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Petitioner: ZIA GHAFOOR PARACHA VS Respondent: THE CHAIRMAN BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, RAWALPINDI
2002 P L C (C
2002 P L C (C.S.) 1571
[Lahore High Court]
Before Muhammad Sayeed Akhtar, J
ZIA GHAFOOR PARACHA
Versus
THE CHAIRMAN BOARD OF INTERMEDIATE AND
SECONDARY EDUCATION, RAWALPINDI and others
Writ Petitions Nos.535, 451 of 1995, 105 of 1996, 1922, 1952, 2484 and Crl. Org. No. 126 of 1999, decided on 10th June, 2002.
(a) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)‑‑--
‑‑‑‑Ss.11, 12(1‑A), 12(8)(iii), (iv), 15(6), 20, 21 & 22‑‑‑Service Regulations of Employees of Board of Intermediate and Secondary Education Rawalpindi, Regln.8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional petition‑‑‑Dismissal from service‑‑‑Petitioner who was dismissed from service, had challenged dismissal order in Constitutional petition contending that Chairman of Board had no authority/jurisdiction to initiate disciplinary proceedings against him as Government as Controlling Authority, could only take said action‑‑‑Contention of petitioner was repelled because provisions of S.12(1‑A) of Punjab Board of Intermediate and Secondary Education Act, 1976 did not reveal that Controlling Authority was sole authority to suspend an employee of Board‑‑‑Controlling Authority could make Regulations concerning efficiency and discipline of officers and other employees of Board‑‑‑Under S.12(8)(iii) ‑ of Punjab Board of Intermediate and Secondary Education, Act, 1976‑‑‑Board empowered under S.20 of Punjab Board of Intermediate and Secondary Education Act, 1976 to frame Regulation subject to approval of Government, framed Regulations, but nothing was on record to show that Government/Controlling Authority had ever accorded its approval to such Regulations‑‑‑Said Regulations, in absence of any approval, were moribund in eye of law and could not empower Chairman of Board to remove employees of Board‑‑‑Petitioner was issued show‑cause notice against charges of misconduct, fraud and forgery by manoeuvring to mark attendance in Attendance Register and showing indiscipline and disobedience to superiors before he was dismissed from service‑‑‑Petitioner was also provided an opportunity of hearing, but he failed to appear and was dismissed from service‑‑‑Other petitioner who remained absent from duty and had shown indiscipline and irresponsible behaviour towards his superiors, was also, provided opportunity of personal hearing‑‑‑Defence of said employee was taken into consideration, but it did not find favour with the Authorities and he was removed from service‑‑ Regulations concerning Efficiency and Discipline of Employees of Board though had not been framed by Government, but mere inaction on part of Government to frame Regulations, coupled with lack of approval by Government to Service Regulations framed by Board under S.20(1)(iii) of Punjab Board of Intermediate and Secondary Education, Act, 1976, could not be taken as a prohibition from taking any disciplinary action against employees‑‑‑In absence of said Regulations, master and servant rule would apply to the case of employees‑‑‑Constitutional petitions filed by employees were not maintainable in circumstances.
1999 SCMR 138; PLD 2001 Lah. 395: PLD 1996 Lah. 672; PLJ 2000 Lah. 1202 2002 SCMR 549; 1993 PLC (C.S.) 1364: 1999 PLC (C.S) 409: Muhammad Anwar Hussain v. Chairman Board of Intermediate and Secondary, Education, Gujranwala and others 2000 PLC (C.S.) 678; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170 and Karachi Development Authority and another v. Walt Ahmed Khan and others 1991 SCMR 2434 ref.
(b) Interpretation of statutes‑‑‑
‑‑‑‑Legislation‑‑‑Powers intended by Legislature to be a regulatory power, could not be converted by mere inaction to frame bye‑laws into a power of prohibition.
Kohinoor Chemical Co. Ltd. v. Karachi Municipal Corporation PLD 1978 Kar. 872 and M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228 ref.
Amjad Hamid Ghauri and Shahid Mahmood Mughal for Petitioner.
Hafiz S. A. Rehman and Bashir Ahmed Ansari for Respondents.
Syed Sajjad Hussain Shah, A.A.‑G. with Khalid Sidhu, S.O. Litigation) and Mamoon Abbas Khan, Ex‑Chairman BISE. Rawalpindi.
Date of hearing: 24th May, 2002.
JUDGMENT
This judgment will dispose of the following writ petitions as a common question of law and facts is involved in them:‑‑
(i) Writ Petition No.535 of 1991, (ii) Writ Petition No.451 of 1995, (iii) Writ Petition N6.105 of 1996, (iv) Writ Petition
No. 1922 of 1999, (v) Writ Petition No. 1952 of 1999 and (vi) Writ Petition No.2484 of 1999,
2. Succinctly stated Zia Ghafoor Paracha is the petitioner in all the above said writ petitions except Writ Petition No.2484 of 1999 in which Arif Zia is the petitioner. Both were Juninor Clerks in the Board of Intermediate and Secondary Education, Rawalpindi. Zia Ghafoor Paracha petitioner has been dismissed from service and Arif Zia petitioner has been removed from service details of the writ petitions are given as under‑‑
Writ Petition No.535 of 1991.
Zia Ghafoor Paracha has assailed the suspension order dated 1‑10‑1989.
Writ Petition No. 451 of 1995
In this petition stopping of the annual increment and suspension of honorarium has been challenged.
Writ Petition No. 105 of 1996
In this petition show‑cause notice dated 24‑12‑1995 issued under the Efficiency and Disciplinary Rules, 1975 has been impugned.
Writ Petition No. 1922 of 1999
The dismissal order dated 27‑8‑1999 has been challenged. The impugned order was suspended by this Court on 9‑9‑1999.
Writ Petition No. 1952 of 1999
Since the order, dated 27‑8‑1999 was suspended by this Court, another dismissal order dated 4‑9‑1999 was passed against the petitioner Zia Ghafoor Paracha and the same has been assailed in this petition.
Crl. Org. No.126 of 1999
This contempt application has been filed against Chairman of the Board committing violation of the order of this Court.
Writ Petition No.2484 of 1999
Petitioner Arif Zia was removed from service vide order dated and the same has been impugned in this petition.
3. The learned counsel for the petitioner Zia Ghafoor Paracha respondent Chairman of the Board of Intermediate and Rawalpindi had no authority whatsoever to issue any suspend or dismiss the petitioner. The impugned orders of the Parent Act. Regulation No.8 of the Service Employees of the Board of Intermediate and Secondary Education, Rawalpindi is ultra vires the Act. Thrust of the argument of learned counsel for the petitioner is that under section 11 of the Punjab Board of Intermediate and Secondary Education Act, 1976, the Government is the Controlling Authority of the Board. Under section 12(1‑A) of the same Act, only the Controlling, Authority cart suspend an employee of‑the Board. Section 20 of the said Act enjoins that the Board may, subject to the approval of the Government frame Regulations, not in consistent with the provisions of Act. The learned counsel urged that the dismissal orders have been passed without hearing the petitioner, as such, are unsustainable in law. Lastly the learned counsel argued that since the impugned orders were without jurisdiction, the Constitutional petitions were maintainable in the circumstances of the case. Reliance was placed on "1999 SCMR 138", PLD 2001 Lah. 395", "PLD 1996 Lab. 672" and "2000 CLC 1485".
4. Conversely the learned counsel for the respondent‑Board submitted that Regulations of Service framed by the Board are not statutory. The relationship of master and servant exists between the parties. Alternative remedy of appeal before the Board is available to the petitioners. Learned counsel argued that where the disciplinary proceedings have not been taken to the logical ends, the Constitutional petition was not maintainable. It was urged that under section 12(1‑A) of the said Act, the power with the Controlling Authority is in addition to the power delegated to the Chairman. The powers of Chairman have not been curtailed by this provision. The Punjab Civil Servants (Efficiency & Discipline) Rules have been adopted for the employees of the Board. Reliance was placed on, "2002 SCMR 549", "1993 PLC (C, S.) 1364". and "1999 PLC (C. S.) 409".
5. The Punjab Boards of Intermediate and Secondary Education Act XIII of 1976 came into force on July 21, 1976. It was amended by Punjab Board of Intermediate and Secondary Education (Amendment) Ordinance XX of 1984. It was further amended by Punjab Boards of Intermediate and Secondary Education (Amendment) Ordinance XXIII of 1985. By this. Ordinance of 1985, drastic amendments were made in the Act XIII of 1976. During the arguments, the learned counsel for the respondent‑Board was asked whether the Service Regulations framed by the Board were accorded approval by the Controlling Authority? A letter dated 12‑12‑1977 issued by the Section Officer (S&B), Government of Punjab, Education Department has been placed on record. The learned Assistant Advocate‑General was asked to produce the original record granting approval to the Service Regulations by the Government of Punjab. Khalid Mehmood the Deputy. Secretary (Academic) Education Department, Government of Punjab, appeared and sought time to produce the record. However, on the next date of hearing letter dated 4‑4‑1985 written to the Chairman, Board of Intermediate and Secondary Education, Multan has been placed on record which will be discussed in the latter part of the judgment.
6. The pivotal point in the present Constitutional petitions is whether the Chairman of the Board had the authority/jurisdiction to draw, disciplinary proceedings against the petitioners.
The contention of the learned counsel for the petitioners that the Controlling Authority is the only authority under section 12(1‑A) to suspend an employee of the Board is devoid of any force. Section 12(1‑A) is reproduced as under:‑‑
"The Controlling Authority may at any time suspended a member any officer or an employee of the Board. "
The provision does not reveal that the Controlling Authority is the sole authority to suspend and employee of the Board. Under section 12(8)(iii), "The Controlling Authority may make regulations concerning efficiency and discipline of officers and other employees of the Board". Similarly under section 12(8)(iv), "The Controlling Authority may remove from service any employee of a Board; provided that no such employee shall be removed from service without being given an opportunity of being heard; provided further that where the Controlling Authority has initiated any such proceedings against any such employee, no other person including the Board shall have power to initiate any proceedings or take any steps in the matter." This leaves not a scintilla of doubt that in addition to the Board or some other person if so authorised, the Controlling Authority has also the power to initiate any such proceedings against an employee of the Board. The only limitation on the power of Board or other person is that they shall not initiate disciplinary proceedings if the same have been initiated by the Controlling Authority. Under section 15(6) of the said Act, the Chairman shall exercise such other power as may be prescribed by Regulations. Section. 20 empowers the Board to frame Regulations subject to the approval of Government. It reads as under:‑‑
"20(1). A Board may, subject to the approval of the Government frame regulations, not inconsistent with the provision of this Act, to carry out the purposes of this Act provided that:‑‑
(i) a Board shall not propose draft of regulations of ,effecting the constitution or power of any authority of the Board until such authority has been given an opportunity of expressing an opinion in writing upon the proposals;
(ii) the draft of regulations shall be forwarded to the Controlling Authority and shall not be effective until it has been approved by the Controlling Authority; and
(iii) A Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of he offices/officials and other employees which is not in conformity with rules made by the Government."
Section 20(2), of the aforementioned Act reads as under:‑‑
"In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for:
(a) the terms and conditions of service of the employees of a Board including matters relating to grant of leave to, and retirement of such employee;".
7. The reading of the above said provisions of the Act would reveal that under section 12(8)(iii), the Controlling Authority may make regulations concerning the efficiency and discipline of the officers and other employees of the Board and under sub‑clause (8)(iv), the Controlling Authority may also remove an employee. from service. Under section 20(1), a Board may, subject to the approval of the Government frame regulations, not inconsistent with the provisions of this Act and under sub‑clause (1)(iii), a Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials and other employee which is not in conformity with rules made by the Government.
8. The Service Regulations of the employees of the Board of the Intermediate and Secondary Education Rawalpindi begin with:‑‑
"These Regulations may be called the Board of Intermediate and Secondary Education Rawalpindi Employees Service Regulations and will be deemed to have taken effect from the date of approval of the Controlling Authority."
There is nothing on record to show that the Controlling Authority ever accorded its approval. In the absence of any approval by he Controlling Authority, the Regulation are moribund in the eye of law, and cannot t empower the Chairman of the Board to appoint, suspend or remove the employees of the Board. The Board in its first meeting held on 15‑11‑1977 resolved as under:‑‑
"The Board resolved to approve the following recommendations of the office, till such time as the rules and regulations are framed by the Rawalpindi Board:‑‑
(1) The rules of the Sargodha Board as on 20th October, 1977 excluding those not consistent with the Punjab Board of Intermediate and Secondary Education Act, 1976, may be adopted by the Rawalpindi Board as its own rules.
(2) It may be recommended to the Controlling Authority that regulations of the Sargodha Board as on 20th October, 1977 may be adopted by the Rawalpindi Board as its own regulations:
(3) ..................
(4) . ..................
(5) ..................
(6) The Controlling Authority may be requested to make regulations concerning efficiency and discipline of officer and other employees of the Board as provided in clause (12)(8)(iii) and clause (20)(1)(ii) and the Punjab Boards of Intermediate and Secondary Education Act, 1976.
The Board had made certain recommendations as stop gap arrangement till the regulations concerning the Efficiency and Disciplinary were framed by the Controlling Authority. The then Chairman of the Board wrote a letter dated 20‑11‑1977 to the Deputy Secretary (Academics), Government of the Punjab, Education Department, Lahore which is reproduced for convenience sake:‑‑
"Subject: RULES AND REGULATIONS OF THE BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, RAWALPINDI, INCONSISTENT WITH THE PUNJAB BOARDS OF INTERMEDIATE AND SECONDARY EDUCATION ACT. 1976.
Under clause (21) of the Punjab Boards of Intermediate anti Secondary Education Act, 1976, a Board is competent to make rules consistent with this Act and the regulations. As the Rawalpindi Board is a newly‑established Board and it has yet a very small establishment, the Board in its first meeting held on 15th November, 1977 has, to start with, decided that the rule of the Sargodha Board as on 20th October, 1977 excluding these not inconsistent with the aforesaid Act may be adopted for the Rawalpindi Board as its own rules.
(2) Under clause (20) of the aforesaid Act, a Board may, subject to the approval .of the Government, frame regulations, not inconsistent with the provisions of the Act to carry out the purposes of the Act. The Rawalpindi Board has, therefore, resolved to recommend that the regulations of Sargodha Board as on 20th October, 1977 already approved by the Government excluding these not inconsistent with the aforesaid Act may be approved for adoption by Rawalpindi Board as its own regulations; You are, therefore, requested to get approval of the Government to this effect and convey to the undersigned as early as possible.
(3) Under clause (20)(1)(iii) of the Act under reference, a Board has no power to make any regulation concerning efficiency and discipline of the officers and other employees and in clause (12)(8)(iii) it has been provided that the Controlling Authority may make such regulations. The Rawalpindi Board, in its meeting held on 15th November, 1977 has further resolved to make a request for framing regulations concerning efficiency and discipline of officers and employees of the Board.
(4) It may be pointed out that the Board has authorized the Chairman to assign the duty of framing draft rules to one of the offices of the Board after receiving a reasonable consignment of officers for approval of the Board. With a view to have uniformity, a request is being made to the Committee of Chairman of Punjab Boards to make arrangements for drafting regulations for all the six Boards for submission to the Government for approval."
In para. 2 of this letter the approval of he Government for adoption of Regulations, framed by Sargodha Board, was solicited. In para. 3 the request for framing Regulations concerning Efficiency and Discipline was made.
In response to this letter, Muhammad Rashid, Section Officer (S&B) vide Letter No.SO(S&B) 1‑2777, Government of the Punjab, Education Department dated Lahore, the 12th December, 1977, replied as under:‑‑
"Proposal contained in paras. 2 to 4 of your letter under reference were considered appropriate. You are, therefore, allowed to proceed accordingly."
This letter does not show that the Controlling Authority accorded its approval. It was issued by the Section Officer and was only a permission to proceed and that too not by the competent Authority. The original record was summoned and the same has not been produced before me showing the approval of the Controlling Authority.
9. Another letter, dated 9‑3‑1980 issued by the Section Officer (S&B) which reads as under:‑‑
"The Controlling Authority of the Board of Intermediate and Secondary Education, Rawalpindi has been pleased to accord approval to the adoption of Government Efficiency and Discipline Rules for the employees of the Board of Intermediate and Secondary Education, Rawalpindi with immediate effect till further orders."
10. Sections 20 and 21 of Act, 1976 when read together clearly show that regulations are to be framed by the Board with the prior approval of the Government. The draft regulation affecting the constitution or power of any authority of the Board shall not be proposed until that authority has been given an opportunity of expressing its opinion. The dreft shall not be effective until it has been approved by the Controlling Authority and the Board is not empowered to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officer/officials which is not in conformity with the rules made by the Government on the subject.
The effect of adoption of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 and the framing of Regulation and Rules under sections 20 and 21 of the Act XIII of 1976 came under consideration before a Division Bench of this Court in the case of "Muhammad Anwar Hussain v. Chairman, Board of Intermediate and Secondary Education, Gujranwala and others" (2000 PLC (C.S.) 678). It was observed as under:‑‑
"It is clearly a residuary power of the Board. The purpose was to arm the Board to, deal with the matters not provided for in the Act or Regulations. All such decisions of the Board have the status of domestic rules. The E&D Rules adopted by the Board through Resolution would be the rules framed under section 21 of Act, 1976, therefore, they will not have the status of statutory rules. These would be just domestic rules. Moreover, the Board is not competent to frame rule in respect of the terms and conditions of service. In this behalf, we may be fortified in our view by clause (iii) section 20(1) of Act, 1976..."
In the instant case no prior approval of the Controlling Authority exists on the record giving life to the Service Regulations.
11. The approval for adoption of Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 was accorded on 9-3‑1980 to the respondent‑Board. As observed by the Division Bench of this Court, the E&D Rules adopted by Board through resolution would be rules framed under section 21 of the Act of 1976 and will not have the status of statutory rules. These would be just internal rules.
As per Letter No.S.O.(BOARDS)1‑14/82, Government of the Punjab, Education Department dated 4‑4‑1985, the approval was accorded to the Board of Intermediate and Secondary Education, Multan and not to the respondent‑Board of Intermediate and Secondary Education, Rawalpindi. The contention of the learned Assistant Advocate‑General that the endorsement to Chairmen of all the Boards at the bottom of the letter for information and necessary action amounts to granting approval to‑ the other Boards as well, has no force. The said endorsement reads as under:‑
"No.S.O. (BOARDS)1‑15 Dated Lahore, the 21st January 1996
A copy is forwarded for information and necessary action to the Chairman, Board of Intermediate and Secondary Education, Lahore, Sargodha, D.G. Khan, Rawalpindi, Faisalabad, Bahawalpur and Gujaranwala. "
A copy had been forwarded to the Chairman for information and necessary action. Nothing has been brought on the record to show that the Rawalpindi Board ever sought approval from the Controlling Authority although a copy was forwarded to it for necessary action.
12. Under section 10(2)(xviii), the Board has been empowered to appoint such staff as it may consider necessary for the performance of its functions and define their duties and conditions of service. Under section 10(3) of the Act, authorises the Board to delegate any of its powers to its Chairman or any officer of the Board or to a Committee or sub Committee. Under section 12(8)(iii), the Controlling Authority may make Regulations concerning Efficiency and Discipline of officers and other employees of‑ the Board and under section 20(1)(iii), Board has been prohibited from making any regulation or adopting Rules and Regulations concerning Efficiency and Discipline of the officers not in conformity with the Rules. made by the Government. The Legislature in its wisdom did not delegate the power to frame Regulations concerning Efficiency and Discipline of the employees to the Board but reserved the power with Government.
Admittedly neither any regulation as contemplated under section 12(8)(iii) has been framed by the Government nor the Service Regulations framed under section 20(1)(iii) of the Act of 1976 were accorded approval by the Government. The Division Bench of this Court in the case of Muhammad Anwar Hussain v. Chairman BISE, Gujranwala supra held that Efficiency and Discipline Rules adopted by the Board through resolution would be rules framed under section 21 of the Act, 1976 and would not have the status of statutory rules. These would be internal rules. In the case of, "The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi" (PLD 1984 Supreme Court 170), the. Hon'ble Supreme Court has held as under:‑‑
"It is common ground that neither any rules, as contemplated by section 17 of the Ordinance nor any Regulations under section 18 thereof were framed. The Board of Governors did frame some 'rules' for 'governing the appointment, promotion, retirement, termination of service, and dismissal of staff employed by the Board of Governors of the College" in its meeting held on 29th September, 1964, but these not having been made by the Government, could not be regarded as 'rules' under section 17, nor having been approved by the Government, be treated as Regulations under section 18 thereof. These rules, therefore, could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College, Kohat."
Similarly, in the case of, "Karachi Development Authority and another v. Wali Ahmed Khan and others" (1991 SCMR 2434), the following observation was made:‑
"The other exception to the aforesaid general rule is that if the freedom of contract is placed under statutory fetters, by reserving controlling power with the Government in the matter of framing of rules or regulations touching the terms and conditions of service of the…
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