ASAD BASHIR Versus CHAIRMAN BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE and 2 others

M. JAVED BUTTAR, J.--- These appeals, by leave involving identical legal issue, are being decided by this common judgment.

2. The appellants in all these three appeals, were employees of the Board of Intermediate and Secondary Education, Lahore (hereinafter referred as the Board) and were awarded punishments, by the competent Authority, either of dismissal/removal or of compulsory retirement from service. Their appeals against the said orders were also rejected by the concerned appellate Authority. All of them invoked the constitutional jurisdiction of the Lahore High Court, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The learned Single Judges of the Lahore High Court through impugned orders/judgments, dismissed their writ petitions, on the ground that the rules governing the appellants' services, were non-statutory, therefore, the writ petitions were not maintainable.

3. We have heard the learned counsel for the parties at length.

4. Learned counsel for the appellants have referred to section 20 of the Punjab Boards of Intermediate and Secondary Education Act, XIII of 1976, whereby the Board has been empowered to make Regulations, subject to the approval of the Government, inter ilia, providing for the terms and conditions of service of the employees of the Board. Another restriction on the power of the Board to make Regulations was introduced through Punjab Boards of Intermediate and Secondary Education (Amendment) Ordinance XXXIII of 1985, vide which existing clause (iii) of subsection (1) of section 20 of the above said Act was substituted with the following:--

"(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 others employees which is not in conformity with rules made by the Government."

It may be mentioned here, that the Board may frame Rules, which are distinct from Regulations, for specific subjects, under section 21 of the above Act without the approval of the Government. Learned counsel have also referred to section 32 of the said Act, which reads as follows:--

"32. First Regulations .--Notwithstanding anything to the contrary contained in this Act, the regulations set out in the Schedule shall be deemed to be the first regulations framed by the Board under section 20 of this Act."

Precisely the contention is, that the Regulations framed by the Board read with sections 20 and 32 of the Act, make them statutory Regulations and violation of such Regulations entitles the aggrieved employee to maintain a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

5. The learned counsel for the respondent-Board has opposed the contentions and has submitted that the Regulations governing the service matters are neither part of the Schedule appended to the Act nor were framed by the Board with the approval of the Government, therefore, they are neither statutory regulations under section 20 of the Act nor they shall be deemed to be the first Regulations within the meaning of section 32 of the Act. It is has also been pointed out that even till today the Government has not given its formal approval to Regulations which were framed or adopted by the Board.

6. The same issue, relating to the Rawalpindi Board of Intermediate and Secondary Education, whose regulations framed by its Board, regarding which also no formal approval had been given by the Government, came under consideration of this Court in Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education, Rawalpindi and others (2004 SCMR 35) and it was held by this Court that the Regulations framed by the Board, not having been formally approved by the Government, as required by the Act, were merely internal instructions or domestic rules having no status of statutory rules. For the purposes of avoiding the repetition and for the sake of convenience, the relevant paragraphs of the said judgment are reproduced below:--

"6. We have considered the contentions raised by the learned counsel for both the parties and have gone through the documents appended with these petitions. The pivotal point in these petitions is whether the Chairman of the Board has the power to dispense with the services of the petitioner or not. The Act was promulgated on 21-7-1.976. Subsequent to this certain amendments have also been made in the same. The Board was constituted under section 3 ibid. The Board in its first meeting held on 15-11-1977, adopted the Rules of the Sargodha Board as on 20-10-1977 which were not inconsistent with the Act. Under section 20(1) (iii) of the Act, the Board is competent of frame Regulations subject to approval of the Government to carry out the purposes of the Act. However, the Board has got no power to make any Regulation or adopt any Rules or Regulations concerning Efficiency and Discipline of the officers/officials and other employees which is not in conformity with the Rules made by the Government. Similarly, under section 12(8)(iii) of the Act, Controlling Authority has also got the power to make Regulations concerning efficiency and discipline of officers and other employees of the Board.

7. The Service Regulations of the Employees of the Board were framed by the Board. However, as has been determined by the learned Single Judge of the Lahore High Court, the Government, as required by the Act, has not given its formal approval to these Regulations. In these circumstances, these Regulations may be termed as internal instructions or domestic rules having no status of statutory rules. Reference in this regard is made to the case of "The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170)". In that case, the Government under the West Pakistan Government Educational and Training Institution Ordinance, 1960 was empowered to make Rules for carrying out the purposes of the Ordinance under section 17 thereof. Similarly, under section 18, the Board was also empowered to make Regulations subject to approval of the Government. There was identical situation in the aforesaid case as ins now prevailing in the present case because the Regulations though made by the Board but the approval of the Government had not been secured. Similarly, the Government too had not made any Rules as mandated by section 17 ibid. This Court in such a situation in the aforementioned case 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 not 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."

7. The issue thus stands settled by this Court. The learned Single Judges of the High Court had correctly held that the rules /regulations governing the services of the appellants were non-statutory and, therefore, the constitutional petitions were not maintainable. These appeals, therefore, having no merit are dismissed, with no orders, as to costs.

M.B.A./A-157/S ????????????????????????????????????????????????????????????????????? Appeals dismissed.