1. ' ABDUL RASHEED MEMON (MEMBER-II).---The appellant came before the Tribunal against Notification No,GS/10(3)30/98/(SOIII), dated 2nd December, 1999 wherein on attaining age of superannuation while posted as Chairman, Board of Intermediate Education, Karachi he was retired from Government Service with effect from 28-11-1999. While citing his education background and the lengthy career the appellant has stated that on February 19, 1998 his services were placed at the disposal of Governor's Secretariat and the then Governor of Sindh acting as Controlling Authority under section 12 of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972 was pleased to appoint him as Chairman of Board of Intermediate Education, Karachi for a fixed tenure of three years exercising powers under section 14(2) of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972. His notification of appointment was issued by respondent No,2 on 10th February and he joined the said appointment on 12-2-1998.
2. Subsequently on joining his posting, his terms and conditions were notified by the Government in the S&GAD vide Notification dated 11-5-1998 which was also communicated to him and he accepted the said conditions and continued to discharge his duties as Chairman upto 2-12-1999 when his retirement was notified from 28-11-1999 on the ground of his attaining the age of superannuation on that date. Respondent No,3 was consequently appointed as Chairman ,to succeed him during the pleasure of the Controlling Authority/Respondent No,2. It has been stated that at the time of the appointment of the appellant as Chairman it was in the knowledge of Education Department, Government of Sindh as well as Controlling Authority that he (appellant) will reach the age of superannuation in November, 1999 but despite that purely on the basis of merit and clean service record he was appointed for a tenure of three years in accordance with section 15(1) of the Boards of Intermediate and Secondary Education Ordinance, 1972. Thus, the Notification dated 2-12-1999 removing the appellant from his post and appointing respondent No,3 in his place was absqlutely illegal, unjust, discriminatory and against law so also against all principles of natural justice. Therefore, the appellant sent a review/representation on 22-12-1999 to the Governor of Sindh requesting for review of the decision of his retirement and recalling of the notification referred to above and to allow the appellant to complete his tenure of service. His said appeal was turned down vide letter dated 19-1-2000 wherein he was informed that "any officer on attaining to age of superannuation cannot continue on deputation. To continue beyond the age of superannuation a contract has to be offered. The competent Authority did not find it expedient to re-employ you on contract beyond the age of superannuation". Against this refusal he came before the Tribunal with the plea that the said letter was issued without appreciating the law applicable thereto and that the said action has adversely affected the respect and good reputation of the appellant. He has prayed that: (a) his removal from the post of Chairman before completion of statutory tenure be declared as illegal and against the settled principles of law; (b) that the appellant be reinstated to allow him to complete his three years as per Notification dated 10-2-1998; (c) that the appellant is entitled to compensation for an amount of Rs,7,61,685 and damages amounting to Rs,5,00,000; and thus respondents be directed to pay Rs,12,61,685. With profit at bank rate to the appellant.
3. The official respondents in their written statements have stated that the appellant was appointed as Chairman, Board of intermediate Education, Karachi on deputation basis for a period of three years with effect from 12-2-1998. However, on attaining age of superannuation he was retired from the service because he was working against the said posting on "deputation basis" which could only be for the period he did not attain the age of superannuation. These terms and conditions were accepted by the appellant and he has drawn all monitory benefits including deputation allowance of 20%. On attaining the age of superannuation as a Professor he was retired from Government service and his deputation with the Board thus ended. Besides, his request for continuation as Chairman was not approved by the Governor/Controlling Authority. Consequent upon his relieving the resultant vacancy was filled in by appointment of Dr. Muhammad Sharif Memon on deputation basis. It has been contested that the appellant was not illegally removed but he was relieved from the said post on attaining the age of superannuation, hence no amount i,e, (pay and allowance) beyond his retirement became due and payable. It has also been contested that the rules did not restrict Governor/Controlling Authority to exercise his power in making, appointment and relieving any incumbent from the said post. The averments of the appellant have been thus denied. Interpretation of section 15(1) of Sindh Boards of Intermediate and Secondary Education, Ordinance, 1972 indicates that no appointment could be made for more than three years at a time and section 14(2) empowers the Controlling Authority to make these appointments on such terms and conditions as, may be determined by him. As for appointment of the respondent No,3 is concerned, it has been clarified that the period of appointment on the deputation basis as Chairman was to be specified in the terms and conditions of his said appointment for a period of three years or till his superannuation whichever is earlier. Since the appellant was not prematurely retired but retired on attaining the age of superannuation, his deputation with the Board also ended on the same date. His appointment on contract basis was not approved as has been done in the case of present incumbent vide Notification dated 27-10- 2000; hence these two cases are distinguishable from each other. The Secretary Education being respondent No,1 has also placed on record Notification dated 2-2-1998 wherein his services were placed at the disposal of Governor's Secretariat for posting in the Board without specifying the period. It has also been contested that the law provided only the maximum period of appointment against the post of the Chairman and that it did not mean to be a tenure post as the said appointment was on deputation, which could not be extended beyond the age of superannuation.
4. A letter, dated 15-11-1999 written by the appellant to the Controlling Authority has also been placed on record wherein he had requested as under:-- "I have been appointed as Chairman vide notification dated 10-2-1998 for a period of three years.
5. My terms and conditions of appointment were settled under Government of Sindh S&GAD Notification dated 11-5-1998. My retirement is due on 29-11-1999. It is humbly prayed that a letter in furtherance to orders of the Governor of Sindh referred to above may be issued so as to complete the remaining period of tenure of three years."
6. ' Thus, the appellant himself knew that he could not continue on the terms and conditions offered to him vide Notification dated 11-5-1998 and had requested for appointment on contract, which was declined by the Competent Authority and he was retired. His period was not extended on contract as has been done in the case of present incumbent, hence the official respondents have denied all claims, holding therein that the appointment was on deputation which ended with the retirement of the appellant as a Professor. He was, therefore, relieved from the said substantive post.
7. ' The Advocate of the appellant while arguing the case of the appellant said that this was statutory appointment on a fixed tenure of three years and made in pursuance of section 12 of the Sindh Board of Intermediate and Secondary Education Ordinance, 1972 and under section 15(1) the Chairman was to hold the office for a term of three years. Appointment for minimum tenure could only be made on local arrangements basis and as a temporary measures. He argued that it was the fixed tenure and not a maximum period for the appointment against the post of the Chairman.
8. Therefore, he should have been continued beyond the age of superannuation either by way of deputation or by way of contract so that the said tenure was completed which was his fundamental right under clause 30(a) of the Fundamental Rules. He also cited the following rulings of the superior Courts, wherein it has been laid down that the appointment on tenure basis will have to continue irrespective of the age of superannuation intervening: ' (1) 1982 CLC 515, (2) 2000 SCMR 489, (3) 1975 SCMR 457, (4) 1976 SCMR 48 and (5)1999 SCMR 197.
9. ' On the point of jurisdiction he cited 1999 PLC (C.S.) 602.
10. ' He, therefore, requested that the prayers asked for by the appellant may be granted excepting that since the said period of tenure stood expired on 9-2-2000, hence he did not press the same excepting the back benefits and compensation for the said period. The Advocate of the private respondents argued the case and pointed out that the appointment of the appellant had never been, that on contract as has been done in the case of his client, in proof of which he has placed on record Notification dated 10-10-2000 which lays down that the appointment of the respondent is on contract for a period of 2 years beyond 9-10-2000 i,e, the age of his superannuation. Thus, he agrees that although the post is a tenure post but the appointment against the said post can be made at the pleasure of the Appointing Authority/Controlling Authority. Thus, the appointment of the appellant which was on deputation basis was not for the tenure period but till the date of superannuation and as the said appointment was not extended, and no contract was offered hence the appellant, in terms of Notification dated 11-5-1998 stood retired on reaching superannuation. In support of his arguments he cited the following rulings: ' (1) 1998 PLC (C.S.) 419, (2) 1998 SCMR 1930 = 1998 PLC (C.S.) 1345, (3)Service Appeal No,98 of 1998 Abdul Baqi Siddiqui and (4)Appeal C.P.L. 1026 of 1999 dated 20-6-1999.
11. ' It is as such clearly established that even though the post is a tenure post, appointment against the said post can be for any period and on such terms and conditions which are determined by the Controlling Authority. A.A.-G. While placing the statements of the two officials respondents on record also argued that the appointment of the appellant was not on tenure basis but on deputation basis, hence he (the appellant) vide his application dated 15-11-1999 had requested the Controlling Authority for the furtherance of his service, so as to complete the remaining period of tenure of 3 years. This also clearly indicates that he could not have continued on deputation basis beyond the age of superannuation, which necessitated appointment on contract basis beyond the age of superannuation. This request of the appellant was not entertained and subsequently respondent No,3 was appointed in his place. His appeal to the Controlling Authority was also turned down on the same analogy vide letter dated 19-1-2000. A.A.-G. Further agreed that there is no provision in law to provide extension in service on deputation and that under rule 14(2) the Sindh Boards of Intermediate and Secondary Education, Ordinance, 1972 the appointment of the Chairman by the Controlling Authority shall be on such terms and conditions as are determined by him. Thus, the appointment of the appellant notified on 11-5-1998 was to be on deputation. This appointment ended on attaining the age of superannuation as no other extension/contract was offered to the appellant beyond that date. Hence there is no question of any monetary benefit accruing to the appellant after that date. The prayers of the appellant are, therefore, not in accordance with the law and hence not admissible. He, therefore, requested for dismissal of the appeal with costs.
12. On going through the averments of the appellant, the officials respondents and the private respondent, we have found that the appointment of the appellant was on deputation basis and ended with attaining the age of superannuation intervening, that no contract was offered to him beyond that date, which fact is also supported by his own application dated 15-11-1999, addressed to the Controlling Authority which declined to offer any contract beyond the age of superannuation. Thus, the appellant had no cause and consequently his appeal is dismissed with no order as to costs.
13. ' Given under our hands and Seal of the Tribunal this 12th day of April, 2001 at Karachi.