ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.D-1841 of 2009

Date Order with signature of Judge

Before: Mr. Justice Gulzar Ahmed

Mr. Justice Irfan Sadaat Khan

Date of hearing : 22.2.2010

Petitioner through : Ms. Hussain Buksh Advocate

Respondent through : Mr. Shafi Muhammad Memon, Addl: A.G. Sindh

GULZAR AHMED, J: In this petition the petitioner has sought restoration of notification dated 21.7.2007 purported to have been issued under section 17(1) of the Sindh Board of Technical Education Ordinance, 1970 by order of the Governor Sindh/Controlling Authority and that the petitioner be allowed to continue the residual period of his employment as Secretary, Sindh Board of Technical Education.

The Counsel for the petitioner has claimed that through notification dated 21.7.2007 the petitioner, who is a retired officer of Education Department, was appointed as Secretary Sindh Board of Technical Education on contract for a period of two years. He has claimed that through circular dated 07.5.2008 the contractual employment of the petitioner was terminated. He has contended that the termination of contract of employment of the petitioner is not legal and the petitioner is entitled to complete contractual employment.

The counsel for the petitioner was asked to read the provisions of section 17(1) of the Sindh Board of Technical Education Ordinance, 1970 to show that the Governor of Sindh was the controlling authority, the Counsel did not read such provision and was also not able to show that the Governor of Sindh was a controlling authority under the Sindh Board of Technical Education Ordinance, 1970.

We have examined the provision of the Sindh Board of Technical Education Ordinance, 1970. In the original Ordinance by section 10, the Secretary Education, Government of Sindh was made the controlling authority of the Board. Section 17(1) of the Ordinance provided that the Secretary and the Controller of Examinations shall be appointed by the Government and shall be whole time salaried officers. In terms of section 2(g) of the Ordinance, the Government was defined to be Government of Sindh. Section 10 as well as section 17(1) of the original Ordinance were amended by Sindh Board of Technical Education (Amendment) Act, 1974 (Act-II of 1974). In section 10 in place of word "Secretary" the word "Minister" was substituted and in section 17(1) in place of "Government" words "Controlling Authority" was substituted. As per amended provision the controlling authority in terms of section 10 of the Ordinance is the Education Minster, Government of Sindh and in terms of section 17(1) the power to make appointments of Secretary and the Controller of Examinations has been substituted from Government to the controlling authority i.e. the Education Minister, Government of Sindh.

The position that emerges from the above provision of law which seems to be subsisting is that the controlling authority prescribed by the Ordinance is the Education Minister, Government of Sindh and he is the only competent authority to make appointment of a Secretary of the Board. The notification relied by the petitioner shows that it has been issued by order of the Governor of Sindh/controlling authority. The Counsel for the petitioner has not been able to show that Governor of Sindh has been made the controlling authority under the Ordinance. The net result of it, is that the very notification dated 21.7.2007 seems to be contrary to law upon which no claim can justifiably be made by the petitioner. If any appointment of the petitioner was made by the purported notification, such was illegal and did not entitle him to any benefits, yet it may also be said that the notification itself may be a fictitious one.

Through a short order dated 02.2.2008 we have dismissed this petition in limine. Above are the reasons for the same.

The listed applications are also disposed of.

Let a copy of this order be sent to the Chief Secretary, Government of Sindh with the copy of petition and its annexures to conduct inquiry in the matter and to take action against the person who may be responsible in issuing of fictitious notification and subsequent documents. The action is inclusive of taking departmental proceeding so also referring the matter to Anti Corruption Authorities and lodging of criminal complaint.

A report in this respect be submitted to the MIT of this Court within a period of six weeks.

J U D G E