ALAUDDIN AKHTAR vs GOVERNMENT OF THE PUNJAB AND ANOTHER

The petitioner held the statutory post of Chairman, Board of Intermediate and Secondary Education, Lahore. He was threatened with removal therefrom. He has filed a petition under Article 199 of the Constitution claiming that his tenure as Chairman has not expired and that it will expire on 8th January 1979, and that if any action has been taken to remove him from that post the operation of the same be stayed pending decision of this petition.

2. In its report Government of the Punjab has taken up the position that the petitioner was appointed as officiating Chairman, Board of Inter--mediate and Secondary Education, Lahore for a period of four years with effect from 9th January; 1975, on deputation from Board of Technical Education, Punjab, Lahore, subject to the condition that the Controlling authority or the Government may terminate the deputation with the Board of Intermediate and Secondary Education, Lahore, earlier in public interest. Such a power of terminating his deputation was expressly reserved by the control--ling authority and such a reversion to his parent office is in conformity with the terms and conditions offered to him. It was also stated that the Govern--ment has not so far issued any orders relieving the petitioner from his present assignment. A power was claimed for the controlling authority to terminate the appointment earlier than four years in public interest.

3. Soon after that this petition was instituted Mr. Abdul Qayyum Qureshi, filed an application, under Order 1, rule 10 for being impleaded as a respondent. The only ground disclosed was that the order of the controlling authority removing the petitioner from the post of Chairman which was impugned in the petition also appointed him as the succeeding Chairman. A decision to this effect had been taken though like the termina--tion of the appointment of Mr. Alaud Din Akhtar, it had not been notified. This application was allowed by me on 14-1-1976 subject to all just exceptions. The petitioner has seriously objected to the presence of Mr. Abdul Qayyum Qureshi on the ground that he is neither a necessary party nor a proper party to the proceedings. '' .

4. The case of the Government of the Punjab with respect/to the claim made by the petitioner is that undoubtedly a decision has been taken by the competent authority to terminate the tenure of the petitioner before the expiry of the period of four years, but the same has not been notified or communicated to the persons concerned nor has it been acted upon in any manner. The power to terminate this appointment of the petitioner is, however, claimed in view of condition No. 1, contained in the terms and conditions of appointment of the petitioner appearing in the document Annex. R/a dated 19-5-1975 and it reads as follows "The term of his office shall be for a period of four years were. f. 9-1-1975 subject to the condition that the controlling authority or the Government may terminate the deputation earlier in public interest."

It is stated by the respondent that the appointment having been expressed to be officiating on deputation and liable to termination before the expiry of the tenure in public interest, the power was possessed by the Government and could be exercised in a given situation against the petitioner. Before dealing with the case of Mr. Abdul Qayyurn Qureshi. I will deal with the power expressly claimed by the Government in the matter.

5. The statutory provision with regard to the terms and conditions on which the Chairman is to be appointed are to be found in section 14 of the Board of Intermediate and Secondary Education Lahore, Ordinance, 1961. The first three subsections of it read as follows "14.-(1) The Chairman shall be a whole time officer and shall be appointed by the Controlling Authority on such terms and conditions as may be determined by the Controlling Authority.

(2) The Chairman shall hold office for a term of four years from the date of notification of his appointment and on the expiry of the term of office shall be eligible for re-appointment.

(3) When the office of the Chairman is vacant temporarily or' otherwise by reason of leave, illness or other cause for a period not exceeding one year, the Controlling Authority shall make such arrangement for carrying on the duties of the office of the Chairman as it may think fit.

6. The case of the Government itself is that the appointment was under subsection (2) of section 14.

In case of a post having a statutory tenure the rule of interpretation as laid down in case Abdul Qayyum Qureshi v. Government of the Punjab (1975 SCMR 457) and 1976 SCMR 48 is that one has to look at the substance and not at the mere form of terminology used and the use of the word officiating does not have any effect on the true nature of appointment which was to be governed by 'section 14 of the Ordinance. The observation, with regard to the use of term officiating would also hold good for the use of expression "on deputation and liable to reversion" used in the. Terms and conditions banded down to the petitioner.

7. The principle of construction and validity of an enactment with regard to the statutory tenure has been dealt with in Corpus Juris Secundum. Vol. 46, p. 965 in the following words : "A statute creating an office and fixing its term will be so constructed as to render it consistent with the provisions, if any, of the constitution, where possible. In case the Legislature provides for a longer term than is permitted by the constitution, the act is ordinarily held to be valid as to the term permitted by the constitution, and void only as to the excess, although there is authority holding it void in toto, or that the office is held only during the pleasure of the appointing power. Where the term of an office is fixed by the constitution and the appointing power attempts to limit the term to a less time, the limitation will be disregarded as surplusage and an appointee's accept--ance under such an appointment will not estop him from claiming the entire term. If the language of a statute specifying the term of office of an official is ambiguous, the interpretation which limits the term to the shortest time will be adopted."

On pages 985 with regard to power of removal the following statement of law occurs: "The power of appointment generally carries with it, as an incident. The power to remove, but the power of removal may be impliedly or expressly restricted by constitutional provisions or statutes, and the general rule does not apply when a definite term .Is attached to an office by law, or where it is provided that the officer shall hold during good behavior."

8. It follows therefore that while a power to make an appointment carries, in this case as well, a power to remove in view of the tenure fixed by the Legislature under subsection (2) of section 14, such a power cannot be exercised by recourse to expressions "officiating", "deputation'", "reversion to, his parent department", which are in the context of this case are surplusage. Nor is the appointing authority free to assign residuary cause of public interest as an ordinary transfers and postings as a reason justifying interference with the tenure fixed by the statutes. Therefore, in view of the statutory tenure the Government cannot have recourse to the surplusage for interfering with the legislative will. The act, therefore, of terminating the petitioner's tenure by reference to the terms and conditions of his appointment being officiating on deputation or from a parent department or in public interest cannot held good.

9. As regards the claim of Mr. Abdul Qayyum Qureshi, two grounds have been advanced for treating him as a party and necessary for the proceedings. Firstly, it is contended that if the tenure fixed by statutes is given the regidity and the meaning which the petitioner seeks to give it then the applicant, Abdul Qayyum Qureshi, continues to be the Chairman, for the notification of the Government dated 1st February, 1973, mentions the extension of the period of Mr. Abdul Qayyum Qureshi, as Chairman Board of Intermediate and Secondary Education, Lahore, from 1st January, 1973, to the 9th January 1973, forenoon. On the interpretation of the Government himself the starting date i.e. 1st January, 1975, as the date from which extension of Mr. Abdul Qayyum Qureshi will start has to be accepted and the other date limiting that appointment to the 9th January, 1975, has to be treated as a surplusage and ignored. If this rule of inter--pretation as canvassed by the petitioner is adopted then the applicant Mr. Abdul Qayyum Qureshi would be holding this appointment de jure and he cannot be kept away from the proceedings.

10. This contention is wholly untenable because the post of Chairman fell vacant under the law itself on 1st January 1973, and what was done by the notification relied upon by the applicant was an appointment made under subsection (3) of section 14 and this is clear from the fact that it was an ex post facto regularisation of the period he continued to work on this post and it was a short period of 9 days, and it had to take place for causes which could fall in the category of other causes as provided for in sub. Section (3) of section 14, Besides this was a question which should have been agitated by him in his contentions litigation which was twice brought before the Supreme Court.

11. The second contention of the petitioner is that applicant is desig--nated Chairman and is to take over from the petitioner is removed. For support he has referred to the act of the petitioner himself when on the 2nd of January, 1976, in a meeting of the Board of Intermediate and Secondary Education he disclosed so and the Board resolved "to call on the controlling authority and they did call on the Education Minister to apprise him of their sentiments and also to inform him . Of the reported reappointment of Mr. Abdul Qayyum Qureshi".

12. As appointment can acquire` 'tangible form only when there is a post on which appointment can be made, when it is made and either com--municated or acted upon. In the case in hand on the finding that I have given that the tenure of the petitioner cannot be interrupted for any of the reasons disclosed by the respondent Government, there is no post on which appointment of Mr. Abdul Qayyum Qureshi could be made. Even if a decision has been taken by the controlling authority to that effect unless it sees the light of the day, is acted upon or communicated there is no right in the applicant to claim any such right on the basis of a decision which is still at the revokable and inchoate stage. On none of the grounds therefore the applicant is a necessary party or a proper party to these proceedings and on that score he, is to be kept out of the proceedings.

13. As Mr. Abdul Qayyum Qureshi took great pains and his learned counsel Mr. S. M. Zafar ably highlighted the legal aspects of the case at the hearing I would take note here of the purely legal submissions made on his behalf apart from those which have already been dealt with while dealing with the case of Government.

14. The first legal objection was that the order of appointment of the petitioner having itself not come from the Controlling Authority, it could neither be ratified in the order containing terms and conditions nor could it lend statutory colour to the office held by him. The Government or the Controlling Authority is not disowing the appointment order and it being a question of fact whether the Controlling Authority had made the appointment or someone else had done so the contention cannot proceed further at the instance of an outsider to the proceedings, All the concerned parties are treating the appointment to be legal and the Controlling Authority itself while determining the terms and conditions of the appointment of the petitioner treated it to be legal. Hence there is no occasion for going into this question of fact.

15. Secondly, it has been urged that what the law provides in section 14, subsection (2) is the maximum period of appointment and the Government in its discretion could fix a shorter period. I have already indicated the law stated in Corpus Juris that in the matter of public officer where legislative intent is manifest there is no question of the Government having such discretion in the matter. In the present case this factor is more forcefull brought out because the Legislature itself has provided for the situations where temporary arrangement can be made in all other cases normal tenure prevails. This matter has not been left to the fiat of the Government.

16. Thirdly, it has been urged that power to appoint includes the power to terminate and power to terminate can be exercised in public interest and public interest is not open to judicial scrutiny. This proposition of law correct only to this extent that power of appointment includes the power g to terminate appointment, but the power to terminate appointment is no restricted to the general public interest. It may take place for specified causes on which removal from public office can take place. They are like resignation, abandonment, forfeiture etc.

17. Fourthly, it has been urged that the fact that the petitioner was on deputation and accepted the conditions of his appointment being officiating and liable to reversion to his parent department, he should not be permitted to accept part of it and reject the other. He should either accept the whole o reject the whole. It has already been held by me that what is inconsistent with the statutory prescription has to be taken as a surplusage and what is not the surplusage can be allowed to stand for the benefit of the person without estopping him and as regards surplusage it can be ignored for all purposes. There is no element of estoppel in case of a public office and statutory tenure.

18. Fifthly, it has been urged that the appointment made was one under subsection (3) of section 14 and not subsection (2) of section 14. This is inconsistent with the plea taken by the Government and is also against the expressed words of the terms and conditions of appointment of the petitioner.

19. Finally it has been- urged by the applicant that order which is challenged by the petitioner being not on record, the declaration cannot be granted nor the order of prohibition can issue. It is not necessary to have an order or the record here for taking note of a decision of the Government to terminate the tenure in accordance with the terms and conditions of appointment. The Government having accepted it and having unconditionally expressed their intention to take such action, the necessary declaration can follow. The petition is, therefore, allowed with costs. The petitioner is declared to be the holder of post having statutory tenure of four years an that his tenure cannot be reduced by reference to such of the terms an conditions of his appointment as have been found inconsistent or a mere surplusage.