' AKHTAR ZAMAN MALGHANI, J---The following reliefs have been claimed in the instant constitutional petition:- "(a) That the order dated 29-4-2004 passed by respondent No,2 by transferring and posting the respondent No,4 as Assistant Controller (B-17) in Balochistan B.I.S.E. Quetta on deputation initially for a period of three years is illegal, unlawful and without jurisdiction and deserves to be declared as such.
(b) A further direction to the respondents Nos.1 to 3 to fill the post of Assistant Controller by promotion from the next lower grade on the basis of seniority cum merits without restriction of qualification in accordance with the Balochistan B.I.S.E. Ordinance, 1977 and the B.I.S.E. Employees Service Regulations, 1991.
(c) Any other relief which may please be deemed fit and proper in the circumstances of the case may also be awarded to the petitioners.
(d) Cost of the petition."
2. Briefly stated, facts of the case are that the petitioners are employees of Board of Intermediate and Secondary Education Balochistan, Quetta. It is grievance of the petitioner that the respondent No,4 who was previously working as Librarian in B-16 in Government Inter College Muslim Bagh was transferred and posted as Assistant Controller B-17 in the Board on deputation for a period of 3 years against the provisions of B.I.S.E. Ordinance, 1977 and BISE Employees Service Regulations, 1991 as according to the relevant laws only Chairman, Secretary, Controller of Examination can be appointed in the B.I.S.E. Whereas for the remaining posts appointments are to be made in accordance with the provisions of Ordinance and Regulations made thereunder but in order to favour respondent No,4 who is brother of Provincial Minister for Education, his services were transferred to the Board in contravention of Ordinance and Regulations.
3. We have heard the learned counsel for the parties. It is vehemently contended by the learned counsel that the deputation of respondent No,4 and his appointment as Assistant Controller in the Board was illegal being contrary to Ordinance and Regulations as the Board is autonomous body and rules of deputation applicable to Government Servant are not made applicable to the employees of Board. He further contended that the post of Assistant Controller was to be filled in from the employees on the basis of seniority cum merit basis but on account of illegal appointment of respondent No,4 the petitioners have been deprived from their legal rights.
According to him even the deputation was not by the Government of Balochistan being Controlling Authority as is evident from the copy of summary produced in the Court which shows that the approval was given by Secretary S&GAD who has no concern with the Board or Board Employees and the powers exercised by him in the garb of Notification issued in respect of Government Employees were without jurisdiction and without lawful authority.
4. On the other hand, the learned counsel for the respondent No,4 vehemently contended that the petitioners are not aggrieved persons within the meaning of Article-199 of the Constitution of Pakistan, as such; they cannot maintain instant constitutional petition because the post of Assistant Controller, according to the Service Regulations of the Board are to be filled in though promotion and initial appointment in proportion of 2/3rd and 1/3rd respectively. As far as promotion quota is concerned, that has been exhausted and remaining posts were to be filled in by initial recruitment. He further contended that the government has power under Section-33 (4) of B.I.S.E. Ordinance, 1977 to appoint any person to the post of Assistant Controller/Assistant Secretary.
5. Learned counsel for the respondent No,1 supplementing arguments of the learned counsel for the respondent No,4 contended that under section 33 (4) of the B.I.S.E. Ordinance, Controlling Authority is empowered to create posts or appoint the First Chairman, First Secretary, First Controller of Examination and any other officer whereas under section 12 the Government is Controlling Authority of the Board, therefore, the respondent No,4 was rightly and legally posted as Assistant Controller.
6. The learned Assistant A.G. Contended that according to the Notification dated 17-10-2001 issued by the Government of Balochistan, Secretary S&GAD is empowered to approve deputation of any government servant. He further stated that deputation of respondent No,4 was approved by Secretary, S&GAD who was competent authority in the matter, as such; no illegality has been committed for transfer of service of respondent No,4 to the Board and the petition being without merits is liable to be dismissed.
7. We have carefully considered the contentions put forth by the parties learned counsel and have also gone through the relevant law, Regulations of Board, Balochistan Establishment Manual copy whereof was placed on record by Deputy Secretary S&GAD. It may be seen that the Board was set up under B.I.S.E. Ordinance X of 1977 and according to section-3 the Board is a body corporate.
Section-11 empowers the Board to appoint such officers and staff as it may consider necessary.
Similarly under section 12 of the Ordinance Government of Balochistan is Controlling Authority of the Board whereas Board has been empowered under section 20 of the Ordinance to make any regulation subject to approval of Government of Balochistan. The Board under the power conferred upon it by virtue of Section-20 framed regulations called Board of Intermediate and Secondary Education Service Regulations, 1991 with the approval of government. Perusal of regulation 11 shows that the following rules as amended from time to time were made applicable mutatis mutandis to the employees of the Board:--
(i) The Balochistan Civil Servant (Efficiency and Discipline) Rules, 1983.
(ii) Revised Leave Rules for Civil Servants Balochistan Government, 1984.
(iii) Balochistan Government Servants (Conduct) Rules, 1979.
(iv) Government of Balochistan Pension Rules.
(v) Balochistan Civil Servant (Appeals) Rules, 1983.
' It has been further stated in the said Regulation that any reference to the Secretary of the Government shall be construed to be reference to the Board. It may further be observed that the Balochistan Civil Servants (E&D) Rules, 1983 were repealed under rule-16 of the Balochistan Civil Servants (E&D) Rules, 1992 which were not adopted or incorporated in the Regulations 1991 by the Board nor any approval of the Government was obtained in this behalf as provided by Section-20 of the Ordinance-X of 1977, therefore, the same could not be read as part and parcel of Regulations, 1991 by reference as already held by this court in C.P. No,52 of 2000 and we have been informed that the said judgment has been upheld by the Hon'ble Supreme Court by refusing to grant leave to appeal, therefore, it is evident that neither Civil Servants Act, 1974 nor any other rules made thereunder except the rules mentioned in Regulation 11 are applicable to the employees of Board. Admittedly respondent No,4 was a government employee and in order to transfer his services to the Board the authorities should have adhered to the provisions of Ordinance, 1977 and regulations made thereunder but the perusal of impugned Notification shows that the same was issued by the Secretary Education which reads as under:-- "No,So (Academic) 5-1-2002 4594-99/-with the approval of the competent authority, Mr. Abdul Qahir, Librarian (B-16), Government Inter College, Muslim Bagh is hereby transferred and posted as Assistant Controller (B-17) in Balochistan Intermediate and Secondary Education, Quetta on deputation basis initially for a period of three years.
' The terms and condition of his deputation will be stated lateron."
8. Undisputedly the approval for his deputation was granted by Secretary S&GAD and not by the government. It has been stated that under the Notification dated 7th October, 2001 Secretary S&GAD has been empowered to grant approval of deputation cases but in our view the rules applicable to the Government Servant, as discussed above are not applicable to the employees of Board until and unless these are adopted with the approval of Controlling Authority by the Board.
Even otherwise Regulation-11 (c) provides that any reference to Secretary of Government shall be construed to be a reference to Board; therefore, even if the said notification is taken into consideration it was the Board which was competent to approve deputation of respondent No,4 and not the Secretary S&GAD. Undisputedly the Board which according to section 2 (a) read with section 6 of Ordinance-X of 1977 is consisting of Chairman, a University Professor, Director of Education, Principal Government Poly Technique Institute Quetta, one representative of Syndicate of University, Principal of a College nominated by Controlling Authority, representative of Heads of Intermediate Colleges to be elected by the Principals from amongst themselves, one representative of Head Masters/Head Mistress to be elected by the Head Masters/Head Mistress amongst themselves and two persons nominated by the Controlling Authority, has not approved the deputation of respondent No,4 and only Chairman Board who cannot be presumed to be Board has recommended (not approved) for deputation of respondent No,4 nor any Notification has been placed on record which could show that the Board has delegated its power to Chairman Board. In this regard the learned counsel for the respondent Board contended that under section 33 (4) of the Ordinance-X of 1977 the controlling Authority which is Government of Balochistan is competent to appoint any officer in the Board. In orders to correctly appreciate the arguments so advanced we find it appropriate to reproduce section 33 (4) herein below:-- "Notwithstanding anything contrary in the Ordinance the Controlling Authority may create posts or may appoint the first Chairman, the first Secretary, the first Controller of Examinations and any other officer for a period not exceeding two years".
' It is abundantly clear from the above reproduced provisions even if it is presumed that the same are applicable such posting/appointment can be made only for two years and not more than that, whereas undisputedly the Notification speaks about deputation for three years, as such; on this score also Notification so issued was illegal and without lawful authority.
' As regards objection of the learned counsel with regard to maintainability of petition on the ground that the petitioners are not aggrieved persons, it may be seen that the petitioners are employees of Board and any illegal appointment made in the Board would certainly effect their rights and privileges which is also evident from the reply of respondent No,1 dated 23-11-2005 wherein it has been stated that the cases of promotion of three petitioners namely Abdul Ghafoor, Mehran Khan and Jan Muhammad Senior superintendents to Assistant Controller have been recommended by Appointment Committee according to seniority cum fitness against the vacant posts and Notification to this effect will be shortly issued which shows that the stand taken in the parawise comments that all the vacancies of promotion quota have been filled in is not correct and at the time of filing of this petition there were certain vacancies available to be filled in from promotion quota as such petitioners are aggrieved persons within the meaning of Article 199 of the Constitution of Pakistan and objection taken in this regard is without any substance.
' For the foregoing reasons we are inclined to declare Notification dated 19-4-2004 to have been issued without lawful authority and of no E legal effect. Parties are left to bear their own costs.