' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 3-7-2002 of a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby I.C.As.
Nos.70 and 71 of 2002, filed by the petitioner were dismissed maintaining the determination of the learned Single Judge, whereby Writ Petitions bearing Nos.1922 and 1952 of 1999 tiled by him were dismissed being not maintainable.
2. The facts briefly are that the petitioner was appointed as Junior Clerk in BPS-5 by the Chairman, Board of Intermediate and Secondary Education, Rawalpindi (hereinafter referred to as the Board) on 14-6-1980. He was suspended from service by the Chairman of the Board and a show-cause notice was issued to him on 7.10-1989 which was as under:-- "Subject:-- SHOW-CAUSE NOTICE.
' Whereas the undersigned, as Authorized Officer, in your case has been directed by the Authority to proceed against you under the Punjab Civil Servants (E&D) Rules, 1975 on the following allegations:- -
(1) A report has been received from the FIA (S.I. Unit), Islamabad that you Mr. Zia Ghafoor Piracha son of Abdul Ghafoor Piracha, Junior Clerk of Establishment Branch of this Board. Have been arrested by the said Unit in a case F.I.R. No,4 dated 28-9-1989 filed under sections 420, 468 and 471, P.P.C. Blank Degrees of Punjab University and F.A./Matric Certificates of Rawalpindi Board have also been recovered from you. Consequently you have been found indulged in using the name, insignia and stamps of the Board for ulterior motives (as further detailed in the enclosed statement of al legat ions).
' And whereas the undesigned has decided that it is not necessary to have an inquiry conducted in proof thereof and whereas it is proposed to proceed against you under sub-rule (3) of rule 6 of the Punjab Civil Servants (E&D) Rules, 1975.
' Now, therefore, you are hereby called upon to show cause in writing within 14 days of the receipt of this communication as to why one or more of the penalties as prescribed in rule 4 of the Punjab Civil Servants (E&D) Rules, 1975, should not be imposed on you.
' Your explanation (in duplicate) should reach the undersigned within the said period, failing which it shall be presumed that you have no defence to offer, and do not wish to be heard in person.
' In case you may desire to consult any record on which the aforesaid charges are based or is relevant to the aforesaid charges, you may do so with prior arrangement with the undersigned within 7 days of the receipt of this Notice."
3. The petitioner challenged the authority of the Chairman to appoint authorized officer alongwith the suspension order through Writ Petition No,535 of 1991 in which an interim relief was granted.
However, the main Constitutional petition remained pending. During the pendency of the said petition, he was served with at least seven show-cause notices and last of which was issued to him on 5-8-1999 which was in the following terms:-- "Subject: SHOW-CAUSE NOTICE ' Whereas the undersigned, as authority in your case has decided to proceed against you under the Punjab Civil Servants Efficiency and Discipline Rules, 1999 on the following allegations: I. That you on 2-8-1999 entered in various branches of the Board and instigated the employees of the Board to stop Mei.. Official work and also pulled them out forcefully from their offices. Your this act tantamounts to misconduct and subversive activity.
2. That by virtue of the above act on your part you have interfered in the performance of the official duties by the officials of the Board which leads to misconduct on your part.
3. That by your above act, you have violated the provisions of Punjab Civil Servants (Essential Services) Act, 1958 which is applicable in all employees of the Board.
' And whereas the undersigned has decided that it is not necessary to have an inquiry conducted in proof thereof, and whereas it is proposed to proceed against you under sub rule (3) of rule 6 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999.
' Now, therefore, you are hereby called upon to show cause in writing within 14 days after the receipt of this communication as to why one or more of the penalties as prescribed in rule 4 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 should not be imposed on you.
' Your explanation must reach the undersigned within the said period, failing which it shall be presumed that you have no defence to offer and do not wish to be heard in person and as such ex parte action shall be taken against you on the basis of available evidence/material."
' Since the petitioner neither submitted any reply nor availed the opportunity of personal hearing in spite of offer, therefore, he was dismissed from service through order dated 27-8-1999. Exception was taken to the said order by the petitioner by filing Writ Petition No,1922 of 1999. It may be mentioned here that pursuant to one of the above mentioned show-cause notices, a removal order from service dated 4-9-1999 was also passed which too was challenged by him through Writ Petition No,1952 of 1999. Both these writ petitions were dismissed alongwith the other writ petitions filed earlier by the petitioner being not maintainable through a consolidated judgment dated 10-6- 2002. He filed I.C.As. Nos.70 and 71 of 2002 respectively which too were dismissed in limine by a learned Division Bench of the Lahore High Court vide impugned judgment dated 3-7-2002. Hence, these petitions for leave to appeal.
4. The main thrust of the arguments advanced by the learned counsel appearing for the petitioner in these two petitions was that the learned Judges of the Division Bench did not at all advert to the arguments raised by the petitioner in his Intra-Court Appeals. He submitted that the Chairman of the Board has got no authority whatsoever under the law to pass the impugned order of dismissal/removal of the petitioner. He prayed that the cases may be remanded and the learned Division Bench be directed to determine the points involved in these petitions, particularly the authority of the Chairman.
5. The learned counsel appearing for the respondent Board has supported the impugned judgment by saying that the petitioner by his nefarious acts has tried to sabotage the smooth functioning of the Board. He created law and order situation by his act of misbehaviour and insubordination and also instigated the other staff members to go on illegal strike. As regards corruption it was submitted by the learned counsel for the Board that the respondent was caught red-handed and the matter was enquired into by the F.I.A. Authorities whereupon F.I.R. No,4 of 1989 was got registered against him on 28-9-1989 under sections 420, 468 and 471 P.P.C. On the allegations of supplying forged B.A. Degrees and F.A./Matric Certificates as well as other incriminating material. In support of his stance that the Chairman has got Authority to initiate disciplinary action against the petitioner he has read out certain provisions of the Punjab Boards of Intermediate and Secondary Education Act, 1976 (Act XIII of 1976) (hereinafter referred to as an Act) and the Regulations framed thereunder.
6. We have considered the contentions raised by he 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 21-7-1976. 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. Uncle' section 20(1)(iii) of the Act, the Board is competent to 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 is 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 riot 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.
8. The learned Single Judge of the High Court has also in his judgment dated 10-6-2002 2002 PLC (C.S.) 1571 dilated upon the status of the Regulations framed by the Board and adaption of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 which approval was accorded on 9-3- 1980 to the respondent Board. It would be appropriate to reproduce the same which is in the following terms:- "The effect of adoption of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 and the framing of Regulations 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 etc." (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 rules 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 and 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,SO(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 Chairman 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 Guj ranwal a. "
' 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.
' 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 power to its Chairman or any officer of the Board or to a Committee or subcommittee. Under Section 12(8)(iii), the Controlling Authority may make Regulations concerning Efficiency and Discipline of officers a d other employees of the Board and under section 20(1)(iii), Board has been prohibited from making any regulation or adopting rules & 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 v. Chairman. BISE, Gujranwala (supra) held that Efficiency and Discipline Rules adopted by the Board through resolution would be unless framed under section 21 of the Act, 1976 and would not have the status of statutory rules. These would be internal rules."
9. The argument of the learned counsel by relying upon section 12(1-A) of the Act that it was only the Controlling Authority i,e, the Government which has the power under the law to take disciplinary action is devoid of any force. Section 12(I-A) is reproduced as under:- "(I-A). The Controlling Authority may at any time suspend a member, any officer or an employee of the Board."
' It would be also appropriate to reproduce section 12(8)(iv) which is as under:-- "(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."
The reading of the aforesaid provisions brings us to an irresistible conclusion that apart from the Controlling Authority disciplinary action against the employees can also be taken by the Chairman in some cases. The Controlling Authority is not the sole authority in this regard. It would be appropriate to reproduce the determination of the learned Single Judge, which is as under:-- "The contention of the learned counsel for the petitioners that the Controlling Authority is the only authority under section 12(I-A) to suspend an employee of the Board is devoid of any force, Section 12(1-A) is reproduced under:-- "The Controlling Authority may at any time suspend 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 an employee of the Board. Under Section 12(8)(iii), "The Controlling Authority may make regulations concurring 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 not 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 authorized, the Controlling Authority has also the power to initiate any such proceedings against an employee of the Board or other person is that they shall not initiate disciplinary proceedings. If the same have been initiated by the Controlling Authority."
10. There is another important aspect of this case which requires consideration. Section 15 of the Act has provided that the Chairman shall be Principal Executive and Academic Officer of the Board.
Section 13 of the Act has provided that there would be officers of the Board which includes the Chairman, the Secretary and the Controller of Examinations and such other officers as may be appointed by the Controlling Authority. However, the other category of the persons are termed as employees and not officers. This would also be apparent from the reading of Section 12(1) (a) of the Act as earlier quoted which provides that the Controlling Authority may at any time suspend a member, any officer or an employee of the Board. Furthermore, section 14 of the Act makes it abundantly clear that the officers of the Board could only be appointed by the Controlling Authority while this is not so in case of employees of the Board. Section 17 of the Act further clarifies that officers and employees are two distinct categories, which provides as under:-- "An officer or other employee of a Board shall retire from service after 25 years' service by the competent authority or Controlling Authority."
' Further in the explanation of this section, it is provided that "competent authority" means the appointing authority or a person duly authorized by the appointing authority in that behalf.
11. The accumulated reading of the Act and Regulations demonstrate that there are different categories of persons working in the hierarchy of the Board. Some are termed as officers whose terms and conditions are determined by the Controlling Authority but respecting certain employees falling in BPS-5 to 15, according to Regulation 8, the Chairman has got all the powers under the Law as well as Regulations.
12. Admittedly the petitioner was appointed by the Chairman being Competent Authority and it does not lie in his mouth to say at this juncture that the disciplinary action cannot be taken against him by the Chairman. According to the explanation of section 12(1-A) the appointing authority is also Competent Authority. The accumulated result of the aforesaid discussion is that the Regulations of the Board are not statutory in nature and adaption of the Punjab Civil Servants (Efficiency and Discipline) Rules would also not make them statutory in nature. Reliance in this respect is placed on the case of "Hamid Mukhtar Piracha v. Faisalabad Development Authority (1984 PSC 42).
13. The net result of the aforesaid discussion is that the learned Division Bench of the Lahore High Court has not committed any error in maintaining the well-reasoned determination made in this regard by the learned Single Judge dismissing the Constitutional petition as being not maintainable. These petitions are therefore, dismissed and .