled to take the necessary legal steps to oust him.
The rule that the acceptance of an incompatible office vacates the one already held is applicable notwithstanding that the second office may be inferior to the first, or that the officer before accepting the second office may have publicly declared his intention to continue to perform the duties of the first office, or that his title to the second office may be invalid, or that either office may be held de facto only. By express provisions of the law, the, rule may be limited to ~ particular offices or classes of offices, as were it is provided that a civil office shall be' vacated by the acceptance of a commission to a military office, or that a city office shall be relinquished on acceptance of a Federal office. . The rule that acceptance of a second office operates to vacate one already held when not declared by positive provision of law seems to be based on a presumption of an election between the two offices as evidenced by the acceptance of the second. It is a certain and reliable rule and one that is indispensable for the protection of the public. For the public has a right to know, in the case of attempted incompatible office holding, which office is held and which surrendered, and it should not be left to chance or to the uncertain whim of the office-holder to determine." '
16. It follows, therefore, that the post of Chairman. Punjab Text- book Board is a statutory post, with a fixed statutory tenure of three years which in the case of the petitioner, has not so far expired. This petition is, therefore, allowed with costs against therespondents and the impugned order in so far as it transfers or repatriates the petitioner and appoints respondent No. 2 on the post, is declared to be without lawful authority and of no legal effect,
17. The first preliminary objection of respondent No. 2 being also the subject-matter of a contempt application separately filed by him and not directly connected with the issues involved in this petition, is being disposed of by an order passed today in that application.