1. The petitioner has filed this petition to challenge the legality and competence of Notification No.SO1lS&GAD)-2/21/97, dated 10-3-1997, issued by the Government of Sind, Services and Generai Administration Department, whereby Mr. Imam Ali Soomro, a retired officer of Education Department, in BPS-20, was re-employed on contract basis for a period of four years as Chairman, Sind Board of Technical Education, Karachi, in place of the petitioner, who was transferred.
2. The brief facts of the case are that the petitioner was appointed as Chairman, Sind Board of Technical Education, vide Notification No. SO (E-VI) 2-146/93, dated 20-8-1996 and in pursuance thereof he took over the charge as Chairman on 21-8-1996 but on 11-3-1997 the petitioner came to know vide Notification dated 10-3-1997, referred to above, that he had been transferred and a retired officer of Sind Education Department had been re-employed on contract basis and posted as Chairman, Sind Board of Technical Education. It has further been stated that the above action of the respondent was in contravention of the provisions of Sind Board of Technical Education Ordinance, (hereinafter referred to as the said Ordinance) was also illegal and ab initio void, inasmuch as according to the provisions of the said Ordinance the appointment of a person as Chairman, Sind Board of Technical Education, is to be made compulsorily for a period of four years from the date he takes over the charge of the office and removal of the incumbent of the office of the Chairman, Sind Board of Technical Education before completion of the tenure period of four years being violative of the provisions of the above said Ordinance, as happened with the petitioner, would be absolutely illegal, ultra vires of the provisions of the said Ordinance ab initio void and the petitioner would be entitled to the reliefs prayed for by him in his petition, which are as under:-- "(a) To declare that the petitioner is entitled to hold the post of Chairman, Sind Board of Technical Education, Karachi, for four years from the date of Notification dated 20-8-1996;
(b) to declare that the Notification dated 10-3-1997 is illegal, null and void hence has no legal effect;
(c) Cost of the petition; and
(d) Any other relief/reliefs which this Hon'ble Court may deem fit and proper under the circumstances of this case also be granted."
3. We have heard the arguments of Mrs. Surraiya Rahim, learned counsel for the petitioner, and Mr. Muhammad Sarwer Khan learned Additional Advocate-General, Sind, who appeared in the Court on pre--admission notice, issued to the respondents.
4. The main thrust of the arguments of Mrs, Surraiya Rahim has been that by provisions of the statute the post of the Chairman, Sind Board of Technical Education is a tenure post for a period of four years from the date of taking over of the charge and once a person is appointed as Chairman, Sind Board of Technical Education and takes over the charge thereof then he is to work as such Chairman for a period of four years and that his transfer or removal from the post of the Chairman, Sind Board of Technical Education, for any reason, whatsoever would be in violation of the provisions of the said Ordinance, illegal ab initio void and notwithstanding any such order, the incumbent would legally be deemed to continue to work as such Chairman for the full tenure period of four years. Mrs. Surraiya Rahim has drawn out attention to section 16 of the said Ordinance, pertaining to the appointment of the Chairman and more specifically to subsection (2) of section 16, which provides that the Chairman is to hold office for a term of four years from the date of Notification of his office and entitles him to reappointment on the expiry of the term of the office. After having perused section 16 of the above said Ordinance we have no dispute with regard to the contention advanced by Mrs. Surraiya Rahim as to the post of Chairman, Sind Board of Technical Education being a tenure post for a period of four years and further that once a person is appointed as Chairman of the Sind Board of Technical Education in accordance with the provisions of section 16(2) of the Sind Board of Technical Education Ordinance then such appointment shall have effect for four years and the officer concerned shall not be liable to be transferred or removed from the said post before expiry of the statutory period of four years. However, the above provisions relating to appointment of the Chairman, Sind Board of Technical Education are applicable to the appointment of Chairman, Sind Board of Technical Education on permanent basis and not to the appointments made by way of a temporary or stop-gap arrangement, and in order to determine as to whether the above appointment was made on permanent basis or was by way of a temporary or stop-gap arrangement, reference would have to be made to language and words of the Notification appointing such Chairman. In the present case the Notification appointing the petitioner as Chairman is dated 20-8-1996 and it will be useful to reproduce the relevant portion of the Notification for the purpose of ready reference for interpretation, which is as under: -- "No. S.O(E-VI)2-146/93.---With the approval of competent Authority, Agha Haq Nawaz Khan, Secretary (B-19) Sind Board of Technical Education, Karachi is hereby transferred and posted with immediate effect as Chairman (B-20) Sind Board of Technical Education, Karachi in his own pay and scale, till further orders relieving Mr. Muhammad Sadiq Rizvi, Principal Saifee Eid-e-Zahabi Institute of Technology, Karachi of the additional charge. "
5. From a bare perusal of the above notification it is absolutely clear that the appointment of the petitioner as Chairman, Sind Board of Technical Education was not on permanent basis or by way of promotion from his original post of Secretary (B-19) to Sind Board of Technical Education and was by way of a stop-gap arrangement till further orders. It is also pertinent to note that by virtue of the aforesaid notification, though the petitioner was posted as Chairman, Sind Board of Technical Education yet he was not allowed the higher scale of BPS-20 of the post of Chairman and was to serve as such Chairman on his own pay and scale and, therefore, the said I, appointment was not to be governed by the provisions of section 16(2) of the Sind Board of Technical Education Ordinance and the respondents were not under any compulsion or obligation to allow the petitioner to serve on the said post for a period of four years.
6. Mrs. Surraiya Rahim vehemently submitted that the above appointment was a permanent and full- fledged appointment as Chairman of the Sind Board of Technical Education and it could not be said to be temporary, interim or stop gap arrangement inasmuch as a procedure had been incorporated in the above Ordinance dealing with the step gap arrangement and drew out attention to subsection (3) of section 16 of the above Ordinance, and submitted that the notification not having being specifically issued under subsection (3) of section 16 would be deemed to have been issued in exercise of the powers of section 16(2) of the said Ordinance and the above appointment was to be treated as a permanent appointment for fixed tenure of four years.
7. Mr. Muhammad Sarwer Khan, learned Addl. A.-G., Sind vehemently refuted the arguments advanced by Mrs. Surraiya Rahim and submitted that the question as to whether the Notification was issued in exercise of the powers under subsection (2) or under subsection (3) of section 16 of the said Ordinance was absolutely immaterial inasmuch as the words used in the impugned notification could not assign permanency to the appointment or support the contention that the appointment was for the fixed tenure of four years and on the contrary very clearly and unequivocally envisaged that the appointment was for a temporary period till further orders and such appointment did not confer any right or entitlement on the petitioner to perform the duties as permanent Chairman of the Sind Board of Technical Education for the statutory period of four years.
8. We have gone through subsection (3) of section 16 of the said Ordinance. The said subsection relates to appointment of a Chairman when the post/office of the Chairman has become vacant temporarily or otherwise, by reasons of leave, illness or other cause, for a period not exceeding one year then the controlling authority by virtue of the powers conferred by the above subsection (3) would make such arrangement for performance of the duties of the office of the Chairman as it may deem fit. The facts and circumstances of the present case are completely different from the facts and circumstances enumerated in subsection (3) of section 16 of the said Ordinance which would have necessitated the appointment of a Chairman on temporary basis. Subsection (3) above caters for the situation where appointment of a Chairman is in existence but the post becomes vacant as the Chairman is unable to perform his duties temporarily on account of leave, illness or any other cause, whereas in the present case the situation was absolutely different as there was no permanent Chairman who was precluded from performing duties prior to the appointment of the petitioner as such Chairman. The incumbent was a part-the Chairman holding additional charge of the above post of Chairman in addition to his post of Principal, Saifee Eid-e- Zahabi Institute of Technology, Karachi. The arguments of the learned counsel for the petitioner as to whether the appointment was made under section 16(2) or 16(3) of the said Ordinance are of no assistance for resolving the above controversy. We are unable to understand as to what difference will be made if the above impugned notification is admitted to have been issued in exercise of the powers conferred by subsection (2) of section 16 of the Sind Board of Technical Education inasmuch as we have already observed that from the language used in the impugned notification we are absolutely satisfied that it did not confer any right or entitlement on the petitioner to be appointed permanently for the period of four years and his transfer or recall from the said post before the expiry of the statutory period of four years was not in violation or contrary to any provision of the said Ordinance and the same does not require to be interfered with.
9. Mrs. Surraiya Rahim in support of her contention that in accordance with the provisions of subsection (2) of section 16 an order of appointment would necessarily be operative for a period of four years and would confer a right and entitlement on the petitioner to continue to serve on the said post of Chairman for a period of four years and that the use of the words "officiating"; "on deputation" and liable to "termination" used in the notification appointing a person to a post having statutory tenure would not have any effect on the true nature of appointment and the term of office fixed by the statute could not be limited or curtailed on the following cases:--
(1) Abdul Qayyum v. Government of Punjab (1975 SCM R 457),
(2) Abdul Qayyam v. Government of Punjab (1976 SCM R 48) and
(3) Alauddin v. Government of Punjab (1982 CLC 515).
10. We are in respectable agreement with the observations made and views expressed in the afore- cited cases and are entirely in agreement that where a statute fixes tenure in respect of a post then appointment under such provision for a period less than the statutory tenure cannot be made by the Government but this relates to appointments made on permanent basis and not to an appointment made by way of interim or stop-gap arrangement, such as in this case, where the petitioner, being the Secretary of Sind Board of Technical Education in BPS-19 was transferred and posted as Chairman of the Sind Board of Technical Education on his own pay and scale and till further orders. The case law relied upon the learned counsel for the petitioner is of no help to the petitioner inasmuch as in all the above three cited cases the issue which required determination was whether transfer or removal of a person appointed on permanent basis to a post having a fixed tenure before expiry of fixed tenure would be proper and valid and it was held that the incumbent could not be transferred or recalled from the post before expiry of the statutory period.
11. The facts of this case are absolutely different and the principle enunciated in the above cases is not applicable to this case.
12. The petitioner has failed to satisfy us that the impugned notification suffers from any illegality or irregularity so as to require interference and his petition is without any substance. Accordingly it stands dismissed in limine.
13. A.A./H-42/K