ROOH-UL-AMIN KHAN, J:- By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution" ), Professor Rehmatullah Khan, (presen tly posted as Principal Post-graduate College Dargai BPS.20), the petitioner , seeks issuance of an appropriate writ to the effect that revised summary , approved by the Chief Minister , on the recommendations of the Minister for Education Khyber Pakhtunkhwa, and consequential Notification dated 30.05.2017, issued in light thereof, whereby petitioner 's appointment/nomination as a Chairman Board of Intermediate & Secondary Education ("BISE"), Kohat has been re-called, being based on mala fide, be declared as illegal, unlawful and without lawful authority and that respondents may be directed to issue his appointment order as a Chairman BISE , Kohat, with all back benefits.
2. Petitioner asserts that names of some 73 Officers, including him and respondent No.5 Mr. Abdur Raqeeb, were requisitioned by the Provincial Government for the purpose of selection amongst them against the positions of Chairman BISEs Peshawar, Abbottabad, Kohat, D.I. Khan, Swat and Mardan, on deputation for a period of two years. Out of them, sixteen Officers were short-listed. Petitioner amongst three candidates was recommended as a Chairman BISE, Mardan and respondent No.5, as a Chairman BISE, Swat. In the said summary, Chairmen for the remaining above named BISEs of the Province were also recommended. A summary in this regard, forwarded to the Controlling Authority i.e. the Chief Minister Khyber Pakhtunkhwa, was duly approved. However, on refusal of Mr. Muhammad Zaman, nominated as a Chairman BISE, Kohat, and non-availability of a suitable candidate as a Chairman for BISE, Swat, another summary was forwarded to Controlling Authority. In the subsequent summary, the petitioner was recommended as a Chairman BISE, Kohat, whereas, one Mr. Tasbee Ullah, as a Chairman BISE, Swat. On approval of the said subsequent summary, Notification of Mr. Tasbee ullah, as a Chairman BISE, Swat, was issued. However, Minister for Elementary & Secondary Education, Khyber Pakhtunkhwa, forwarded a note/recommendation to the Controlling Authority/the Chief Minister, for review of the subsequent summary to the extent of appointment of the petitioner on the ground that there are certain allegations against the petitioner during the period when he was serving as a Controller of Examination in BISE, Mardan, thus, it was proposed that instead of the petitioner, respondent No.5, be appointed as a Chairman BISE, Kohat. The summary was reviewed, consequently, respondent No.5 was appointed as a Chairman BISE, Kohat. Petitioner asserts that when he came to know about the aforesaid illegal act of the respondents through press/newspaper, he approached the Chief Secretary Khyber Pakhtunkhwa for redressal of his grievance, but with no fruitful result, hence, this writ petition.
3. On preliminary hearing this Court while issuing notice to the respondents, formulated the following question:- "Whether approval of the Competent Authority/the Chief Minister , can be rescinded by a Minister , without adopting the proper procedure as contemplated under the Rules of Business, 1985?
4. Arguments of learned counsel for the parties heard and record perused.
5. It appears from record that in the initial summary one Muhammad Zaman BS-19, CPO Higher Education Department was recommended as a Chairman BISE, Kohat and respondent No.5 Mr. Abdul Raqib BS-19, as a Chairman BISE, Swat. The summary, after approval of the Minister Elementary & Secondary Education and the Chief Secretary Khyber Pakhtunkhwa, was referred for approval to the Chief Minister/Controlling Authority, who approved the same. However, the matter of appointment of Chairman BISE, Swat, was kept pending with a view to be proceeded, later on. In the meantime, Mr. Muhammad Zaman, refused to join the post of Chairman BISE, Kohat, therefore, another summary for appointment of Chairmen BISE Kohat including BISE Swat was processed, wherein, Mr. Tasbee Ullah BS.20 was nominated as a Chairman BISE, Swat and Mr. Rehmat Ullah, the present petitioner, as a Chairman BISE, Kohat. The summary was duly approved by the Chief Minister as a Controlling Authority, however, Mr. Muhammad Atif, the worthy Minister for Elementary & Secondary Education, Khyber Pakhtunkhwa by making certain observations in Para No.14 and 15 of his note, requested the Chief Minister for review of the summary. The aforesaid Paras, read as under:- "Nomination approved for the post of Chairman BISE Swat at serial No.1 in the panel is being duly notified.
However, as regards the nomination approved for the post of Chairman BISE Kohat at serial No.2 in the panel ignoring the serial No.1, it is submitted that during ground check it has transpired that there were complaints against Mr. Rehmat Ullah, Principal Postgraduate College Dargai Malakand, when he was Controller of Examination in BISE Mardan (F/D). Moreover, he is consistently maneuvering politically by influencing the Chief Minister's Secretariat and putting pressure on the undersigned for the same purpose, which is misconduct under Rule 34 of the Govt of Khyber Pakhtunkhwa conduct Rules, 1987. The Administrative department of concerned official is being approached for initiating disciplinary action against him under the Govt of Khyber Pakhtunkhwa Efficiency and Disciplinary Rules, 2011 for his proven misconduct (F/E).
In view of above, it is submitted that approval granted regarding appointment of Chairman BISE Kohat may be reviewed and serial No.1 in the panel Mr. Abdur Raqib, may be appointed as the Chairman BISE Kohat on deputation for a period of two years." (bold and underline supplied for emphasis).
In view of the aforesaid recommendation, the Chief Minister/Controlling Authority , while reviewing the summary , re- called approval of the petitioner as a Chairman BISE, Kohat, and at his place , approved the appointment of respondent No.5 against the said position.
6. The main thrust of the arguments of learned counsel for petitioner was that once the summary in respect of appointment of the petitioner against the position of Chairman BISE, Kohat was approved by the Chief Minister, the Minister for Education, had no authority whatsoever to rescind or resubmit the same to the Chief Minister, for review.
7. In response to the arguments of learned counsel for petitioner, we, deem it appropriate to mention that under the Khyber Pakhtunkhwa Boards of Intermediate and Secondary Education Act, 1990, (amended in 2005), the Chief Minister or his Nominee, is the Controlling Authority, vested with the power to appoint Chairmen of Education Boards of the Province. No doubt, summary in respect of appointment of the petitioner as a Chairman BISE, Kohat was approved by the Chief Minister, but in pursuance of reservations of the Minister it was reconsidered and proposal for appointment of respondent No.5 was recommended against the post of Chairman of BISE, Kohat. The contention of learned counsel for petitioner that once the petitioner was approved for appointment by the Controlling Authority, then the Minister was not competent to re-submit an un- proper and adverse observation to the Chief Minister, has no substance, for the reason, that under the Rules of Business (ibid) Minister is sole competent Authority for framing Policies of department, rather, he is under a laden responsibility to run and dispose of the business of the concerned department. Rule 5 of Rules of Business, provides general procedure for disposal of business, according to which the framing of policy of the department is the responsibility of Minister and the Administrative Secretary of the Department shall advise the Minister in formulation of Policy. Likewise, rule 5(a) of the Rules of Business, provides that the Minister shall submit cases to the Chief Minister as provided by the provision of rule 36. The case submitted under rule 36 to the Chief Minister for approval and order, shall include a self-contained summary stating the relevant facts and points for decision. The summary shall include a specific recommendation of the Minister-in-charge. In case of any deviation from the law or incorrect fact, the Minister-in-charge is not debarred to rectify and bring it into the notice of the Chief Minister/Controlling Authority. The Rules of Business, do not provide any bar for resenting the summary to the Chief Minister for correction and appropriate order. Section 21 of the General Clauses Act, 1897, postulates that an Authority which passes an order is competent to vary, rescind or cancel the same, unless acted upon. So far as the instant case is concerned, summary between Minister and the Chief Minister was in transit and no final order had yet been issued or acted upon, therefore, under the above referred law, the Chief Minister while reviewing his earlier order on subsequent summary re-subm itted by the Minister-in- Charge, has committed no illegality or irregularity . Besides, the correspondence between the Minister and the Chief Minister with regard to appointment of employees on deputation does not create vested right in favour of the recommendee.
8. Another crucial aspect of the case is that, deputation period of respondent No.5 against the position of Chairman BISE Kohat, is being expired in the year 2019, whereas, petitioner is at the verge of his retirement (i.e. to be retired on 22 of April, 2019). Respondent No.5, after appointment as a Chairman BISE, Kohat, has already assumed his duties and the order has been acted upon, consequent whereupon, under section 21 of the General Clauses Act, 1897, valuable rights has accrued in favour of respondent No.5, which under the principle of locus poenitentiae, is protected and cannot be rescinded.
9. Result of the above discussion is that, petitioner has failed to show violation of any law or jurisdictional defect in the impugned order , hence, we are not inclined to issue the writ sought by him. This petition is hereby dismissed.