The petitioner namely Javed Iqbal is an employee of The Board of Intermediate & Secondary Education Rawalpindi (hereinafter referred as "Board"), who on account of allegations of misconduct and corruption, was served with a charge sheet under Section 3 of The Punjab Employees Efficiency, Discipline & Accountability Act, 2006 (hereinafter referred as "PEDA Act") vide order dated 25 March, 2016 The petitioner is facing departmental inquiry in pursuance to the charge sheet. On account of pending inquiry, the petitioner was not considered for further promotion in B.S-17 by the Board of Governors in the light of proceedings held on 30 May, 2016. By way of this petition, the petitioner calls in question order dated 25 March, 2016 as well as order dated 30 May, 2016.
2. The instant petition is resisted by the respondents on the ground that rules of the "Board" are non-statutory and the petitioner , on account of his misconduct and corruption, is not entitled to promotion.
3. Learned counsel for the petitioner , while advancing his arguments in support of this petition, at the very outset submitted that he would not like to press this petition to the extent of order dated 25 March, 2016 as the departmental proceedings are under way. He however added that petitioner has been discriminated as in similar circumstances, one of the employees namely Abdul Rauf has been awarded promotion conditionally . Added that act of respondents is against the mandate of Article 25 of The Constitution of Islamic Republic of Pakistan, 1973.
Learned counsel contended that no law authorizes the respondents to withhold the promotion of the petitioner on the ground of pending inquiry . Learned counsel on the strength of judgment passed in "HAROON-UR-RASHID v.
LAHORE DEVELOPMENT AUTHORITY and others" (2016 SCMR 931) and "MUHAMMAD RAFI and another v.
FEDERA TION OF PAKIST AN and others" (2016 SCMR 2146 ) submitted that instant petition is maintainable.
4. Conversely , learned legal advisor for the respondents' Board submitted that services of the petitioner are to be regulated by non-statutory rules and this petition is not competent. He added that there are charges of misconduct and corruption against the petitioner and he is not entitled for further promotion. In support of his contentions, learned counsel placed reliance on "ABDUL RAUF v. GOVERNMENT OF THE PUNJAB through Secretary (Food),th th th th th Civil Secretariat, Lahore and another" (2016 PLC (C.S.) 1099 ) and "ABDUL SAMAD and others v. FEDERA TION OF PAKIST AN and others" (2002 SCMR 71 ).
5. After having heard learned counsels for both the sides at considerable length, I have perused the record.
6. First of all, I would like to deal with the objection raised by the learned Legal Advisor for respondents with regard to maintainability of instant petition. The "Board" is admittedly the creation of Punjab Boards of Intermediate & Secondary Education Act, 1976 (hereinafter referred as "The Act, 1976"). By virtue of Section 3(2) of the Act ibid, the "Board" is a body corporate, which can sue and be sued. There is no cavil that the regulations governing the employees of the "Board" by their nature are non-statutory which were framed as per mandate of Chapter IX of The Act, 1976.
7. By virtue of clause-I of Chapter IX of "The Act, 1976", the service regulations would become effective from the date of approval of the Controlling Authority . The Controlling Authority is defined in Section 2(f) of "The Act, 1976" as under:- 2 (f) "Controlling Authority" means the Controlling Authority specified in section 1 1; Whereas under Section 11 of the Act, Government shall be the controlling authority of the "Board". It is not in dispute that till yet service regulations are awaiting approval of the controlling authority as per Regulation-I. In the case of "ZIA GHAFOOR PARACHA v. THE CHAIRMAN BOARD OF INTERMEDIA TE AND SECONDAR Y EDUCA TION, RAWALPINDI and others" (2002 PLC (C.S) 1571 ), this Court has already held that employees of the "Board" shall be governed on the principles of master and servant and the constitutional petition is not maintainable. The above referred judgment was further upheld by the Hon'ble Supreme Court of Pakistan in the case reported as "ZIA GHAFOOR PIRACHA v. CHAIRMA N, BOARD OF INTERMEDIA TE AND SECONDAR Y EDUCA TION, RA WALPINDI and others" (2004 SCMR 35 ).
8. Learned counsel for the petitioner though has conceded the status of the regulations of the "Board" being non- statutory but while making reference to Section 3 (2) of "The Act, 1976", submits that being Body Corporate, the respondent "Board" is amenable to constitutional jurisdiction in terms of Article 199 of The Constitution of Islamic Republic of Pakistan, 1973. It is also one of the contentions of learned counsel for the petitioner that the petitioner was proceeded departmentally under the "PEDA Act", thus in the light of principles laid down in "HAROON-UR- RASHID v. LAHORE DEVELOPMENT AUHT ORITY and others" (2016 SCMR 931), this Court is vested with the jurisdiction to examine the proprietary of the impugned action taken against the petitioner under the said Act.
Apparently this arguments of learned counsel for the petitioner on the mandate of Article 199 ibid, has reasonable force and cannot be ignored lightly . However , in order to properly comprehend and appreciate the proposition in hand, it would be advantageous to have a glimpse of events relating to the exercise of constitutional jurisdiction with regard to the employees of authorities, statutory bodies and corporations etc. In this regard, law has taken radical change in the year 1997 when Section 2-A was inserted in the Service Tribunal Act, 1973 by virtue of Service Tribunal (Amendment) Act No.XVII of 1997 which reads as under: - "[2-A. Service under certain corporations, etc. to be service of Pakistan.- Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this act."
In view of above, employees of all the authorities, corporations, bodies or organizations established by or under a Federal Law or which are owned or controlled by the Federal Gover nment or in which the Federal Government has a controlling share or interest were declared similar and akin to the civil servants for the purposes of said Act. However , after insertion of Section 2-A in The Service Tribunal Act, 1973, vires of said provision came under consideration before the Hon'ble Supreme Court of Pakistan in the case of "MUHAMMAD MUBEEN-US-SALAM v. FEDERA TION OF PAKIST AN through Secretary , Ministry of Defence and others" (PLD 2006 Supreme Court 602) and the Hon'ble Apex Court, while declaring that Section 2-A of The Service Tribunal Act, 1973 is, partially , ultra vires of the Articles 240 and 260 of the Constitution defined certain categories of the employees in the following manner: -
108. The threadbare discussion on the subject persuades us to hold:---
(1) Section 2-A of the STA, 1973 is, partially , ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under Section (2)(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
(2) Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under Section 2(1) (b) of the CSA, 1973.
(3) The cases of the employees under Section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy ."
9. The matter did not end here and again in the case of "MUHAMMAD IDREES v. AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and others" (PLD 2007 Supreme Court 681), the Hon'ble Supreme Court further outlined the scope of Section 2-A of The Service Tribunal Act, 1973. It was thereafter that in the case of "EXECUTIVE COUNCIL, ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD through Chairman and another v.
M. TUFAIL HASHMI" (2010 SCMR 1484), the Hon'ble Supreme Court of Pakistan held that person in 'government service' as defined in section 2(c) and (d) of The Removal from Service (Special Powers) Ordinance, 2000 can be subjected to The Removal from Service (Special Powers) Ordinance, 2000 but keeping in view the definition of the 'civil servant' under the Civil Servant Act, 1973 as well as the dictum laid down in Muhammad Mubeen-us - Salam's case (ibid), only those employees can approach the Service Tribunal, who fall within the definition of civil servant, holding posts in connection with the affairs of Federation. Remaining categories of employees, including the contractual ones, if they are aggrieved of any adverse action, the Service Tribunal is not the appropriate forum for redressal of their grievance. Later on, Section 2-A was omitted by The Service Tribunal (Amendment) Act No.II of 2010.
10. In the recent judgment by a learned Full Bench of the Hon'ble Supreme Court of Pakistan, in the case of "MUHAMMAD ZAMAN and others v. GOVERNMENT OF PAKIST AN through Secretary , Finance Division (Regulation Wing), Islamabad and others" (2017 SCMR 571), a criteria has been laid down by the Hon'ble Supreme Court of Pakistan in order to determine the status of the rules being statutory or otherwise, which to my mind resolves the whole issue. The relevant extract from the same is reproduced below: -
6. Like many other statutory bodies, SBP has also been given the power to frame regulations. In this regard section 354 of the Act is relevant which reads as follow: - "54. Powers of the Central Board to make regulations.
(1) The Central Board may make regulations consistent with this Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act: Provided that the terms and conditions of service of Governor and Deputy Governor shall be determined by the Federal Government.
(2) In particular and without prejudice to the generality of the foregoing provision, such regulations may provide for all or any of the following matters, namely: -
(j) recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank's contribution, for the officers and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans and advances, their betterment and uplift; (3)
According to section 54(1) of the Act, the Board is empowered to make regulations consistent with the Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of the Act. It is pertinent to mention that previously SBP could only make regulations with the approval of the Federal Government, however by virtue of Act II of 1994, the words "subject to the approval of the Federal Government" were omitted. We are of the view that this omission is significant, conferring greater autonomy on the Board as the Federal Government was removed from the regulation-making process, and full authority came to vest in the Board to make such regulations. Indeed this was the view of two-member bench of this Court in the judgment reported as Chief Manager, State Bank of Pakistan, Lahore and another v.
Muhammad Shafi (2010 SCMR 1994) wherein, while considering whether the State Bank of Pakistan Staff Regulations, 1999 were statutory or non-statutory, it was held as follows: - "7. The words "subject to the approval of the Federal Government" were omitted vide Act II of 1994. The regulations were framed under section 56 in the year, 1999 as is evident from the source on the basis of which the said regulations were framed which is to the following effect: - "In exercise of the powers conferred by section 54 of the State Bank of Pakistan Act, 1956 (XXXIII of 1956) the Central Board of Directors, hereby makes the following regulations, to define the conditions of service of the employees of the Bank."
8. The omission of the aforesaid words subject to the approval from section 54 is meaningful. Rules framed by the Central Board of Directors which does not require approval of the Government, therefore aforesaid regulations may be termed as internal instructions or domestic rules/regulations having no status of statutory rules/regulations as law laid down by this Court in various pronouncements..."
We are of the opinion that the above view applies to and is correct vis-a-viz the Regulations in the instant matter as well. Furthermore, as matters stand (since the omission by Act II of 1994), and as mentioned above, the regulation- making power lies solely in the hands of the Board with no intervention or approval of the Federal Government, and this reflects the intention of the Legislature. In this context, as highlighted above, even the structure of the Board as provided for in the Act renders it autonomous, with the Members, save for the Secretary, Finance Division, Government of Pakistan, being private individuals, independent from the Federal Government. In fact, where the legislature wanted the intervention of the Federal Government, it has specifically provided for the same, and in this regard the proviso to section 54(1) of the Act is relevant which states that "the terms and conditions of service of Governor and Deputy Governor shall be determined by the Federal Government", clearly suggesting that the Legislature's intention was to exclusively clothe SBP with the power to frame regulations to carry out the objects and purpose of the Act. Furthermore, section 46B(2) of the Act [inserted by the State Bank of Pakistan (Amendment) Act, 1997 (Act No.XIII of 1997)], provides that "the Bank, the members of the Board or the staff of the Bank, shall not take instructions from any other person or entity, including the government or quasi- government entities. The autonomy of the Bank shall be respected at all times and no person or entity shall seek to influence the members of the Board and Monetary Policy Committee or the staff of the Bank in the performances of their functions or interfere in the activities of the Bank." It may be added that to give maximum autonomy to SBP, section 52(1) of the Act which empowered the Federal Government to supersede the Board and entrust the general superintendence and direction of the affairs of SBP to such agency as it (Federal Government) may determine was omitted by the State Bank of Pakistan (Amendment) Act, 2012 (Act No.IX of 2012 dated 13.3.2012). All the above aspects point towards the growing autonomy of SBP .
7. According to the judgment delivered in Civil Appeal No.654/2010 etc. titled Shafique Ahmed Khan, etc. v.
NESCOM through its Chairman, Islamabad, etc. the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it is the nature and efficacy of such rules/regulations. It has to be seen whether the rules/regulations in question deal with instructions for internal control or management, or they are broader than and are complementary to the parent statute in matters of crucial importance. The former are non-statutory whereas the latter are statutory. In the case before us, the Regulations were made pursuant to section 54(1) of the Act and section 54 (2) thereof goes on to provide the particular matters for which the Board can frame regulations [while saving the generality of the power under section 54(1) of the Act]. Out of all the matters listed in section 54(2) of the Act, clause (j) is the most relevant which pertains to the "recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank's contribution, for the officers and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans and advances, their betterment and uplift". A perusal of the Regulations suggests that they relate to pension and gratuity matters of the employees of SBP and therefore it can be said that the ambit of such Regulations is not broader but narrower than the parent statute, i.e. the Act. Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non- statutory . Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing their writ petition.
11. After having an overview of the law and principles laid down by the Hon'ble Supreme Court of Pakistan from time to time, I am of the considered view that this petition is not maintainable in view of law laid down in MUHAMMAD ZAMAN and others v. GOVERNMENT OF PAKIST AN through Secretary , Finance Division (Regulation W ing), Islamabad and others" (Supra) . Resultantly , the same is dismissed in limine .