1. GHULAM MUSTAFA MUGHAL, CJ. - The captioned petition is filed under Section 44 of the Azad .Jammu & Kashmir Interim Constitution Act, 1974, whereby it is requested that the respondents may be restrained from hindering and interrupting in discharge of duties of the petitioner as Managing Director Azad Jammu & Kashmir Teachers Foundation.
2. Facts forming the background of the instant petition are that petitioner was serving as Divisional Director Education Schools B-20 when she was transferred and posted as Managing Director Azad Jammu & Kashmir Teachers Foundation vide notification dated 25.10.2011. The petitioner claimed that as she has been appointed on a tenure post, therefore, has a right to continue as such for maximum period provided under Section 7(2) of the Azad Jammu & Kashmir Teachers Foundation Act, 1997. It is further prayed that after appointment of the petitioner as Managing Director respondents have no authority to curtail her tenure in the garb of the notification dated 10.04.2012 whereby after attaining the age of superannuation she stood retired from Education Department.
3. The petitioner also challenged the summaries prepared by the Minister Education as well as Secretary Education whereby it is requested that petitioner may be appointed on contract basis.
4. The petition was contested by the respondents by filing written statement. Precise stand of the respondents is that petitioner is not aggrieved because she has been retired from service after completion of the age of superannuation vide Govt, notification dated 10.04.2012, hence, she is not entitled to hold the post of Managing Director Teachers Foundation and at present she is usurping the said office. It is pleaded by them that petitioner could hold the post only if the competent authority would have extended her appointment after issuance of the notification dated 10.04.2012.
5. It is further pleaded that the competent authority has refused to appoint her on contract basis and summary in this regard has been rejected on 18.01.2013.
6. Syed Zulqarnain Raza Naqvi, the learned counsel for the petitioner argued that petitioner was serving as Divisional Director Education Schools B-20 when stood transferred and posted as Managing Director Teachers Foundation vide notification dated 25.10.2011. Referring to Section 7(2) of the Azad Jammu & Kashmir Teachers Foundation Act, 1997 the learned counsel maintained that once Managing Director Teachers Foundation is appointed it would be deemed to have been appointed for a period of 3 years as envisaged - under sub-section (2) of Section 7 of the said Act.
7. The learned counsel argued that statutory tenure of the posting of the petitioner cannot be curtailed by the Govt., rather it can be extended for a period of one year after expiry of 3 years. He further argued that the Govt, is competent to remove the Managing Director Teachers Foundation under sub-section (3) of Section 7 of the Teachers Foundation Act on the ground of inefficiency, unsuitability and misconduct after providing him an opportunity of hearing. The learned counsel submitted that different summaries have been submitted on behalf of Minister Education as well as Secretary Education whereby an impression has been given that petitioner has been appointed for remaining period of her service and it is proposed that she may be appointed on contract basis, hence, these summaries are without jurisdiction and mala-i.e and in fact a case has been prepared by the respondents for relieving the petitioner from the post of Managing Director Teachers Foundation before completion of statutory tenure. In support of his submission the learned counsel placed reliance on Azad Jammu & Kashmir Teachers Foundation Rules which provide that appointment can be made by transfer on deputation from the Director Public Instructions Schools Education or holders of equivalent post. He argued that even in the rules framed under Azad Jammu & Kashmir Teachers Foundation Act it is not mentioned that the officer posted from Education Department will have to serve subject to the pleasure of the Government or for the remaining period. The learned counsel in support of his submissions placed reliance on the following case-law:-
(1) Writ Petition No. 172/09 titled Maulana Shab- ud-Din Madni v. Azad Govt. & others decided on 14.09.2009;
(2) Col. (Retd.) Masooa-ul-Hassan v. Azad Govt, of State of AJK through its Chief Secretary and 2 others [PLJ 1997 AJ&K 65]
(3) Abdul Qayyum Qureshi v. The Government of Punjab, etc. [1975 SCM R 457], In the first case relied upon by the learned counsel for the petitioner appointment of the petitioner therein was made under the provision of Azad Jammu & Kashmir Ulama & Musheikh Council Act, 1999. Under Section 3(4) of the said Act the Govt, was empowered to appoint any member of the Ulama & Musheikh Council as its Chairman whose appointment is subject to pleasure of the Govt.
8. The office of the Vice Chairman Ulama & Musheikh Council was created under the same Act. Under sub-section (6) the appointment of the Vice Chairman was not subject to the pleasure of the Govt, rather was for a period of 3 years. This Court while relying upon the judgment rendered in Col. (Retd.) Masood- ul-Hassan's case reported as PLJ 1997 AJK 65. Observed that Govt, cannot curtail the statutory tenure of the petitioner therein without amending the Act.
9. In Col. Masood-ul-Hassan's case referred to herein above the petitioner was appointed as Managing Director Azad Kashmir Small Industries Corporation after his retirement from army which was a tenure post. Thereafter, the Govt, intended to remove him. Ultimately after considering different pronouncement of the superior Courts of Azad Jammu & Kashmir and Pakistan the removal was set aside and it was held as under:- "From the perusal of the above-referred provision it becomes crystal clear that the post of the Managing Director of the Corporation is a statutory post having a fixed tenure of three years subject to the provisions of Sections 8, 9 and 10 of the Act. It shows that the statutory period can be curtained by the Government on account of the reasons specified in Section 8 and 9 or the Managing Director can tender his resignation under Section 10. In the present case no such occasion has arisen, therefore, Section s 8, 9 and 10 have got no application. For this reason the Government had no right to curtail the statutory period of posting of the petitioner as Managing Director of the Corporation."
10. In Abdul Qayyum Qureshi's case referred to herein was resolved as under:- "After hearing the petitioner at some length, we are of the view that the learned Judges in the High Court were right in thinking that the tenure of the petitioner's appointment, in terms of sub-section
(2) of Section 14 of Ordinance, had commenced from the date of his original appointment. It is true that in the Notification of the 12th December, 1970, 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, sub-section (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 of 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 sub-section (3) of Section 14 of the Ordinance. Such being the case the initial appointment did not fall under sub-section (3) of Section 14 of the Ordinance, irrespective of the terminology used in the Notification."
11. Ch. Shaukat Aziz, the learned AAG contended that being civil servant the petitioner was transferred and posted as Managing Director Teachers Foundation on temporary basis. The learned counsel further contended that she had a right to continue her service till her retirement. He argued that she reached the age of superannuation and stood retired vide Govt, notification dated 10.04.2012 and thereafter she is usurping the office of Managing Director Teachers Foundation, hence, cannot claim tenure posting because the same is not mentioned in her appointment order. The learned counsel contended that petitioner has moved to the Court with unclean hands and the stand of the petitioner is contradictory because she herself attempted for extension of her appointment on contract basis and got moved different summaries for the purpose. He argued that the petitioner cannot be allowed to blow both hot and cold in the same breathe and take self-destructive pleas for holding the post of Managing Director Teachers Foundation.
12. We have heard the learned counsel for the parties and gone through the record of the case.
13. The objection of Ch. Shaukat Aziz, the learned AAG that petitioner was transferred and posted on temporary basis vide notification dated 25.10.2011 is devoid of any force in view of rule of law laid down in Col. (Retd.) Masood- ul-Hassan's case referred to herein above. The petitioner herein at the time of posting her on present assignment was serving as Divisional Director Education Schools B-20. She was transferred and posted as Managing Director Teachers Foundation without there imposing any condition that she will service for remaining period of her service. The intention of the authority stands ascertained from the said notification because the authority has not imposed any condition or restriction in the order. An identical question was also raised in the Col. (Rtd) Masood- ul-Hassan's case as the petitioner therein was also transferred and posted as Managing Director Azad Kashmir Small Industries Corporation. The objection was resolved by the Court in the following manners:- "There is another aspect which cannot be ignored; that at the time when the petitioner was appointed as Managing Director of the Corporation, it was not laid down in the posting order by the Government that he shall remain in charge of the post for his unexpired period of contract.
14. Therefore, the only conclusion which can be drawn is that the petitioner was appointed as Managing Director of the Corporation on the terms and conditions as laid down in Section 6 of the Azad Kashmir Small Industries Corporation Act, 1993. The Government, therefore, was not legally competent to remove the petitioner from the post before expiry of three years time limit."
15. In view of above it becomes crystal clear that the authority has transferred and appointed the petitioner on a tenure post without imposing any condition that she will serve subject to pleasure of the Govt, or till her retirement, therefore, irresistible conclusion is that petitioner has been appointed for fixed tenure mentioned in Section 7(2) of the Azad Jammu & Kashmir Teachers Foundation Act, 1997 i.e. 3 years. The Govt, is competent to extend the appointment but cannot curtail the statutory tenure. An appointee of a tenure post has full right to enjoy the statutory period of his tenure provided that he/she is removed by the Govt, or competent authority on account of misconduct as has been held by the learned Division Bench of the Karachi High Court in Moazzam Hussain Khan's case [PLD 1958 (W.P) Karachi 35]. At page 40 of the report their lordships observed as under:- "it may also be mentioned , connection that the "tenure post" is defined tin, - fundamental Rule 9(30-A) as under:- "Tenure post" means a permanent post which an individual Government servant may not hold for more than a limited period.
16. Note.-In case of doubt, a Local Government may decide whether a particular post is or is not a "tenure post".
17. In the present case, keeping in view the definition of "tenure post" as given in the Fundamental Rules, the Government of Pakistan declared the post of Director of Intelligence Bureau as a tenure post and limited its period to i.e years. It goes without saying that the petitioner was entitled to hold the post for the whole term of i.e years."
18. The afore-stated position is further lends support from the case titled Debesh Chandra Das v.
19. Union of India and others reported as AIR 1970 SC 77.
20. In view of above, it can safely be concluded that the petitioner has been appointed for fixed period of 3 years under the Azad Jammu & Kashmir Teachers Foundation Act, 1997, therefore, she can only be removed in case of inefficiency, unsuitability and misconduct under sub-section. (3) of Section 7 of the Azad Jammu & Kashmir Teachers Foundation Act, 1997 not otherwise before completion of her tenure.
21. The upshot of the above discussion is that the petitioner being appointed for fixed tenure shall not be removed till the completion of the said period except by invoking the jurisdiction by the competent Authority under sub-section (3) of Section 7 of the Azad Jammu & Kashmir Teachers Foundation Act, 1997.