' SHUJAAT ALI KHAN, J.--- By virtue of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for issuance of a direction to restrain respondents Nos.1 and 2 from withdrawing the promotion order of the petitioners.
2. Briefly, the facts, as spelt out from the instant petition, are that the petitioners have been serving in the Board of Intermediate and Secondary Education Lahore (BISE) and vide Order No,1161-90 dated 10-3-2012 they were promoted as Superintendents under Promotion Policy Rules, 2010, whereas the matter of promotion of respondents Nos.3 to 6 was deferred by the competent authority. After their promotion, the petitioners have already been posted as Superintendents in Matric Tabulation Branch and Audit Branch respectively. Respondents Nos.3 to 6 have already challenged the promotion orders of the petitioners by way of filing of appeals before the competent authority and it has come to knowledge of the petitioners that after the transfer of the former Chairman of B.I.S.E., the Board authorities are going to withdraw the promotion granted to the petitioners by waiving Promotion Policy Rules, 2010, hence this petition.
3. On the preliminary date of hearing, learned counsel for the petitioner sought time to address arguments on the point of maintainability of instant petition before this Court. Further, on 23-5- 2012, the learned Legal Advisor for respondents appeared on court's call and was directed to seek instructions in the matter.
4. Learned counsel for the petitioner contends that though the employees of the B.I.S.E. Are being governed by non-statutory rules yet they are entitled to invoke Constitutional jurisdiction of this court in case of infringement of their fundamental rights. In support of this contention, learned counsel has relied upon "Muhammad Iqbal and others v. Executive District Office (Revenue)
Lodhran (2007 SCMR 682) and an interim order dated 17-6-2011 passed by this court in Writ Petition No,13756 of 2011. Further adds that when the fundamental rights of the citizens are infringed or the impugned orders are result of colourful exercise by the authorities, the jurisdiction vested in this court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, cannot be abridged. To substantiate his contention, learned counsel has relied upon the cases of "Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others (PLD 2009 SC 507), and "Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others" (2004 SCMR 400).
5. Conversely, learned Legal Advisor for B.I.S.E. Submits that since the employees of B.I.S.E. Are not governed by any statutory rules, therefore, they cannot invoke the Constitutional jurisdiction of this court. In this regard he has placed reliance on the cases reported as "Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others" (PLD 2011 SC 132), "Pakistan International Airline Corporation and others v. Tanveer ur Rehman and others" (PLD 2010 SC 676), "Asad Bashir v. Chairman Board of Intermediate and Secondary Education Lahore and others" (2006 PLC (C.S.) 110), "Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education Rawalpindi and others" (2004 SCMR 35) and "Muhammad Anwar Hussain v. Chairman Board of Intermediate and Secondary Education Gujranwala and 2 others" (2000 PLC (C.S.) 678).
6. I have heard the arguments advanced by learned counsel for the parties in support of their respective pleas and have also gone through the documents appended with this petition in addition to the case-law cited at the bar with their able assistance.
7. In response to a query put by this court, learned counsel for the petitioners has frankly conceded that the employees of the B.I.S.E. Are being governed by non-statutory rules. Now the question left for determination by this court is as to whether the employees, who are being governed by non- statutory rules, can invoke the Constitutional jurisdiction of this court or not. In this regard, a reference can safely be made to a very illuminated judgment of the august Supreme Court of Pakistan in the case reported as "Masood Ahmad Bhatti and others v. Federation of Pakistan and others" (2012 SCMR 152) wherein it has inter alia been held as under:--- "18. Learned counsel for. PTCL stressed certain provisions of section 36 of the Re-organization Act to contend that the employment rules applicable to the appellants could not be treated as statutory rules. In particular, he adverted to the proviso to section 36(1) ibid wherein it has been stipulated "that the Federal Government shall guarantee the existing terms and conditions of the service and rights including pensionary benefits" of employees who stood transferred from the Corporation to PTCL. It was submitted on behalf of PTCL that there would be no occasion or necessity for the Federal Government to provide a guarantee as aforesaid, if PTCL stood saddled with the liability of pensionary benefits and the terms and conditions of service of employees transferred to it. From this provision, learned counsel wanted us to infer by implication that PTCL was left free to deal with its employees regardless of any constraints specified in sections 35 and 36 of the Reorganization Act. This contention has no force. The guarantee does not change the nature or status of PTCL as the principal obligant required under law to adhere to the protected terms and conditions of service of transferred employees such as the appellants. The only effect of the guarantee is to ensure that in the event PTCL becomes incapable of fulfilling its obligations as to pensionary or other benefits, for reasons such as bankruptcy etc., the employees do not suffer from such event of default. It is important, at this point, to draw a distinction between employees who stood transferred to PTCL by virtue of section 35 ibid and the Vesting Order, on the one hand and those employees, who joined PTCL after 1-1-1996. The protection under the Federal Government guarantee would not be available to the latter category whose terms and conditions of service would be contractual in nature and would, therefore, be non-statutory."
' Likewise in the case of "Abdul Rashid Khan v. Registrar Baha-ud-Din Zikrya University" (2011 SCMR 944) the august Supreme Court of Pakistan has inter alia held as under:--- "Learned counsel, however, did not dispute that respondent No,5 University has no statutory rules and, thus, in view of the dictum laid down in Muhammad Mubeen-us-Salam and others v.
Federation of Pakistan and others (PLD 2006 SC 602), the petitioner had no remedy before the High Court under Article 199 of Constitution."
' Similarly, in the case of Pakistan Telecommunication Co. Ltd. PLD 2011 SC 132 the said question has been responded in the following words:--- "24. However, this Court, in the case of Principal Cadet Collage Kohat v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the questi6n, as to whether in absence of any breach of statutory provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an employee of a statutory body were governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he was employed, had issued for its internal use, any violation thereof would not, normally, be enforced through a writ petition. Recently, this Court in Tanweer-ur-Rehman's case PLD 2010 SC 676, while dealing with the issue of invoking of jurisdiction of the High Court under Article 199 of the Constitution by the employees of the PIAC, held that although the appellant- Corporation was performing functions in connection with the affairs of the Federation, but since the services of the respondent-employees were governed by the contracts executed by them with the employer, and not by the statutory rules framed under section 30 of the Pakistan International Airlines Corporation Act, 1956 with the prior approval of the Federal Government, therefore, they would be governed by the principle of 'Master and Servant'. On the question whether in absence of any breach of statutory provision, the employees of appellant-Corporation could maintain an action for reinstatement etc., it was observed that the said question needed no further discussion in view of the fact that this Court was not of the opinion that if a Corporation was performing its functions in connection with the affairs of the Federation, the aggrieved persons could approach the High Court by invoking its constitutional jurisdiction. But as far as the cases of the employees regarding their individual grievances were concerned, it was held that they were to be decided on their own merits, namely, if any adverse action was taken by the employer in violation of the statutory rules, only then such action would be amenable to the writ jurisdiction. Therefore, in absence of statutory rules, the principle of 'Master and Servant' would be applicable and such employees would be entitled to seek remedy permissible before the Court of competent jurisdiction. Similarly, in M. Tufail Hashmi 2010 SCMR 1484, after discussing the aforesaid two judgments in detail, it was held that the employees of those organizations, which were performing functions in connection with the affairs of Federation, were eligible to approach the High Court under Article 199 of the Constitution if their services were governed by statutory rules. It was further held that since the employees of AIOU, SME Bank and Pakistan Steel Mills, who approached the Service Tribunal for redressal of their grievances, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of Master and Servant' ."
' Further, while dealing with such question, the apex court in the case of Pakistan International Airlines Corporation and others (supra), has laid law to the following effect:--- "25. Thus, in view of discussion made hereinabove, we are persuaded to hold that although the appellant-Corporation is performing functions in connection with the affairs of the Federation but since the services of the respondent-employees are governed by the contract executed between both the parties, as is evident from the facts narrated hereinabove, and not by the statutory rules framed under section 30 of the Act, 1956 with the prior approval of the Federal Government, therefore, they will be governed by the principle of Master and Servant.
' Even in the matter of Zia Ghafoor Paracha (supra) the apex court of the country has held that:--- "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 or 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 leave refused,"
A bare perusal of the afore-quoted extracts from the judgments of the august Supreme Court of Pakistan, it has been established by now that the employees of an institution, being governed by non-statutory rules, are not competent to file Constitutional petition before this court regarding redressal of their grievance qua terms and conditions of their service.
' Insofar the case-law cited by learned counsel for the petitioner is concerned, I am of the view that the same cannot be applied in the instant case for the reason that the point involved in the case of Muhammad Iqbal and others (supra) was qua the jurisdiction of this court in the matters of promotion of a civil servant whereas according to the petitioners themselves they do not fall within the definition of civil servants, therefore, the same is not applicable to their case. Even otherwise in presence of the contrary verdict of the Hon' ble Supreme Court which also is later in time, the said judgment is of no help to the petitioners. Insofar as the case of Human Rights Commission of Pakistan (supra) is concerned the same is polls apart from the facts of the present case. So far as the case of Farzand Raza Naqvi (supra) is concerned, the question involved in that case was that the Constitutional jurisdiction of this court cannot be abridged on the ground that alternate remedy of appeal or revision was available but the same could not be availed due to some reasons.
As far as the interim order passed by this court in Writ Petition No,13756 of 2011 is concerned, suffice it to observe with due respect to the learned bench who passed the said order, that under Article 189 of Constitution of Islamic Republic of Pakistan, 1973, the verdict of the Supreme Court of Pakistan is binding on all the organs of the State, including the subordinate courts. Thus, in compliance of the dictum laid down in the cases mentioned in para 7 ante, I am not persuaded by the interim order passed by this court in Writ Petition No,13756 of 2011.
For what has been discussed above, I am of the view that since the employees of the BISE are being governed by non-statutory rules, therefore, they are not entitled to invoke the Constitutional jurisdiction of this court for redressal of their grievances qua terms and conditions of their service.
Consequently, this petition is dismissed being not maintainable without commenting on the merits of the case lest it may prejudice the case of either party.