PROF. ABDUL QAYYUM QURESHI vs THE GOVERNMENT OF PUNJAB ETC.

ORDER

1. ' ANWARUL HAQ, J.-This petition seeks leave to appeal against the judgment of a Division Bench of the Lahore High Court dated 5-2-1975, whereby a Letters Patent Appeal filed by the petitioner to challenge the dismissal of his Constitution Petition by a learned Single Judge of that Court, was dismissed.

2. ' By a Notification dated the 12th of December 1970, issued by the Government of the Punjab in the Services and General Administration Department, the petitioner was appointed to officiate as Chairman of the Board of Intermediate and Secondary Education, Lahore, with immediate effect against the existing vacancy. He assumed charge of this appointment on 1-1-1971. As the terms and conditions of his appointment had not been included in this Notification, the petitioner, on the 22nd of January 1971, addressed a letter to the Governor of the Punjab, as Controlling Authority of the Board, under section 11 of the West Pakistan (Board of Intermediate and Secondary Education, Lahore) Ordinance 1961, suggesting certain terms and conditions for the approval of the Governor.

3. On the 16th of August 1971, the Government of the Punjab in the Education Department issued another Notification opening with the words :- "The Governor of the Punjab is pleased to allow the following terms and conditions of deputation to Mr. Abdul Qayyum Qureshi, Chairman, Board of Intermediate and Secondary Education, Lahore.

4. ' The second condition spelt out in this Notification was in the effect that :- "Tenure of his appointment is for a term of 4 years from the date of his taking over."

5. ' On the 10th of December 1974, the petitioner addressed a letter to the Minister for Education, Government of the Punjab, who was presumably at that time functioning as the Controlling Authority of the Board, drawing attention to the fact that he had been appointed Chairman of the Board for a term of 4 years which will expire on the 31st of December 1974. The petitioner requested that he may be re-appointed for a second term of office with effect from the 1st of January 1975.

6. This request was not accepted, and instead, by a letter dated the 3rd of January 1975, the petitioner was informed that the Controlling Authority had been pleased to order his reversion in the University of Agriculture, Lyallpur, with immediate effect.

7. ' Aggrieved by this order, the petitioner filed a Constitution petition in the Lahore High Court on 4-1- 1975, contending that his tenure of 4 years was to be counted from the 16th of August 1971, on which date he had been regularly appointed as the Chairman of the Board on specified terms and conditions. He submitted that his previous officiating appointment from 1-1-1971 could not be counted for the purpose of the statutory tenure mentioned in section 14 of the Ordinance. He also stated before the High Court that he had communicated to the Minister for Education, in continuation of his letter of the 10th of December 1974 that his officiating period was not to be counted towards the statutory tenure of his appointment.

8. ' The Constitution petition was dismissed by a learned Single Judge by his order dated the 9th of January 1975, observing that the petition was not competent, as the matter was one between master and servant, and, therefore, not proper to be dealt with in exercise of the writ jurisdiction of the High Court. The learned Judge further observed that in his view the subsequent Notification of the 16th of August 1971, only spelt out the terms and conditions of service, while the tenure of the post had already commenced when the petitioner took over as Chairman of the Board on 1-1-1971.

9. ' The learned Judges of the Letters Patent Bench have upheld the view taken by the learned Single Judge as to the commencement of the petitioner's tenure as Chairman of the Board, although they have observed that the appointment held by the petitioner being a statutory appointment under the relevant Ordinance, the matter was not governed by the ordinary law of master and servant.

10. On the dismissal of his Constitution petition, the petitioner has proceeded on leave for 4 months with effect from 9-1-1975.

11. ' Leave to appeal is sought by the petitioner on the ground that the learned Judges in the High Court have erred in thinking that his officiating appointment from 1-1-1971 to 15-8-1971 could be counted towards the completion of his tenure as prescribed in subsection (2) of section 14 of the Ordinance and Clause (2) of the Notification of the 16th August 1971. He submits that section 14 of the Ordinance contemplates two kind of appointment, namely, regular appointment of the Chairman under subsection (I) and a temporary appointment under subsection (3) when the office of the Chairman is vacant temporarily or otherwise for a period not exceeding one year, and that his officiating appointment, in the first instance, must be related to subsection (3) of section 14, and not to subsection (1) thereof. In support of his submission he has drawn our attention to the previous decisions of this Court to the effect that an officiating appointment does not give any vested right to the incumbent and he could be reverted at any time without a show-cause notice.

12. After bearing the petitioner at some length, we are of the view that the learned Judges in the High Court were right in thinking that the tenure of the petitioner's appointment, in terms of subsection

(2) of section 14 of Ordinance, had commenced from the date of his original appointment. It is true that in the Notification of the 12th December 1970, his appointment was shown as an officiating appointment and the terms and conditions of his service or deputation were not specified, but the use of a certain terminology, and the absence of the terms and conditions of service could not alter the nature of his appointment. In case of statutory appointments, one has to look at the substance and not at the mere form or terminology used, subsection (3) of section 14 contemplates an ad hoc appointment when the office of Chairman is vacant temporarily or otherwise for a period not exceeding one year. This was not the case when the petitioner was appointed under the Notification of the 12th of December 1970. The Notification itself states that the petitioner was being appointed against an existing vacancy, which means that it was a regular vacancy, and not a temporary vacancy, as envisaged by subsection (3) of section 14 of the Ordinance, Such being the case the initial appointment did not fall under subsection (3) of section 14 of the Ordinance, irrespective of the terminology used in the Notification.

13. ' That the intention had all along been to appoint the petitioner on a regular basis under subsection

(1) of section 14 of the Ordinance becomes clear when we refer to the subsequent Notification of the 16th of August 1971. It does not purport to appoint or re-appoint the petitioner as Chairman of the Board, but simply spells out the terms and conditions of deputation allowed to the petitioner by the Governor of the Punjab, as the Controlling Authority of the Board. It was stated before us by the petitioner that on the issuance of the second notification, he did not formally relinquish charge of his officiating appointment nor did he assume charge as a regular incumbent of the post of the Chairman of the Board. He simply continued, and drew the arrears of his salary from 1-1-1971 to 15- 8-1971 in terms of the second Notification. We have already stated that the petitioner had himself requested the Controlling Authority to specify the terms and conditions of his service which had not been done in the first Notification. Up to the 10th of December 1974, he had interpreted his own tenure of 4 years as commencing with effect from the date he first took over as Chairman on 1-1- 1971. Clause (2) of the Notification of the 16th? August 1971. Had also clearly stated that the term of 4 years was to be reckoned from the date of his taking over. - Until the end of his tenure he did not object to the wording of this clause. From all these facts and circumstances no doubt is left in our minds that right from the beginning, the petitioner had been appointed on a regular basis against the existing vacancy, and therefore, the statutory tenure of 4 years commenced from the date he started functioning as the Chairman of the Board.

14. For the foregoing reasons the petition fails and is hereby dismissed.