MUHAMMAD AFZAL vs BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE through Secretary

' MUHAMMAD NAWAZ ABBASI, J.--- This appeal by leave of the Court has been directed against judgment, dated 19-7-2006 passed by learned Judge in Chambers of the Lahore High Court, Lahore, whereby constitutional petition filed by the appellant challenging the decision of the Board of Intermediate and Secondary. Education (hereinafter called "the Board") against the order of refusal of grant of advance increments in terms of the policy of the Board has been dismissed.

2. The appellant at the time of joining service in the Board as Junior Clerk was matriculate and during the service, he having improved his qualification in terms of the Policy of the Board for grant of advance increments on higher qualification, applied for grant of advance increments and having not been able to get any relief, he filed a Writ Petition No,10210 of 2003 in the Lahore High Court, Lahore, which was disposed of with the following observations:-- "The first essential fact is to determine whether there has been any binding regulation or order for obtaining prior permission of the competent authority in the Board for appearing in an examination as a private student while the other fact required to be ascertained is whether during the examination days the petitioner had obtained leave from the competent authority. In the circumstances, therefore, the Board itself will be a proper authority to go into these questions and decide the matter. Accordingly, a copy of this writ petition shall be forwarded to respondent No,1 to be treated as an appeal against the order dated 20-6-2002 for decision in accordance with law in the light of observations made in this judgment. No order as to costs. Disposed of."

3. In pursuance thereof, the Board having considered the matter, declined to grant the benefit of advance increments, vide order, dated 12-6-2004 and appellant being aggrieved of the order of the Board, filed Writ Petition No,18294 of 2004 before the Lahore High Court which was disposed of through the impugned order with the following observations:-- "The point taken by the learned counsel for the petitioner bears relevance to the guilt/responsibility of the petitioner for the charge of misconduct in the disciplinary proceedings taken against him.

But the said outcome of the enquiry proceedings has no impact on the petitioner's entitlement to advance increments. The grant of the latter relief is dependent upon certain procedural prerequisites. The impugned order, dated 28-2-2005 required the petitioner to obtain prior ex post facto permission for grant of advance increment. This condition is not a refusal to grant the relief prayed but is meant to be a procedural step to regularize the petitioners' case the petitioner has neither satisfied the condition nor disclosed the same in this petition nor challenged the same. He is, accordingly, obligated to secure the said permission. The writ petition therefore, has no merit for the relief prayed and the same is accordingly dismissed."

4. Leave was granted in this appeal vide order, dated 6-10-2006 as under:-- "After hearing the learned counsel for the parties, we grant leave to appeal to consider, inter alia, the question whether the petitioner was entitled to the incentive of advance increments upon acquisition of higher academic qualifications of Intermediate, B.A. And M.A., as per Policy of the respondent-Board. Since short points are involved, the office is directed to set down this appeal, on its present record, within a period of six months. However, the parties may file additional documents with the permission of the Court."

5. Learned counsel for the appellant with reference to the Policy on the subject, has contended that there was no need of prior permission of the competent authority to appear in the examination of Board and University to improve the qualification and appellant in his own right without causing any disturbance in his official assignment could appear in such examinations without formal permission of the Department.

6. Learned counsel representing the Board, on the other hand, with reference to the letter, dated 28-2-2005 of the Board, contended that if an employee appears in the examination, without the permission of competent authority, he cannot claim benefit of advance increments as of right and placing reliance on a letter dated 4-2-1963 of the Government of Punjab, submitted that such permission was necessary in contemplation of the instruction contained therein. The learned counsel without satisfying us that service rules and regulations of the Government of Punjab applicable to its employees unless adopted by the Board would applicable to the employees of Board submitted on the strength section 12 of the Punjab Boards of Intermediate and Secondary Education Act, 1976, that since Government of Punjab is Controlling Authority of the Board, therefore, all Service Rules and Regulations applicable to the employees of the Government of Punjab would be impliedly applicable to the employees of the Board. We are afraid the B argument has no substance. This is settled principal of law that unless the Rules and Regulations of the Provincial or Federal Government are specifically adopted by a statutory body controlled by such Government, the same cannot be automatically made applicable to employees of statutory body.

Learned counsel for the respondent-Board has also not been able to satisfy us that the letter dated 28-2-2005 issued by the Board would have retrospective effect to deny the benefit already accrued in favor of the appellant under the Policy of the Board for grant of advance increment to its employees on improvement of the qualification.

7. The right of education is an inalienable right of every person and no one can be denied such right, therefore, notwithstanding the requirement of prior permission to appear in the examination for official purposes, the improvement in the educational qualification, without permission of the concerned authorities may have no penal consequence to refuse the benefit of the scheme of grant of advance increment to an employee who has improved his qualification during the service.

8. Having heard the learned counsel for the parties and perused the record, we have not been able to find out any justification for refusal of advance increments to the appellant and High Court virtually having recognized the right of appellant by . Making observation in the concluding para of the impugned judgment that the appellant should obtain ex post facto permission for grant of advance increment has acknowledged the right of the appellant.

9. In the light of foregoing reasons, we hold that subject to the fulfillment of criteria and other conditions if any, the appellant was entitled to the grant of advance increment in terms of the Policy of Board and was wrongly denied the said benefit. This appeal is accordingly allowed with no order as to costs.