' GULZAR AHMED, J.---The appellant has assailed the order dated 6-3-2012 of learned Division Bench of the Sindh High Court, Circuit Court, Hyderabad, by which Constitutional Petition No, D-677 of 2011, filed by the respondent, was allowed directing that respondent be paid salary that of BPS-16 from 4-5-2010 onwards.
2. Facts of the matter are that Sindhi Adbi Board Jamshoro, (the Board), appellant herein, was established pursuant to Resolution passed by the Government of Sindh and the Board was registered as society under the Societies Registration Act XI of 1860. Vide office order dated 18-5- 2009 of the Board, the respondent was appointed as Calligrapher BPS-16 on contract for a period of six months. Through another office order of the Board dated 11-3-2010, the contract period of respondent was extended for .Three months. Vide another office order of the Board dated 31-3- 2010, the service of respondent was regularized as In charge Proof Reading in BPS-9 with immediate effect. The respondent seems to have filed an Appeal dated 8-4-2010 before the Board for his regularization in BPS-16. The Board prepared an office note dated 3-7-2010 and proposed that an urgent meeting of the confirmation and Selection Committee of the Board be summoned to decide the case of the employee. On this office note, the Chairman Board passed order dated 4- 5-2010 allowing the respondent, the post of BPS-16. This order of the Chairman of the Board was conveyed by the Board vide its letter dated 27-5-2010 to the appellant, whereby he was informed that post of In charge Editing and Proof Reading has been upgraded to BPS-16 with effect from 4- 5-2010. Through further office note dated 2-7-2010 signed by Finance Advisor, Vice Chairman, Administrator, Secretary and Chairman DPC SAB, it was pointed out that respondent was initially appointed on contract, basis as In charge Proof Reader but was allowed to work as Calligrapher and when his case for regularization was referred, he was regularized in BPS-9, against which he approached to the then Minister for Education/Chairman Sindhi Adbi Board and under the Minister's order he was given appointment to the post of BPS-16. The Finance Committee of the Board did not agree with his up gradation and proposed that the case of up gradation of the respondent be placed before the Board of Governors for further and proper decision. It seems that the salary for the post BPS-16 .Was not paid to the respondent who filed the above Constitutional Petition in which the impugned order has been passed.
3. Leave to appeal was granted vide order dated 14-5-2013 to consider as to whether the Sindh Adbi Board of which the respondent claims himself to be an employee was made party in the Constitutional petition and whether Sindhi Adbi Board, Jamshoro has statutory rules.'
4. Learned counsel for the appellant at the outset, has contended that power to make appointment/regularization is vested in the Board and Selection Committee of the Board, after considering the suitability and fitness of respondent, has appointed and regularized him as in charge Proof Reader in BPS-9. He contended that after such appointment/regularization of respondent was made, he made an application to the then Minister of Education/Chairman of the Board for his appointment in BPS-16. He contended that Minister of Education/Chairman of the Board has no authority under the constitution of the Board to appoint/regularize the respondent in BPS-16 as such power is only vested in the Board which comprises of 15 members as per its constitution. He contended that order of Minister of Education/Chairman of the Board was thus not legally tenable and learned High Court was not justified in allowing the petition of the respondent.
5. On the other hand, the learned counsel for respondent contended that respondent was initially appointed on contract as Calligrapher in BPS-16 and that he could not have been demoted to the post of BPS-9 without providing him opportunity of being heard and, therefore, the impugned order, was fully justifiable.
6. We have considered the submission of learned counsel for the parties and have perused the record.
7. There is no dispute that on the representation of respondent, the then Minister of Education/Chairman of the Board has ordered appointment/regularization of the respondent in the post of BPS-16. We have asked the learned counsel for the respondent to show as to whether Minister of Education/Chairman of the Board under the constitution possesses power to make appointment/regularization of Board's employees, learned counsel frankly stated that under the constitution of the Board, no such power is vested in the Minister/Chairman of the Board.
8. Clause 5 of constitution of the Board specifically provides that Board shall appoint such officers and servant as it deem necessary to carry out the purpose of its constitution. Clause 2 of the constitution provides for composition of Board which comprises of eight members nominated by the Government, two Ex-Officio Members, Two Members nominated by University of Sindh and three members nominated by outgoing Board. We were not shown any provision in the constitution of the Board, which empowers the Minister/Chairman of the Board to make appointment/regularization of the employee of the Board. In such view of the matter, where the constitution of the Board itself provides the body, who will make appointment/regularization of its employees, the appointment/regularization has to be made by such body and by no one else. This is also necessary to ensure that there are no nepotisms or favoritisms or arbitrary decisions in making of appointment/ regularization of the employees of the Board. Thus, the only conclusion that can be reached is that the Minister/Chairman of the Board was not competent to appoint/regularize the service of respondent in BPS-16 and his order dated 4-5-2010 in this respect was without lawful authority and of no legal effect.
9. Learned High Court in the impugned order has apparently omitted to dilate upon this very crucial question going to very root of the matter and thus passed the impugned order which is not tenable in law.
10. At the conclusion of hearing, the following short was passed today:-- "For reasons to follow later, after hearing the arguments of both the learned ASCs for the parties, this appeal is allowed, impugned judgment is set aside however, with directions that appellant Board shall examine the grievance of the respondent regarding his appointment and confirmation in BS-9 and decide the same within three months. We expect that constitution of the Board will be finalized by the Government of Sindh within thirty days. A copy of this order shall be sent to the Secretary, Education and Literacy, Government of Sindh for compliance."
11. Above are the reasons for the short order.