Prof. Dr. GHULAM MUHAMMAD MALIK, CHAIRMAN B.I.S.E., BAHAWALPUR vs CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB and 3 others
The petitioner, a civil servant serving on deputation as Chairman of the Board of Intermediate and Secondary Education, challenged a notification relieving him of his duties and directing him to report to the Education Department. The core legal question was whether the petitioner, holding a tenure post, could be repatriated or removed without a show-cause notice or hearing, particularly when the government alleged he did not meet performance expectations. The Court held that while the post of Chairman is held during the pleasure of the Controlling Authority, the government's admission that the transfer was based on the petitioner failing to meet expectations transformed the repatriation into a punitive measure. Consequently, the Court ruled that the impugned notification was arbitrary and mala fide because it punished the petitioner without providing a show-cause notice or an opportunity for a hearing. The principle laid down is that where a transfer or repatriation is punitive in nature, even if the post is held at the pleasure of the authority, the principles of natural justice, including the right to a hearing, must be strictly observed.
- Does the repatriation of a civil servant on deputation, based on alleged poor performance, constitute a punitive action requiring a show-cause notice?
- Can a tenure post held at the pleasure of the Controlling Authority be terminated without adherence to the principles of natural justice?
- Does the High Court have jurisdiction to interfere in a repatriation order if the order is tainted by mala fide?
- Article 27, Constitution of Islamic Republic of Pakistan 1973
- Article 212, Constitution of Islamic Republic of Pakistan 1973
- Section 14(2), Board of Intermediate and Secondary Education Act 1976
' The petitioner seeks declaration to the effect that Notification No, EI/(S&GAD)PF-2-77/97, dated 13- 12-1997 passed by respondent No, 1 for relieving the petitioner from the post of the Chairman, Board of Intermediate and Secondary Education to be illegal, void ab initio arbitrary, mala fide, without jurisdiction, without lawful authority and of no legal effect and for withdrawal/cancellation of the impugned notification and also for grant of ad interim injunction by suspending the operation of impugned Notification.
2. The case of the petitioner is that he is M.Sc. First Class First (Gold Medallist) and also Ph.D. And was posted as Director of Education, Multan Division, Multan. He was awarded BS-20 on 7-3-1991 as such, he has a blotless service record at his credit in the Education Department, that the petitioner was placed on deputation and posted as Chairman, Board of Intermediate and Secondary Education, Gujranwala Division and he took over charge of the said post on 5-12-1996 but all of a sudden he was transferred and posted as Chairman, Board of Intermediate and Secondary Education, Bahawalpur Division, Bahawalpur vide Notification No,EI-I10/96, dated 11-1-1997 after only one month and six days that the petitioner was directed by respondent No, 1 to report to the Education Department vide impugned notification and that the impugned notification is illegal, void ab initio, without jurisdiction, without lawful authority and of no legal effect and also hit by Article 27 of the Constitution of Islamic Republic of Pakistan, 1973.
3. Notice was given to the respondents to file parawise comments which they have filed and have taken the preliminary objection that the jurisdiction of this Court is barred under Article 212 of the Constitution and that the petitioner was transferred from Gujranwala to Bahawalpur Board on his own request. It was a mutual transfer between Mr. Bashir Ahmad Naseer, the then Chairman of Bahawalpur Board and the present petition. Both the officers forwarded a written request to Government for their mutual transfer to which they were obliged. According to the terms and conditions the post of Chairman is although a tenure post but can be vacated at any time according to the pleasure of the Government/Controlling Authority. The officer did not come up to the expectations of his appointment and was, therefore, transferred. A similar writ petition filed by Dr. Abdul Rehman, Ex-Chairman, Punjab Textbook Board, Lahore has been dismissed by this Court on 12-12-1997 where the petitioner had taken the similar plea and it was decided that although post of Chairman is a tenure post but with certain conditions and pleasure of the Government/Controlling Authority is one of them. Therefore, the Notification dated 13-12-1997 is legal with justification and within the jurisdiction of the Government, thus holds a lawful authority.
The petitioner has been directed to report to the Education Department and he is free to exercise his lawful right and request the Department against his posting and the three years statutory tenure is subject to the pleasure of the Government/Controlling Authority.
4. Arguments have been heard. Admittedly, the petitioner is a civil servant and he was on deputation to the Board of Intermediate and Secondary Education. The contention of the learned counsel for the petitioner that despite non-mention of period of deputation under Rule 14 of the Board of Intermediate and Secondary Education, 1976 the post being tenure post he is to serve for three years is not legally correct because subsection (2) of section 14 was amended on 17-5-1992 to the effect that the Officers of the Board shall hold office during the pleasure of the Controlling Authority. There is no cavil about the proposition that the transfer of an employee on deputation, by no stretch can constitute period of punishment and there is also no cavil about the proposition that the transfer should be in accordance with law and rules applicable to the petitioner and should be without any taint of mala fide. It is also clear that the impugned order is neither an order of removal, nor suspension, nor promotion, nor of inquiry and it is only a question of repatriation which is to be governed according to law for which no appeal is provided. Para. 6(b) of the parawise comments submitted by respondents Nos. 1, 2 and 3 clearly admit that the petitioner did not come up to the expectations of his appointment and was, therefore, transferred. It means he has been punished by way of repatriation without giving him a hearing by way of issuing a show- cause notice and charge-sheet etc. Which shows mala fide. In such cases, this Court has got jurisdiction to interfere, as such, the petition is allowed and the impugned Notification is set aside with the direction to the respondents Nos. 1 to 3 to proceed strictly in accordance with the law and the rules and provide full opportunity of hearing to the petitioner. The impugned Notification dated 13-12-1997 is hereby declared illegal, void abs initio, arbitrary, mala fide and without lawful authority and of no legal effect.