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Petitioner: SAID QAYUM VS Respondent: SECRETARY, EDUCATION, PESHAWAR
1998 P L C (C
1998 P L C (C.S.) 1218
[Peshawar High Court]
Before Jawaid Nawaz Khan Gandapur and Nasir-ul-Mulk, JJ
Dr. SAID QAYUM
versus
SECRETARY, EDUCATION, PESHAWAR and others
Writ Petition No. 258 with Civil Miscellaneous No. 419 of 1998, decided on 22nd April, 1998..
North-West Frontier Province Board of Intermediate and Secondary Education Act, 1990---
----Ss. 12(8)(i), (ii) & 14---Constitution of Pakistan (1973), Art. 199-- Constitutional petition---Maintainability---Transfer and repatriation---Cavil servant working as Principal of Government Superior Service College was transferred and posted as Chairman, Board of Intermediate
and Secondary Education, by Controlling Authority---After serving for three years, civil servant was repatriated to his parent Department by notification---Civil servant in his Constitutional petition had challenged notification of repatriation on ground that he had been prematurely repatriated to his parent Department before completing his four years' tenure as prescribed under S.14(2) of North-West Frontier Province Board of Intermediate and Secondary Education Act, 1990---Civil servant had further alleged that since his repatriation to his parent department amounted to termination, it was essential that he should have been provided an opportunity of hearing before passing repatriation order---Tenure of civil servant as Chairman, Board of Intermediate and Secondary Education, was not fixed and S.14(2) of North- West Frontier Province Board of Intermediate and Secondary Education Act, 1990, had provided that Chairman, Board of Intermediate and Secondary Education would hold post during pleasure of Controlling Authority-- Controlling Authority, in circumstances, had been conferred unfettered power to remove or transfer a Chairman, Board of Intermediate and Secondary Education without assigning any reason---Four years' period mentioned in subsection (2) of S. 14 of North-West Frontier Province Board of Intermediate and Secondary Education Act, 1990, was the maximum period for which a person could be appointed as Chairman of Board of Intermediate and Secondary Education but by no means it could be interpreted as a normal tenure---Civil servant, in circumstances, had no vested right to remain Chairman for a period of four years---Contention of civil servant regarding right of hearing was also without substance, because order of repatriation was not an adverse order against civil servant, but he was simply repatriated to his parent department in accordance with terms and conditions of his appointment as Chairman of Board of Intermediate and Secondary Education---Even otherwise, Controlling Authority was not obliged to give any reason for repatriation of civil servant---Since no legal right of civil servant had been violated nor order of repatriation had been passed in violation of rules, principles of natural justice could not be pressed into service---Constitutional petition filed by civil servant, thus, had no merits.
Abdul Rauf Rohaila for Petitioner.
ORDER
NASIR-UL-MULK, J.---The petitioner, an employee of the Education Department of the Government of N.-W.F.P. and posted as Principal, Government Superior Science College, Peshawar in the year 1995, was, by notification, dated 4-4-1995, posted/transferred as Chairman, Board of Intermediate and Secondary Education, Peshawar, by the Governor, N.-W.F.P. in exercise of his powers as Controlling Authority under sections 12(8)(i) and (ii) of the N.-W.F.P. Board of Intermediate and Secondary Education Act, 1990 (called the Act). After serving for three years, the petitioner was repatriated to his parent department by Notification, dated 13-4-1998 and by the same notification, Professor Muhammad Akram, Principal, Government Post-Graduate College Bannu, was appointed as Chairman, Board of Intermediate and Secondary Education, Peshawar for a period of three years till the pleasure of the Controlling Authority, The petitioner through this Constitutional petition challenges the Notification, dated 13-4-1998 on the ground that he has been prematurely repatriated to his parent department before completing his four years' tenure prescribed under section 14(2) of the Act.
2. At the hearing of the petition in motion the learned counsel, besides pressing into service section 14(2) of the Act, argued that repatriation of the petitioner to the parent department amounted to termination of his service as Chairman of the Board and therefore, it was essential that he should have been provided an opportunity of hearing before issuance of the impugned notification.
3. The power to appoint Chairman of the Board from amongst the employees/already serving in other departments vests in the Governor, as Controlling Authority, under section 12(8)(ii), and it was in exercise of this power that the petitioner was appointed as Chairman. Section 14 of the Act provides for the terms and condition of the appointment of the Chairman, subsection (2) whereof reads as under:---
"The Chairman shall hold the post during the pleasure of the Controlling Authority for a term not exceeding four years."
Section 14(1) prescribes that the Controlling Authority shall determine the terms and conditions of appointment of the Chairman. The notification whereby the petitioner was appointed provided that the terms and conditions of the petitioner's appointment would be settled in consultation with the Finance Department. It seems that no special terms and conditions were later on settled. Therefore, we have to rely upon the provisions of section 14 read in conjunction with the notification of appointment. The tenure of the petitioner as Chairman was not fixed. Subsection (ii) of section 14, reproduced above, provides that the Chairman shall hold the post during the pleasure of the Controlling Authority. This clearly confers upon the Controlling Authority the unfettered power to remove or transfer a Chairman without assigning any reason. The four years period mentioned in subsection (2) is the maximum period for which a person can be appointed as Chairman but by no means can it be interpreted as a normal tenure. Thus, the petitioner had no vested right to remain Chairman for a period of four years.
5. The impugned notification also shows that the new incumbent has been appointed for a period of 3 years, for which period the petitioner has already served as Chairman. The opinion of the Government of N.-W.F.P. Education Department placed on the file also reveals that the normal tenure, as directed by the Controlling Authority, should be a period of three years. The Controlling Authority in the normal way repatriated the petitioner to his home department after having served the Board for three years.
6. The argument regarding right of hearing is also without substance. The impugned order is not an adverse order against the petitioner. He was simply repatriated to his parent department in accordance with the terms and conditions of his appointment as Chairman of the Board. Furthermore, as stated above, the Controlling Authority was not obliged to give any reason for the repatriation of the petitioner. In such circumstances, the principles of natural justice cannot be pressed into service.
7. Since no legal right of the petitioner has been violated nor has the impugned order been passed in violation of the rules, the writ petition has no merit and is, therefore, dismissed in limine.
A.A./99/P Petition dismissed.