Tenure Post
Tenure Post legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Petitioner was Municipal Officer and was transferred by Election Commission from his place of appointment to another place
Validity
Petitioner did not claim any vested right against any particular post but only wanted implementation of security of tenure provided under section 186 of Punjab Local Government Act, 2022
High Court set aside notification of transfer of petitioner as there was a ban imposed by the Election Commission
Constitutional petition was allowed accordingly.
Petitioner was appointed as Ombudsperson for four years but she was removed from service by Election Commission, before completion of her tenure
Validity
In absence of statutorily prescribed procedure for removal of Ombudsperson, particularly when the appointment was for a fixed term, the incumbent could not be removed from office prior to the expiration of that term, save for the universally recognized grounds of proven misconduct or incapacity, which would necessitate a due process even if not explicitly detailed within Protection against Harassment of Women at the Workplace Act, 2010
Removal of Ombudsperson was not provided under Protection against Harassment of Women at the Workplace Act, 2010, except in the case of resignation
Even if removal became necessary on grounds of proven misconduct or incapacitation, the power to take such action was logically lie with the appointing authority, i.e., the Government, following due process
Election Commission was nowhere authorized in such regard under the Protection against Harassment of Women at the Workplace Act, 2010
Primary purposes of Election Commission, as delineated in the Constitution and the Elections Act, 2017, revolves around the conduct of free and fair elections
Achieving such purposes inherently, Election Commission was not empowered to direct permanent removal of any office bearer
Nature of removal contemplated in the notification of Election Commission, the "immediate termination of services" - implied a permanent cessation of employment, which did not directly relate to the Election Commission's core function of ensuring fair elections
At the most, Election Commission's powers in relation to public officials during election period, as indicated by R. 170(1) of Election Rules, 2017, and S. 230(2)(f) of Elections Act, 2017, (regarding the Caretaker Government's limitations), extended to transfer or shuffling of public officials with the Commission's approval
Such had suggested a focus on preventing misuse of official positions to influence elections, rather than permanent removal of appointees, particularly those with a statutorily defined tenure
De-notification of petitioner by Caretaker Government of Punjab by way of notification in question was not within its lawful authority
High Court set aside notification in question issued by Government of the Punjab de-notifying services of petitioner as Ombudsperson Protection against Harassment of Women at Workplace
High Court declared notification in question to be null and void and petitioner was deemed to be in office as if the notification had not been issued
High Court directed that to ensure that future appointments to the position of Ombudsperson were beyond reproach, it would be apt to direct that the relevant authorities should, with due expediency, formulate and implement a comprehensive, transparent and merit-based appointment procedure
Constitutional petition was allowed, in circumstances.
If incumbent knows he/she can be removed at any time without stated cause or due process, his/her ability to act fearlessly and independently, especially when dealing with potentially sensitive matters involving Government or influential individuals, can be curtailed
Security of tenure, within reasonable limits, is often considered essential for the effective functioning of such roles.
Petitioner was appointed as Ombudsperson for four years but she was removed from service by Election Commission, before completion of her tenure
Validity
In absence of statutorily prescribed procedure for removal of Ombudsperson, particularly when the appointment was for a fixed term, the incumbent could not be removed from office prior to the expiration of that term, save for the universally recognized grounds of proven misconduct or incapacity, which would necessitate a due process even if not explicitly detailed within Protection against Harassment of Women at the Workplace Act, 2010
Removal of Ombudsperson was not provided under Protection against Harassment of Women at the Workplace Act, 2010, except in the case of resignation
Even if removal became necessary on grounds of proven misconduct or incapacitation, the power to take such action was logically lie with the appointing authority, i.e., the Government, following due process
Election Commission was nowhere authorized in such regard under the Protection against Harassment of Women at the Workplace Act, 2010
Primary purposes of Election Commission, as delineated in the Constitution and the Elections Act, 2017, revolves around the conduct of free and fair elections
Achieving such purposes inherently, Election Commission was not empowered to direct permanent removal of any office bearer
Nature of removal contemplated in the notification of Election Commission, the "immediate termination of services" - implied a permanent cessation of employment, which did not directly relate to the Election Commission's core function of ensuring fair elections
At the most, Election Commission's powers in relation to public officials during election period, as indicated by R. 170(1) of Election Rules, 2017, and S. 230(2)(f) of Elections Act, 2017, (regarding the Caretaker Government's limitations), extended to transfer or shuffling of public officials with the Commission's approval
Such had suggested a focus on preventing misuse of official positions to influence elections, rather than permanent removal of appointees, particularly those with a statutorily defined tenure
De-notification of petitioner by Caretaker Government of Punjab by way of notification in question was not within its lawful authority
High Court set aside notification in question issued by Government of the Punjab de-notifying services of petitioner as Ombudsperson Protection against Harassment of Women at Workplace
High Court declared notification in question to be null and void and petitioner was deemed to be in office as if the notification had not been issued
High Court directed that to ensure that future appointments to the position of Ombudsperson were beyond reproach, it would be apt to direct that the relevant authorities should, with due expediency, formulate and implement a comprehensive, transparent and merit-based appointment procedure
Constitutional petition was allowed, in circumstances.
Civil servant could not insist under S. 10 of Sindh Civil Servants Act, 1973, to be posted or transferred to a particular post
Civil servant could not be humiliated by replacing him through officer junior to him
Minimum period during which a civil servant must serve at his post was not prescribed under S.10 of Sindh Civil Servants Act, 1973
Government without assigning any reason could not move a civil servant from the place he was posted to after a month or subject the civil servant to repeated postings in a short period because such would amount to punishing him
Such postings also adversely affected public interest and could result in wastage of rare resources and constitute bad governance
Rules and regulations of Karachi Development Authority (KDA) designated certain posts as 'tenure posts' and prescribed certain tenure for an incumbent to serve on such posts
Prescribed tenure could be categorized as ideal duration for which a civil servant should serve at a particular post
Post of Director General KDA though was not a tenure post in its terms, however, principle of serving for a particular duration at post in question should be followed
Petitioner was posted for a little over a month when he was again posted
Any civil servant posted to a particular post required some time to familiarize himself with workings of office and requirements of post whereafter he would be best placed to acquit himself of responsibilities of the post
One month posting of petitioner could not serve interest of public at large
Matter was not maintainable under Constitutional command as provided under Art. 212(2) of the Constitution
Constitutional petition was dismissed accordingly.
Without having given an opportunity to petitioner to rebut or give an explanation with respect to allegations against him in performance assessment, such allegations could not be treated as substantiated and could not form basis for a decision to terminate his appointment
It could only be in an inquiry under S.15(7) of Pakistan Medical Commission Act, 2020, that it would be determined whether allegations made against petitioner in performance assessment, if substantiated, would amount to misconduct or result in a finding that he was unable to perform his functions so as to furnish a just cause to remove him from office of Member (Examinations), National Medical Authority
Any other mode or manner of removal of a Member of National Medical Authority from his office was not contemplated by provisions of Pakistan Medical Commission Act, 2020
Requirement to hold inquiry under S.15(7) of Pakistan Medical Commission Act, 2020, could not have been lightly dispensed with on the ipse dixit of those in Pakistan Medical Commission who decided to terminate petitioner's appointment on the basis of his performance assessment
High Court directed the petitioner to resume his duties and set aside letter terminating his appointment, as he was appointed for a fixed term of four years under S.15(2) of Pakistan Medical Commission Act, 2020
Constitutional petition was allowed, in circumstances.
By making appointment of a Member of National Medical Authority, for a fixed term of four years, under S.15(2) of Pakistan Medical Commission Act, 2020, affords protection and security of tenure to such Member
Statutory protection cannot be whisked away by a condition in letter of appointment
Such condition in appointment letter cannot override or circumvent statutory protection afforded to petitioner by S.15(2) of Pakistan Medical Commission Ac, 2020
Parties cannot contract out of beneficial provisions in a statute.
Once a person is appointed to a tenure post, his appointment to that office begins when he joins and it comes to an end on completion of the tenure but no right is conferred to hold the post for entire period
Tenure can be curtailed on attaining age of superannuation by incumbent of the post.
Tenure Post -Incumbent entitled to hold for full length of period declared for such post-Fundamental Rules, r. 9 (30-A).
"Tenure Post", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/22070
Precedents & Case Laws citing "Tenure Post"
2013 P L C (C
Mrs. JAMSHED NAQVI Versus AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 5 others
Court: High Court (AJ&K)P L D 1959 Supreme Court (Pak
PAKISTAN (through the Secretary Cabinet Secretariat, Karachi)‑Appellant Versus (1) MOAZZAM HUSSAIN KHAN (2) Mian ANWAR ALI, Director of Intelligence Bureau, Karachi‑Respondents
Court: The respondent was member of the Police Service of Pakistan which is one of the services included in the Schedule Sched. I to Civil Services (Classification, Control and Appeal) Rules, but the post of the Director of Intelligence Bureau is not borne on the cadre of posts for that service. Therefore it follows that since the respondent was not reduced from a higher post in the police department to a lower post in the same department or from a higher scale to a lower scale or from a higher stage to a lower stage in that department, his reversion to the province did not amount to reduction in rank. He was on deputation with the Central Government for a period defined only in term, of a maximum duration and his position in the service to which he belongs was not adversely affected by the reversion.P L D 1958 (W
MOAZZAM HUSAIN KHAN‑Petitioner Versus (1) GOVERNMENT OF PAKISTAN and
Court:P L D 1959 Supreme Court (Pak
PAKISTAN‑Appellant Versus FAZAL RAHMAN KHUNDKAR and another‑Respondents
Court:2023 P L C (C
ASIF ALI MEMON Versus PROVINCE OF SINDH through Chief Secretary Government of Sindh and another
Court: Sindh High Court2013 P L C (C
Raja MUHAMMAD NASIR KHAN Versus ACTING VICE-CHANCELLOR and others
Court: Lahore1992 P L C (C
Prof. M.A. SAEED Versus SECRETARY EDUCATION DEPARTMENT and others
Court: Lahore High CourtP L D 1979 Lahore 324
PUNJAB TEXTBOOK BOARD-Petitioner Versus GOVERNMENT OF THE PUNJAB THROUGH THE CHNF
Court: -- S. 4(2)-Chairman of Textbook Board holds statutory post for fixed period of 3 years-Leave of absence from such tenure post Does not, in ordinary course, interrupt duration of tenure or cause a vacancy-Order transferring or repatriating incumbent of such post before expiry of tenure-Held, to be without lawful authority and of no legal effect.-Civil service.1997 P L C (C
Col. (Retd.) MASOOD‑UL‑HASSAN, MANAGING DIRECTOR, (DE JURE) SMALL INDUSTRIES CORPORATION, MUZAFFARABAD Versus AZAD GOVERNMENT OF THE STATE OF J&K through its Chief Secretary, Muzaffarabad and 2 others
Court: Azad J&K High Court2020 P L C (C
VADIYYA S. KHALIL and others Versus FEDERATION OF PAKISTAN through Secretary, Cabinet Division and others
Court: Islamabad High Court