' MIAN FASIH-UL-MULK, J.--- Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner seeks declaration to the effect that decision made and orders passed by respondents Nos.4 and 5 dated 22-4-2010 and 5-9-2010 and the advertisement published and actions taken thereunder be declared as without lawful authority and of no legal effect.
2. Briefly stated facts of the case are that petitioner was initially appointed as Principal of Pakistan Boy Scouts Cadet College Batrasi on 19-4-1999 on contract basis for a period of three years vide letter dated 19-4-1999. The services of petitioner were 'confirmed vide notification' dated 5-7-2000 w.e.f, 4th May, 2000, which were extended from time to time. On 24-12-2009 the Board of Management recommended extension of contract of petitioner for a period of 3 to 5 years but the Chairman (respondent No,4) while ignoring the recommendations of Board of Management extended period of contract only for one year w.e.f, 2-5-2010 vide letter dated 22-4-2010. In the meantime an advertisement was flouted in Daily Dawn of 5th September, 2010 seeking application for appointment of Principal. Petitioner feeling aggrieved of the act of Chairman and aforementioned advertisement has filed instant writ petition.
3. Learned counsel for petitioner contended that the impugned decision and advertisement are beyond the authority of their maker: The same are not only unconstitutional but proclaim their own arbitrariness.
' Elaborating his arguments, it was urged that Chairman Management Council alone is not competent to appoint or terminate the contract of employment of Principal. Such functions or powers are available to the Board of Management. It was further contended that Board of Management had recommended extension of petitioner's service for a period of 3 to 5 years on account of his outstanding performance but respondent No,4 has extended the period of contract for one year and illegally ignored the recommendations of extension for the rest of period. The impugned order/decision was passed in excess of jurisdiction and based on malice in law.
' On facts it was argued that because of hard work and missionary zeal petitioner was not only able to generate funds for construction of new building but also developed competitive skills in his students showing excellent results in the SSC and Intermediate Examinations every year. It was argued that respondent No,4 extended the service period of petitioner uptill 1st May, 2011 yet the impugned advertisement inviting applications for the post of Principal was unjustifiably published at a pre-mature stage. Reliance was placed on PLD 1989 SC 26, PLD 1997 Lahore 38, PLD 2003 Karachi 721, PLD 2010 SC 677, 1998 SCM R 2268 and PLD 2002 SC 326.
4. Learned counsel for respondent No,3, on the other hand, contended that subject appointment of petitioner was based on a contract, which creates no vested right. It was added that petitioner has no legal right to remain posted on the seat for indefinite period. An objection with regard to maintainability of writ petition was also raised. In that it was prayed that the writ petition merits outright dismissal because of contractual obligations involved in the matter and also that the answering respondents have never acted in violation of law. On merits, it was submitted that Chairman Board of Management was competent to issue or rescind the appointment letter or contract and no approval of Board of Management as such was required for extension of service of petitioner. It was further stated that petitioner is more than 70 years of age and he was rightly given one year extension instead of 3 to 5 years. Reliance was placed on PLD 1975 SC 244, 1988 CLC 1847 and 1997 CLC 1288.
' Learned counsel for respondent No,2 added that since no Management of Council is in existence, therefore, no approval as required under the rule was solicited.
5. Learned Deputy Attorney General representing respondent No,1, however, vehemently supported the arguments of petitioner and submitted that the Pakistan Boys Scouts Association was established through Ordinance No,(XLIII) of 1959. The .Statutory approved rules have been framed under the Ordinance and on violation of ibid rules this Court has ample jurisdiction to look into the matter and redress the grievance of petitioner. Learned counsel stressed that the impugned orders were issued in contravention of statutory rules, therefore, warrant interference by this Court.
6. We have heard learned counsel for parties at great length and gone through the relevant record with their able assistance.
7. Pakistan Boys Scouts Association Ordinance, 1959 was promulgated through Ordinance No,XLIII of 1959. In exercise of the powers conferred by Section 3 ibid and with the previous approval in writing of the Federal Government, Pakistan Boys Scouts Association Rules, 1992 were framed. Rule 15 mentions about the constitution of National Council. Rule 17 relates to various functions of Council which apart from other functions shall approve service rules for the employees and financial rules of association' and to make, amend and alter the rules and regulations of the Association.
8. On 22-10-1995 the Chief Commissioner Pakistan Boys Scouts Association vide Notification No,96/3925 dated October 22, 1995 in view of decision of the National Council of Pakistan Boy Scouts Association Pakistan in its meeting held at Muzaffarabad on 16th July, 1994 notified the creation and establishment of "Pakistan Scouts Cadet College Batrasi" w.e.f, 1st October, 1995. It was _notified that the College will function as a private institution under the Control and Management of an Autonomous Board of Governors to be constituted by the National Council of Pakistan Boy Scouts Association, the composition of Board was proposed as under:--- {{DATA UNARRANGED}} "Patron President of Pakistan/Chief Scout Chairman Chief Commissioner Pakistan Boy Scouts Association.
Vice Chairman One of the Deputy Chief Commissioners nominated by the Chief Commissioner.
Members 1. Federal Education Secretary,
2. Secretary Education, N.-W.F.P.
3. Commissioner Hazara Division
4. Secretary Pakistan Boy Scouts Association,
5. Director Training and Programme Pakistan Boy Scouts Association,
6. Treasurer Pakistan Boy Scouts Association,
7. A volunteer Member of the National Council, PBSA nominated by the Council,
9. A notable from Hazara Division to be nominated by the Board,
9. A representative of the Parents nominated by the Board.
Secretary cum Member. Principal {{DATA UNARRANGED}}
9. Pakistan Boy Scout Association Rules, 1995 were framed wherein Government of Pakistan E&D Rules, 1973 were applied to all employees of Association and were made liable to disciplinary actions and penalties in accordance with Pakistan Government Servant (Efficiency and Discipline)
Rules, 1973 and Civil Servants (Conduct) Rules, 1964. Similarly, the Board approved College Rules earlier scrutinized by the Executive Committee. According to Board of Management conduct of Business Rules powers and functions of the Board and its Chairman were specified. It would be advantageous to reproduce=the functions and powers of Board and its Chairman:---
3. Powers and functions of the Board:---
(a) The Board shall have perpetual succession, and a common seal, with powers to enter into contract and to acquire, hold and dispose of moveable properties and to erect, alter and maintain the same, and shall in its corporate name sue and be sued.
(b) It shall be the governing body of the College and shall take such steps as are necessary for the establishment and efficient management of the College. It shall lay don policies and shall guide and supervise the affairs of the College.
(c ) It shall have powers to appoint committees, or other ad-hoc bodies, for carrying out such functions and duties as may be assigned to them.
(d) It may frame, amend or repeal any rules and bye-laws for efficient management of the College.
(e) It shall determine the terms and conditions of the service of the employees of the college and shall frame rules of service, conduct and discipline for them.
(f) It shall have powers to adopt rules, regulations and statutes, or relevant portion thereof for its own use and application framed by a corporate body, institution or Government on subjects not covered by and inconsistent with its own rules or provisions.
(g) It shall have powers to order enquiry, suspend, discharge, dismiss, reduce in rank, withhold increment or take such or any other disciplinary action against any of college employees as per rules framed under the articles.
(h) It shall recruit and determine terms and conditions of service of the Principal and other members of the staff of the institution and servants of the Board.
(j) It shall consider the annual budget estimates for the College to be presented by the Secretary before the beginning of every financial year.
(k) It shall consider the audited statement of accounts for the preceding year to be presented by the Secretary and shall pass the same in good time.
(1) It shall have powers to suspend an expenditure sanctioned in the budget and to authorize an.
Expenditure not provided for or beyond the budgetary limits in any financial year.
(m) It shall accept scholarships, donations, contributions property or assets on conditions which shall not in any way be detrimental to the interest of the college and shall hold funds which would assist and shall be in furtherance of the objectives of the Board.
(n) With reference to para(a) above, the prior approval of Pakistan Boy Scout Association / National Council shall be sought in case of disposal, sale, lease, contract of the immoveable properties.
4. Powers and Functions of the Chairman:
(a) He shall exercise the powers of the Board of Management in an emergency. Which shall on the first available opportunity be brought before the Board of Management for its formal approval.
(b) He shall act as an appellate authority on any disciplinary action taken by the Principal against College employees.
(c) He shall have access to all the properties, record, documents and office of the Board and College, and may issue instructions, directions and guidance in conformity with the rules of the Board.
(d) He may call for report from the Secretary on any matter concerning the Board of the College.
(e) He shall have the financial powers as provided for him in the financial rules.
(f) He shall preside the meetings of the Board and shall have the casting vote in addition to his vote as member.
(g) He shall decide all points at the meetings of the Board, and his decisions in respect of all matters, including the interpretations of rules, shall be final and conclusive for the purpose of the applications of the rules of the Board.
(h) He may perform such other functions of the Board as may be delegated to him by it."
10. It is thus clear from Rule 3(h) that it is the Board alone and no other authority to recruit and determine terms and conditions of service of the Principal and other members of the Staff of the Institution and servants of the Board. It is also evident from Rule 4(a) that the Chairman of Board can exercise the powers of the Board of Management in an emergency, which shall on the first available opportunity be brought before the Board of Management for its formal approval.
11. Considering the impugned orders/actions and publication of advertisement for inviting applications for the post of Principle on the touchstone of cited rules, it is crystal clear that respondents Nos.4 and 5 have acted in excess of jurisdiction by ignoring the recommendations of Members of Board of Management. Respondent No,4 has exercised powers, which were not available to him under the rules.
12. As far as the scope of judicial review is concerned needless to mention that all public functionaries deriving authority from or under law are obliged to act justly, fairly and equitably.
Deviation, if any, of substance and grounded on malice in law or fact can be corrected through appropriate orders under Article 199 of the Constitution.
13. Consequently, this writ petition is allowed. Decisions of respondent No,4 dated 22-4-2010 and 5-9-2010 to the extent of non-consideration of recommendations of Members Board of Management and order made by respondent No,5 as conveyed vide memo. Dated 22-4-2010, advertisement published and actions taken thereunder are declared without lawful authority and are hereby set aside Respondent No,4 is directed to convene the meeting of Members Board of Management for considering the case of petitioner and the Board of Management shall thereafter pass an appropriate order strictly in accordance with law and rules.