IHSAN-UL-HAQ. CHAUDHRY, J.--The petitioner through this Constitutional petition has prayed that notification dated 13-01-1997, retiring the petitioner on 17-4-1997 is without lawful authority and of no legal effect.
2. The relevant facts are that the petitioner on 10-11-1996 was posted as Additional Director, Public Instructions (Colleges), Punjab, Lahore, when he was transferred and posted as Chairman, Punjab Text Book Board, Lahore, vide Dr. Zahid Hussain Kazmi who was transferred and posted as Principal, Government College Rawalpindi. The petitioner retired from Government service on 17-4-1997 after attaining superannuation age. The petitioner was informed that he has seized to be Chairman of respondent No. 2. The petitioner filed this Constitutional petition. It was stated that according to clause (a) of section 4(2) of the Punjab Text Book Board Ordinance, 1962 (hereinafter to be referred as Ordinance, 1962) the post of Chairman is a tenure post, therefore, his retirement from the Government service would not effect his status as Chairman of respondent No. 2. This petition was admitted to hearing and notice was issued' to the respondents, who have appeared and contested the petition. In the meanwhile one Tahir Pervaiz filed a writ petition No. 27600/97 wherein he impleaded the petitioner and the respondents. It was prayed that the petitioner be called upon to show under what authority of law he is holding a public office of Chairman Text Book Board. This writ petition was also admitted and was directed to be heard along with the writ petition of the petitioner as the common questions of law and facts were involved.
3. The leamed counsel for the petitioner argued that the post of Chairman, Text Book Board is a tenure post as per section 4(2) of the Ordinance, 196.2, therefore, retirement from the Government service would not in any way curtail the period of posting of the petitioner as Chairman. The learned counsel in this behalf has placed reliance on the judgments in the cases of Professor Alaud Din Akhtar, Chairman, Punjab Textbook Board v. Government of the Punjab (PLD 1979 Lahore 324 = 1982 CLC 515), Ch. Muhammad Bakhsh v. Government of Punjab (PLD 1989 Lahore 175), G.M. Malik, Chairman, Board of Intermediate and Secondary Education, Faisalabad v. Province of Punjab (1990 CLC 772) and Prof. M.A. Saeed v. Secretary Education Department and others (PLD 1992 (C.S.) 259).
4. On the other hand, learned Addl. A.G. Argued that the petitioner was not posted on contract basis or on permanent basis but it was merely a transfer, therefore, his case would not be covered under section 4(2) of Ordinance, 1962. It is added that tenure of deputation has clearly been mentioned in clause (9) of the terms and conditions of deputation. While Mr. Farrukh Amin, Advocate for the petitioner in the connected writ petition argued that the petitioner was only appointed on ad hoc basis and that was covered by Regulation 23 of the Punjab Text Book Board Employees Service Regulations (hereinafter to be referred as Regulations of 1981). It is added that the cases of Prof. M.A, Saeed and G.M. Malik (supra) are clearly distinguishable while case of Prof. Alaud Din Akhtar and Ch. Muhammad Bakhsh (supra) are not relevant.
3. I have given my anxious consideration to the arguments, advanced on behalf of the learned counsel for the parties and gone, through the record, relevant provisions of Ordinance, 1962, Regulation of 1981 and the precedent cases. The first question for determination in my view is whether the Chairman can be posted for a shorter period than three years? The relevant portion of section 4 of Ordinance, 1962, reads as under:- "4. CONSTRUTION OF THE BOARD.
(2) The Chairman and the whole-time Directors shall-
(a) hold office for a term of three years unless sooner removed by Government, or, in case of Government servant on deputation, recalled from deputation or in case resignation is tendered and accepted: Provided that in the case of Chairman or a Director of the West Pakistan Textbook Board appointed to the Punjab Textbook Board, the initial term of appointment shall not extend beyond the unexpired portion of the term of appointment to the former Board;
(5) be eligible for re-appointment for such further period or periods as Government may, from time to time, specify;
(c) receive such salary and allowances as Government may determine; and
(d) perform such duties and functions as are assigned by this Ordinance or by the Regulations and Rules made thereunder."
6. It is clear from section 4(2), reproduced above that the Government servant on deputation can be recalled earlier or he may resign before the expiry of tenure of 3 years. Now I would refer clause 9 of the terms and conditions of deputation of the petitioner as notified on 13-1-1997. The same reads as under:- "9. TENURE OF DEPUTATION The officer shall work in the Board with effect from 11-11-1996 on deputation basis upto 17-4-1997 (A.N.) i.e. The date of his retirement. However, Government reserves the right to repatriate the officer at any time before the completion of the said tenure without further notice."
7. This would amount to recall the petitioner from post of Chairman. This is not all. The petitioner was transferred on deputation. He proceeded to accept the terms and conditions, therefore, he is bound by the same. It is relevant to mention here that he challenged the terms and conditions also but after having accepted the same and availing the benefits as the writ petition was filed on 8-4- 1997.
8. This was not appointment under section 4 of the Ordinance, 1962 as there was no mention of this provision in the notification of his transfer dated 10- 11-1996. It is pertinent to mention here that his predecessor was posted in the Board on 8-5-1994 and was transferred before completion of three years. In this way the Government and predecessor of the petitioner also did not treat it a posting for three years. The case of G.M. Malik (supra) is clearly distinguishable as he was appointed for a period of three years and it was held that Government was not to alter or modify or reduce, the term of tenure. In the circumstances it was held that retirement from the Government service would if ipso facto leads to his retirement from the service of Board. While in the case of Prof. M.A.
Saeed (supra) it was held that holder of tenured post does not retire on attaining the age of superannuation but in that case again the appointment was made under section 14 of the Board of Intermediate and Secondary Education Act, 1976 as in the case of G.M. Malik (supra), therefore, the appointment was treated for three years. While in the case of petitioner no reference, to section 4 of the Ordinance, 1962 has been made but on the other hand his tenure has been specified. The same was permissible under the Regulation 23. Moreover, it was not an appointment but simply a transfer as Government servant, therefore, the petitioner could not hold the post of Chairman Text Book Board after retiring from Government service on 17-04-1997 (A.N.).
9. The upshot of above discussion is that this, petition is dismissed with costs.