' IJAZ UL AHSAN, C.J-.--- Through this single order, I propose to decide W.P.No,26021 of 2015 and W.P.No,34202 of 2015 as common questions of law and facts have been raised in both petitions.
2. The petitioners are engaged in the business of look printing, publishing and textbook development. They have been participating in printing, and development of textbooks for the Punjab Textbook Board.
3. The Punjab Curriculum and Textbook Board ("PCTB") is a statutory body constituted under the Punjab Curriculum and Textbook Board Act, 2015. PCTB is the successor of Punjab Textbook Board and Punjab Curriculum Authority, which had earlier been responsible for making arrangements, production and publication of textbooks for classes I to XII, supplementary reading material relating to textbooks, guide books for teachers, production of reference and research material in respect of problems relating to the schemes of studies and preparation of textbooks and conduct of research in the field of curricula. After promulgation of PCTB Act, 2015 all the said functions have been merged and delegated to PCTB.
4. The main grievance of the petitioners is that PCTB is acting in violation of PCTB Act, 2015 as well as the National Textbook and Learning Material Policy and Plan of Action notified in 2007. Precisely, the contention of the learned counsel for the petitioners is that the PCTB .Has no power to prepare and then select manuscript for textbooks to be used in schools all over the Punjab. According to the learned counsel the manuscripts are required to be invited through open competition and thereafter selected by an Advisory Council/Review Committee of the Board as visualized in the Act.
He maintains that PCTB lacks the power to get the manuscripts prepared in-house by its own staff and then proceed to approve such manuscripts. He argues that there is a clear conflict of interest where the regulator and regulatee are the same person.
5. It is further submitted that the Board does not fall within the definition of a person or agency as defined in PCTB Act, 2015. He points out that in terms of Section 2(d) of the PCTB Act, 2015 Agency means any department or organization or directorate of the Government and includes a corporation or other autonomous or semi-autonomous body set up by the Government. Likewise, the word Board has been defined in section 2(c) as follows:- ""Board" means Punjab Curriculum and Textbook Board established under the Act. "
' Therefore, the learned- counsel maintains that the Board and Agency are two different entities and the Board cannot act as an Agency for the purpose of preparation of manuscripts of textbooks. He submits that the power of PCTB is limited to preparation of schemes of studies, curricula manuscripts of the textbooks and schedules or strategy for its introduction in various classes of an institution. Preparation of schemes does not empower the Board to prepare manuscripts for textbooks.
6. The learned counsel further submits that in terms of National Textbook and Learning Materials Policy and Plan of Action, the Board is merely a regulator and cannot be a market competitor. In this regard, he refers to Section 1.3 of the Policy Statement to argue that the policy was designed to increase the capacity of the publishing industry through better quality textbooks at)affordable prices and other learning materials as enshrined in the objective statement of the policy. He further points out that the aforenoted policy was formulated in the 11th Inter-Provincial Education Minister's Conference and each province is a signatory to the Policy. Therefore, the policy is binding on the provinces notwithstanding the devolution of powers in terms of the 18th Amendment to the Constitution. He refers to an advertisement published by the then Punjab Curriculum Authority for submission of manuscripts for textbooks for various classes. The advertisement is dated 30th May, 2013 which indicates that in the post 18th Amendment period the Provincial Government was following the policy of 2007. He has relied on various notifications issued under the Provincial Government which directly refer to the National Textbook and Learning Materials and Plan of Action. He has also produced notification dated 17.02.2014 issued by the Punjab Curriculum Authority which also relies upon the policy of 2007. He argues that after the 18th Amendment, the Provincial Government has the authority to replace or override the policy. However, the same has not been done. He maintains that in terms of Section 13 of the PCTB Act, 2015 policies of the Provincial Government are binding on the Board. In view of the fact that the policy of 2007 has not been replaced, the same continues to hold the field. Submits that the procedure provided in the PCTB Act and the policy of 2007 has not been followed by the Board insofar as private publishers have been kept out of the process.
7. The learned counsel for the respondent, on the other hand, submits that in terms of PCTB Act, 2015, the Board has the power to develop manuscripts and there is no bar against development of manuscripts by the Board through its own sources. He argues that in terms of Section 9(3) of the PCTB Act, the power of the Board is not limited to preparation and execution of schemes but includes the power to prepare manuscripts.
8. I have heard the learned counsel for the parties and examined the relevant provisions of PCTB Act, 2015. The only question requiring determination by this Court at this stage is whether the Board can develop its own manuscripts for textbooks to be printed and distributed throughout Punjab.
Admittedly, PCTB is a regulator, is charged with the responsibility of choosing between various manuscripts that may be submitted to it for approval pursuant to advertisement published by it as visualized in the National Textbooks and Learning Material Policy and Plan of Action 2007. The respondent has not specifically denied having followed the said policy till recently. Further it has also not been denied that no policy in replacement of the same has been put in place. During the course of hearing of this petition, a notification dated 16.03.2016 was placed on record, which provides for setting up of a Committee to formulate draft rules in terms of PCTB Act, 2015. .It was attempted to be argued that the rule would essentially modify the Policy of 2007 and provide a power to the Board to develop its own manuscripts. The rules when framed and notified cannot go beyond the statute. In any event the rules are yet to he framed and their vires is not under challenge before this Court. Further the Provincial Government has not placed on record any policy that may have replaced the policy of 2007.
9. Perusal of the PCTB Act, 2015 shows that the Board does not, fall within the definition of a person or Agency. In terms of Section 2(d), Agency means any department or organization or directorate of the Government and includes a corporation or other autonomous or semiautonomous body set up by the Government. The word "Board" has been defined separately in Section 2(c) "as the "Board" means Punjab Curriculum and Textbook Board established under this Act." This indicates that the Board and Agency are two different entities visualized by the Act and the Board cannot act as an agency for the purpose of preparation and development of manuscripts of textbooks.
Section 9 of the Act provides the powers and functions of the Board. Section 9(3) elaborately describes the powers and functions of the Board. For ease of reference Section 9(3,) is reproduced below:- '9(3) The Board shall prepare and execute schemes pertaining to any of the following matters:
(a) implementation of the educational policies of the Government in respect of the curricula, textbook manuscripts, development, approval, production and publication of the text-books and supplementary material;
(b) development, implementation, evaluation and updating of curricula; (c ) preparation of schemes of studies curricula, manuscripts of the textbooks and schedules or strategy for its introduction in various classes of an institution;
(d) approval of manuscripts of the textbook and supplementary material produced by a person or an agency before they are prescribed in various classes of an institution;
(e) arrangement for the development, production and publication of textbook and supplementary material relating to the textbooks;
(f) laying down specification to regulate and control production, printing, publication and. Sale of textbooks and other supplementary material;
(g) production of reference and research material relating to the problems of curricula and preparation of textbooks;
(h) regulate and control printing, publication and sale of textbooks and supplementary material;
(i) control of the policy relating to the distribution of text-books and supplementary material, and the appointment of agencies for that purpose;
(i) holding of training courses for the compilers and reviewers of curricula and writers of text- books;
(k) holding workshops and seminars for effective use of text-books and-supplementary materials;
(1) conduct of research in curricula, textbooks and supplementary materials;
(m) exhibitions of textbooks and supplementary materials;
(n) maintenance of a library including mobile library; and
(o) implementation of general policy of the Government relating to performance of its functions. "
Perusal of Section 9(3) shows that much emphasis has been laid on preparation and execution of "schemes" pertaining to the Matters enumerated in subsections (a) to (o). With reference to Section 9(3)(c), it may be stated that the Board has the power to prepare and execute schemes for manuscripts of textbooks and schedule or strategy for introduction in various classes of an institution, Section 9(3)(d) empowers the Board to approve the manuscript of textbooks and supplementary material produced by a person or agency before they are prescribed in various classes of an institution. Section 9(3)(d) gives a clear indication that the manuscripts of textbooks and supplementary material are to be produced by a person or agency (other than the Board) while the Board has the power to approve manuscripts submitted before it. The word "Scheme" has been defined in "Understanding Statutes-Canons of Construction by S.M. Zafar at page 757 as follows:- "The term Scheme is used where, as the name suggests, power is given to make detailed arrangements for some matter considered to be in need of general statutory supervision or administration. "
Seen in light of the above definition Section 9(3) of the PCTB Act empowers the Board to prepare and execute Schemes for implementation of educational policies in respect of curricula, textbook manuscripts, development, approval, production and publication of textbooks and supplementary material etc. The repeated use of the term "Schemes" in the opening line of Section 9(3) as well as Section 9(3)(c) indicates an intent on the part of the law maker to limit the power of the Boaid as a regulatory and supervisory body to make detailed arrangements relating to supervision and administration of matters mentioned in Section 9(3). In the absence of any express distinct and independent power to prepare manuscripts, it is difficult to read such power into the language of the statute.
10. Even otherwise, perusal of the Act of 2015 creates a distinct impression that the Board has been put in the position of a regular and a 'policy maker to provide guidelines, develop, implement, evaluate and update curricula, arrange for development, production and publication of textbooks, lay down specifications to regulate and control production, printing, publication and sale of textbooks, yet not engaged in the process of development of manuscripts, which has been left to be undertaken by persons or agencies other than the Board. The rationale for the same is not hard to understand. Having been put in a position of a regulator, the Board cannot at the same time assume the role of a regulatee. Such course of action would clearly lead to a conflict of interest situation making the Board a judge in its own cause, rendering the entire process non-transparent and placing other competitors who may have submitted manuscripts for approval, at an obvious and unfair disadvantage. This could not be the intent of the law.
11. At this stage, on instructions, the learned counsel for the petitioners submits that in case any department or organization of the Government which falls within the definition of an Agency as defined in Section 2(b) of the PCTB Act, 2015, develops and submits manuscript before the PCTB for approval, the petitioners would not have any objection to the same. He, however, submits that the agency under which the manuscript is prepared, may not be represented in the meeting of the Board of PCTB, when it meets for the purpose of approval of manuscripts of textbooks.
12. On 21.03.2016, the learned counsel for the respondent as well as the learned Addl. Advocate General were asked to obtain instructions from the relevant quarters to make a statement before this Court on the position of the Province of Punjab on the issue and whether the work of development of manuscripts can be assigned to a department of the Government which may develop manuscripts on the basis of schemes and criteria provided by the Board in terms of PCTB Act, 2015 and the rules framed thereunder. The manuscripts so prepared independently can be placed for approval before PCTB in accordance with law.
13. Today the learned counsel for PCTB, the learned Additional 'Advocate General along with Mr. Zubair Khan, Deputy Secretary (Legal) School Education Department, who is also representing the Government of the Punjab and Secretary School Education Department have appeared. On instructions from the concerned Secretary, it is submitted that the Government of Punjab is willing to assign the work of development of manuscripts of textbooks to a wing of the Education Department or any other Agency as defined in Section 2(b) of the Act, 2015. He further submits that the manuscripts of the textbooks so developed in accordance with the schemes and guidelines provided by PCTB shall be submitted for approval along with other manuscripts that may be submitted before PCTB, if permitted by law. The Board shall, thereafter, examine the manuscripts and on completion. Of all requisite processes, scrutiny and evaluation provided under the Act and the rules, choose the best manuscripts for printing as textbooks to be taught in Schools in Punjab.
For avoidance of doubt, it is clarified that the work of development of manuscript may be undertaken by any department, organization, directorate or wing of the Government, which falls within the definition of the "Agency". Such work shall not be carried out by the Board itself, which shall exercise all other powers and functions as provided inter alia in Section 9 of the Act. It is further clarified that when manuscripts are submitted for approval any person who has any nexus with the Agency which has developed the manuscripts, shall not sit in the meeting of the Board of PCTB, if he is a member of the Board.
14. The above arrangement is acceptable to the Petitioners, some of whom are present and are also represented by counsel. The parties hereto shall be bound by the respective statements made by them before this Court, as incorporated above. This petition is accordingly disposed of in the aforenoted terms.