' IJAZ AHMAD, J.--- This single order will decide the captioned writ petition as well as Writ Petition No,857 of 2009 (Muhammad Ahmad v. Chairman, and others) and Writ Petition No,491 of 2009 (Arshad Hussain Satti v. Chairman BI&SC and others) as the same questions of law and facts are involved in all these petitions.
2. The petitioners are the Lower Division Clerks in the Board of Intermediate and Secondary Education, (BI&SE), Rawalpindi: The Government of the Punjab, Education Department vide letter dated 23-11-1998 approved the computerization of the record of BI&SE. According to the summary sent to the Chief Minister, the Data Entry Operators were to be raised from within the Board. The BI&SE invited applications from Junior and Senior Clerks with typing speed of 40 w.p.m. The petitioners equipped with all the qualifications, applied. They were subjected to test. The Selection Committee, after due process, prepared the merit list. The names of the petitioners appeared therein. The appointment letters were issued to the petitioners as Computer Cell Operators in their own pay and scales on temporary basis. The petitioners started performing their duties and continue to do so till day. They are being paid the salary entitled to an employee in BS-7.
3. The learned counsel for the petitioners relying on a Notification No,ASF(Admn.-I) 431/06 dated 28-9-2006 issued by the BI&SE, Rawalpindi wherein sanction for creation of various posts was granted, argues that the said notification provides BS-11 for Data Entry Operator. The same notification provides the procedure for the recruitment. It lays that these posts will be filled in from within the office from Junior and Senior Clerks who are equipped with the required qualification and qualify the typing test of 40 w.p.m. In English. Argues that the selection of the petitioners has been made from within the office. They, possessed with the requirement qualification and the typing speed, are entitled to salary in BS-11.
4. On the other hand, it is contended by the learned counsel appearing on behalf of the BI&SE, Rawalpindi that the appointment letters of the petitioners stipulate that they have been appointed in their own pay and scale on temporary basis. They cannot claim the salary in BS-11. He argues that the regulation relating to the Conditions of Service of the petitioners being non-statutory in nature, the relationship between the Board and the petitioners is that of master and servant, therefore, this petition is not maintainable. Refers to sections 12(20) and (21) and also relies on "Zia Ghafoor Paracha v. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others" 2002 PLC (C.S.)
5. I have heard the learned counsel for the parties and also gone through the record.
6. The BI&SE, Rawalpindi is a subject to the Punjab Board of Intermediate and Secondary Education Act, 1976. Under section 11 read with section 2(f) and (g), the Government of Punjab shall be the controlling authority of the Board. Section 12 of the Act relates to the powers of the controlling authority. Under subsections (8)(iii) of section 12, the controlling authority may make regulation concerning efficiency and discipline of officers and other employees of the board. Making of some other regulations has been left to the Board. Subsection (20) of section 12 reads as follows:---
(1) A Board may, subject to the approval of the Government frame regulations, not inconsistent with the provisions of this Act, to carry out the purposes of this Act.
(ii) The draft of regulations shall be forwarded to the Controlling Authority and shall not be effective until it has been approved by the Controlling Authority;
(ii) 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 other employees which is not in conformity with rules made by the Government.
(2) In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for;
(a) The terms and conditions of service of the employees of a Board including matters relating to grant of leave to, and retirement of such employees;
7. Chapter 9 of the Calendar of the BI&SE, Rawalpindi pertains to the Service Regulation of the employees of the board. Their lordships in the judgment cited as "Zia Ghafoor Paracha vs. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others" (2002 PLC (C.S.) 1571) pertaining to the BI&SE, Rawalpindi were of the view the board could frame the regulation but the same were subject to the approval of the Controlling Authority, but there was no proof that the regulations have been approved. It was held that the relationship between the Board and its employees was that of master and the servants. The petition was said not to be maintainable. This judgment was upheld by the august Supreme Court of Pakistan in the case reported as "Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others" (2003 PLC (C.S.) 1404). No doubt the petitioners in the instant petitions are governed by the non-statutory rules and the relationship between the respondents and the petitioners is that of the master and the servant. The august Supreme Court of Pakistan in another case tilted "Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi" (2010 SCMR 1484) was of the view that except for the employees governed by the statutory rules, the others are not the civil servants. They were governed under the relationship of master and the servant and the Service Tribunal had no jurisdiction in their case.
Similarly was the view of their lordship in case cited "Mrs. Anisa Rehman v. P.I.A.C. And another"
(1994 SCMR 2232) and in the last mentioned case, leave to appeal was granted to dilate upon the question, whether the principle of natural justice can be pressed into service keeping in view the judgment of the said Court in the case reported as "Pakistan and others v. Public-at-Large and others" (PLD 1987 SC/Shariat Appellate Bench 304). Their lordships declared the impugned order reverting the appellant therein being without lawful authority. It was left open to the authorities to take fresh action after hearing the appellant.
8. The cumulative effect of the above-referred judgments is that the relationship of the respondents and the petitioners is that of the master and servant as the petitioners are governed by non-statutory rules, not having been approved by the Controlling Authority, therefore they are not the civil servants. They cannot even have the recourse to Service Tribunal. In such a situation, can the petitioners press the principle of natural justice? The answer could not be any but positive.
As has been held in "Secretary, Revenue Division and' others v. Muhammad Saleem" (2008 SCMR 948), the jurisdiction vested with the Superior Courts are general and wide in scope and extent, while the constraints are narrow in their applications and dimension. The jurisdiction of the Superior Courts is to be stretched to take into its folds all the disputes needed to be resolved. While the limitations on the jurisdiction and powers are to be harnessed and to be kept to the minimum in extent and length. Their lordships in the Division Bench in case titled "Dr. Prof. Syed Qasim Mehdi v.
Registrar, University of Karachi and 2 others" (2009 PLC (C.S.) 245) were of the view that even if the rules and the regulations framed under any Act created the relationship of master and servant, the same did not confer on the master the unfettered powers to act in violation of the principles of natural justice and well settled norms of justice. The matter in hand concerns little with the terms and conditions of the service of the petitioners. The question of maintainability of these petitions has to be decided on, altogether a different touchstone, i.e. How should the respondents while performing their functions in connection with the affairs of the Province of a local authority behave themselves. The respondents cannot resort to autocratic practices and cannot claim unfettered powers to be exercised. The Government of Punjab Education Department vide its letter dated 23- 11-1998 approved the computerization of the record of BI&SE. The Data Entry Operators were to be raised from within the board. The petitioners were selected. Appointment letters as Data Entry Operator on temporary basis on their pay and scales were issued to them on 21-3-2004. The petitioners having joined the new assignments are till day performing their duties as such. The incessant employment of the petitioners cannot after the lapse of 12 years be termed "temporary".
It will be deemed to have attained the permanence and regularization. The respondent/board (BI&SE) through notification dated 28-9-2006 has accorded sanction of BS-11 to a Data Entry Operator without laying the condition of any added qualification. The petitioners who being the citizens of Pakistan have been guaranteed the protection of law, claim the inalienable right to be treated in accordance with law and their equality before law. BS-11 cannot be kept at bay from them. Even if there exists the relationship of master and servant between the respondents and them. These petitions are accepted. The respondents are directed to treat the petitioners to be serving in BS-11 w,e,f, 28-9-2006, the date of issuance of Notification No,ASF (Admn.I)431/06.