IJAZ ANW AR, J. - Through this petition, the petitioner has called in question his repatriation order dated 9.5.2017 and claimed the following prayer:- "It is therefore humbly prayed that this Hon'ble Court may decide as under:- A.The Chairman, Khyber Pakhtunkhwa is entitled to complete three years of his tenure as provided in Section 3(b) in KPK Service Tribunal (Amendment Act, 2013 and in view of Article 4, 5 of the Constitution and decision of Supreme Court reported as PLD 2013 SC 501 whereby the question of law as involved in the case under consideration has been decided requiring obedience in terms of Article 189 and Article 190 in the Constitution of Pakistan.
B.The impugned order of repatriation dated May 9, 2017 issued by provincial government is unlawful being in conflict with Section 3(b) of the above mentioned KPK Service T ribunal (Amendment) Act, 2013.
C.The decision of the Administration Committee of Peshawar High Court referred to the letter issued by the Registrar of Peshawar High Court dated 03.06.2017, being a executive, consultative and administrative authority is subject to judicial review , requiring the findings of the Administration Committee to be brought in consonance with the constitutional provisions laid down in Article 189 and 190 of Constitution of Pakistan to be read with the judgment of Supreme Court reported as PLD 2013 SC-501 .
D. Consequently , the impugned notification of repatriation of petitioner issued by provincial government may be declared as unlawful and ineffective against petitioner and the petitioner may therefore be allowed to complete his tenure of three years since his appointment as the Chairman of the Tribunal, in pursuance of the notification of the appointment issued by the provincial government of Khyber Pakhtunkhwa as Annexed A.
2. The facts as narrated in this petition are that vide notification No. SO (E.I) E&AD/9-126/2015 dated January 5, 2015, Government of Khyber Pakhtunkhwa Establishment and Administration Department has appointed the petitioner as Chairman, Khyber Pakhtunkhwa Service Tribunal for a period of three years or till attaining the age of Sixty years with effect from 05/01/2015.Through the impugned notification dated 9.5.2017, the Provincial Government has with the consultation of the Hon'ble Chief Justice of Peshawar High Court, repatriated the services of the petitioner . The petitioner claimed to have submitted a letter No.1310-1315/ST , dated 12/05/2017 for the withdrawal of the notification in respect of his repatriation, that was followed by a reminder dated 19.5.2017.
The petitioner then submitted a Refere nce to the Administration Committee of this Court against the same repatriation order , which was regretted by the Administration Committee of this Court, the order was conveyed to him vide letter No.10039/Admn, dated 03/06/2017 communicating the following reasons:- "While considering the representation against repatriation of Mr. Muhammad Azeem Khan Afridi, Chairman, Khyber Pakhtunkhwa Service Tribunal to High Court, the Administration Committee held that the repatriation of judicial officers is the prerogative of Hon'ble the Chief Justice which he has exercised in the case of Mr. Muhammad Azeem Khan Afridi. The Committee endorsed the same and directed that he should report immediately to High Court".
3. The learned counsel for the petitioner was heard in motion. He contended that the appointment of the petitioner as Chairman, Khyber Pakhtunkhwa Service Tribunal is a tenure posting and governed under section 3 (b) of the Khyber Pakhtunkhwa Service Tribunal Act, 1974, where under the petitioner has to complete a period of three years and before completion of the tenure period; the order of repatriation is legally not tenable. The learned counsel for the petitioner argued that by virtue of the reported judgments of the Apex Court PLD 2013 SC-501 , the Khyber Pakhtunkhwa Service Tribunal was given independent status to uphold the separation of judiciary from the executive, thus the laws relating to the establishment of Services Tribunal was amended pursuant to the above judgment of the Apex Court. Learned counsel for the petitioner has also questioned the decision of the Administration Committee of this Court whereby the reason of repatriation has not been disclosed but considered it to be the prerogative of the Hon'ble Chief Justice . He argued that where the law provides posting/appointment for a specific tenure period, the Hon'ble Chief Justice was left with no prerogative. The learned counsel for the petitioner further argued that in view of the latest pronouncement of the Apex Court reported in PLD 2016 SC-961 , every such administrative order of the High Court that violate any of the provision of law is questionable before this Court in constitutional jurisdiction.
4. To appreciate and consider the arguments of the learned counsel for the petitioner , we may refer to the amended provision of Service Tribunal Act, 1974, whereby appointments of the Chairman are made in the Khyber Pakhtunkhwa Service Tribunal. This amendment was inserted vide Khyber Pakhtunkhwa Act No.X of 2013. Section 3 is reproduced for convenience:- 3.Tribunal :--(1) The Governor may, by notification in the official gazette, establish one or more Service Tribunals and, where there are established more than one Tribunal, the Governor shall specify in the notification the class or classes of civil servants in respect of whom or the territorial limits within which, each such Tribunal shall exercise jurisdiction under this Act.
(2)---- (3)- A Tribunal shall consist of--- (a)- a Chairman, being a person who [is], has been, or is qualified to be, Judge of High Court; and (b)-four members, two of whom shall be from amongst District and Sessions Judges and two from amongst the civil servants in BPS-20 and above] (4)-The Chairman and members of a Tribunal shall be appointed by the Governor in consultation with the Chief Justice of the Peshawar High Court.] (5)--- (6)--- 3A.---- Section 3-B is also reproduced, which relates to tenure and other terms and conditions.
3-B. Tenure, terms and conditions of service of Chairman and members .---(1) The Chairman and a member shall hold office for a period of three years or until he attains the age of sixty years, whichever is earlier , and shall not be eligible for reappointment: Provided that if a judge of the High Court is appointed as Chairman, he shall hold office for a period of three years or until he attains the age of superannuation as judge of the High Court whichever is earlier .
(2)-In case, a retired judge of the High Court is appointed as Chairman under clause (a) of sub-section (3) of section 3, he shall hold of fice for a period of three years and shall not be eligible for re-appointment.
(3)-The other terms and conditions of service of the Chairman and members shall be such as may be determined by the Governor .
5. Admittedly , the petitioner is an officer of the status of District & Sessions Judge (BS-21) and has his seniority amongst other Judicial Officers of the Subordinate Judiciary . It is pertinent to mention here that in the appointment of the Members and Chairman of the Tribunal, the Chief Justice Peshawar High Court has been given the meaningful consultative powers because undue the un amended sub-section 4 of section 3 of the Service Tribunal Act, 1974 no such authority was expressly given. The un amended provision was:- "The Chairman and Members of a Tribunal shall be appointed by the Governor on such terms and conditions as he may determine".
6. It is a matter of record that every appointment on these Ex-cadre posts are considered to be on deputation, because for every such posting, period is required to be specified. Similar is the case of Chairman of the Service Tribunal, who is in fact nominated by the Hon'ble Chief Justice for his appointment for specific period of three years or until he attains the age of Sixty years whichever is earlier . Moreover , the officer while posted under the Provincial Government remained under the administrative powers of the Hon'ble Chief Justice, because for his work and conduct, he remained answerable to the High Court. Though, it has not been specified in the amended section 3B of the Service Tribunal Act, 1974, how to repatriate or cut short the tenure of the Chairman of the Service Tribunal.
But the fact remains that the authority , to appoint and to hold the post of Chairman Service Tribunal remains with the Hon'ble Chief Justice, suppose the officer is to be proceeded departmentally for any of his misconduct; the High Court would still wait for the complet ion of his tenure or to allow him to retire on superannuation. Section 21 of the General Clauses Act, 1897 will come into play, where an authority has the power to appoint an individual he has the power to remove also.
7. Apart from this fact, all these Ex-cadre posts are considered as on deputation to the Provincial Government, the main scheme of the concept of deputation is that it is at the consent of lending and borrowing departments and the incumbent of the post have no right, whatsoever , to ask for completion of the tenure or have any right to remain as such. At any time, the lending department can require the services of its officer by repatriating him and similar is the case with borrowing department; they can relieve or spare him as no longer required.
8. The Hon'ble Supreme Court of Pakistan has in a number of judgments considered the posting of officers on deputation. In an identical case reported in 2011 SCMR 1688 , the Apex Court dismissed the petition filed under Article 184 (3) by a Special Judge whose services were repatriated and who claimed that his tenure posting as Special Judge for three years could not be curtailed by Hon'ble Chief Justice Lahore High Court. The Apex Court refused to interfere in the repatriation of the Special Judge and held as:- "On the touchstone of the criterion as mentioned herein above, we have examined the question as to whether in this case the provisions as enumerated in Article 184 (3) of the Constitution can be invoked?. The answer would be in negative for the simple reason that for all practical purposes the petitioner is under the administrative control of Lahore High Court Lahore and besides that now he has got no lien against the post of Special Judge Central, Rawalpindi being deputationist and his services have already been repatriated. By no stretch of imagination the learned Lahore High Court Lahore can be directed to refrain from initiation of any disciplinary action as this aspect of the matter exclusively falls within its domain of jurisdiction".
9. In order to appreciate the amended provision of section 3B, it will be necessary to go into the background of the amendment. What we gathered from the relevant paras of the reported judgment PLD 2013 SC-501 . The intension of specifying 3 years was because of the fact that previously contract appointments of the Retd Judges were extended repeatedly from time to time. Thus the Hon'ble Supreme Court restricted that tenure to only 03-years and that too was subjected to the consultation of the respective Chief justice of the Province.
10. Mere posting under section 3B of a Chairman for 03-years cannot be considered sacrosanct, and that is subject to modification/curtailment at the exigencies of service.
11. The consistent view of the Superior Court on the tenure of the deputationist are that deputationist did not have any vested right to remain on the post for ever or for a stipulated period. The deputationist could be ordered to be repatriated to the parent department at any time without assigning any reason. Similarly , the parent department is not obliged under the law, to assign any reasons for his repatriation. Thus, the Hon'ble Administrative Committee of this Court has rightly regretted the reference of the petition, by holding the repatriation as prerogative of the Hon'ble Chief Justice.
12. In expressing the above view, we are fortified by the judgments of the Apex Court reported in 2014 SCMR-799 , 822, 2011 SCMR-1688 , 2010 SCMR-378 -618.
13. For the above stated reasons, this petition being misconceived and have no merit, is dismissed accordingly .