1. MUHAMMAD AFZAL ZULLAH, C.J.--This appeal through leave of the Court has arisen out of a service matter in relation to the N.-W.F.P. Board of Technical Education. Leave to appeal was granted against the acceptance by the High Court of the Constitutional (Writ) Petition filed by Mr.Abdul Salam respondent herein who was serving as Secretary to the Board in Grade 18; when his post was upgraded to BPS-19 and he became the direct first beneficiary thereof.
2. ' This having been done by the Board of Technical Education after the upgradation/promotion of the respondent the case was sent to the Controlling Authority; namely, the Governor of the Province or his nominee for approval under section 15 of the N.-W.F.P. Board of Technical Education Ordinance, 1972. The Controlling Authority refused to accord the approval. The Notification dated 14-9-1985 issued by the Government in this behalf declared the promotion of the respondent from Grade-18 to Grade-19 null and void and further directed immediate refund of the excess amount received by him as pay and allowances on the basis of the order, which was declared as null and void.
3. ' The High Court allowed the respondents writ petition and held as follows:-- "There is no doubt that section 15 of the N.-W.F.P. Act VI of 1973, provides for the appointment of the Secretary and the Controller of Examination by the Board with the approval of the Controlling Authority but the fact remains that under section 10 of the said Act, the Board is empowered to determine the conditions of service of an employee. The Board is also exclusively responsible to regulate an decide all the administrative matters including the creation of a post The grant of BPS- 19 was a matter of promotion of the petitioner from BPS-18 to BPS-19 which was done by an office order dated 28-5-85 b the Board itself, after deliberating the same in its general meeting held on 18-5-1985. The petitioner was already holding the post of the Secretary of the Board. Therefore, one has to make a distinction between the appointment of a person as a Secretary under section 15 of the said Act and his promotion from one grade to the other. We, therefore, hold that initially the formal approval by the Controlling Authority was not required in the matter of the petitioner's promotion from Grade-18 to Crade-19. We further find that the petitioner was clothed with vested rights after having been granted 0.19 in the year 1985 and the said rights cannot be taken away from him in the year 1989 by the Controlling Authority."
4. ' Section 15(1) provides that "The Secretary and the Controller of Examination shall be whole-time salaried officers appointed by the Board with the approval of the Controlling Authority". Subsection
(2) provides that the terms and conditions of service of the Secretary and the Controller of Examinations and their powers and duties shall be such as may be "prescribed". In the definition clause it means prescribed by regulations or rules.
5. It is an admitted position that the post of the Secretary, before the Board took the decision to upgrade it, was in BPS-18 . After the order in question the post came in BPS-19 while earlier it was a Grade-18 post. It was a matter of policy as to whether the Secretary's post should be in the lower or in the higher grade. The appointment of a Secretary in Grade-18 is definitely different from appointment of a Secretary in Grade-19. It was not a case of mere promotion of an employee to a higher scale of pay. The post was also being upgraded. In these circumstances there was absolutely no doubt for the Board that its action required approval of the Controlling Authority under section 15(1). The upgradation and appointment of the respondent to the upgraded post by his promotion was in fact sent for approval to the Controlling Authority but it was not approved.
6. This aspect of the case was not taken into account in the impugned judgment by the High Court.
7. The mere fact that the Board had the power to regulate the administrative matters or to appoint staff and determine their duties and conditions of their service would not dilute the effect and command contained in section 15 which on the subject in dispute would control the aforementioned powers of the Board granted to it by virtue of section 10 of the Ordinance.
8. ' Learned counsel for the respondent realising the difficulty in defending the impugned judgment of the High Court tried to rely on subsection (5) of section 12 of the Ordinance. Section 12 reads as follows:--
12. Powers of Controlling Authority.--(1) The Controlling Authority shall have the power to cause an inspection to be made by such person or persons as it may direct, of the offices, activities and funds and of examinations conducted by the Board, and to cause an enquiry to be made in like manner in respect of any matter concerning the Board.
(2) The Controlling Authority shall communicate to the Board the result of such inspection of inquiry and may advise the Board to take such action with him such period as may be specified.
(3) The Board shall report to the Controlling Authority the action as it proposes to take or has taken on such communication,
(4) Where the Board does not, within a reasonable time, take action, it may, after considering any explanation made by the Board, issue such directions as it thinks fit, and the Chairman shall comply with such directions.
(5) If the Controlling Authority is satisfied that any proceeding of the Board or a Committee is not in conformity with this Ordinance, the Controlling Authority, without prejudice to the foregoing provisions of this section, by order in writing, annul such proceedings; provided that before making any such order the Controlling Authority shall, through the Chairman, call upon the Board or the Committee, as the case may be, to show cause why such an order should not be made.
(6) The Controlling Authority may, from time to time, direct the Board to conduct its affairs and to perform its functions in such manner as may be specified.
(7) The Controlling Authority may require the Board to furnish it with--
(i) any return, statement, estimates, statistics or other information regarding any matter under the control of Board; or
(ii) a report on any such matter; or
(iii) a copy of any document in the charge of the Board, and the Chairman shall comply with every such requisition.
(8) The Board shall submit to the Controlling Authority, as soon as possible after the end of every financial year but not later than the 30th September, a report on the conduct of its affairs for that year."
9. This provision projects one element of the control of the affairs of the Board by the Controlling Authority. The present case could also be brought under the ambit of the powers of the Controlling Authority under section 12 but there is no force in the argument of the learned counsel that in fact the Controlling Authority had resorted to the provisions of section 12. What the Controlling Authority did was simply that it did not approve the action of the Board in relation to the upgradation of the post of Secretary and the appointment of the respondent on this upgraded post. It may be mentioned here that on the upgradation of the post it was quite possible that if the Controlling Authority would have approved the upgradation, fresh applications might have been invited from aspiring candidates--either new entrants or those already serving in other departments, or in the same department and the respondent also might in the case, have asked for the appointment to the upgraded post of Secretary--may be by promotion. These features of the present case amongst some other aspects show that it was not a case of the Controlling Authority ordering an inquiry to be made into activities or the conduct of the Board. If the case would have been covered by the general provision of section 12 only then the learned counsel would have been justified in relying on subsection (5) thereof. It, of course, provided that before any action on the basis of an inspection or inquiry held by the Controlling Authority under section 12 of the Ordinance was proposed to be taken, then and only then, before passing an order in that behalf it would have been incumbent upon the Controlling Authority to call upon the Board or its committee concerned as the case may be, through the Chairman of the Board, "to show cause" why proposed action may not be taken or order made in that behalf. Thus the argument of the learned counsel for the respondent fails.
10. ' This appeal, in the light of the foregoing discussion, is allowed and the judgment of the High Court is set aside. However, the learned Additional Advocate-General relying on some of the observations made in The Engineerin-Chief Branch v. Jalaluddin (PLD 1992 SC 207) stated that the direction in the notification impugned before the High Court, for the "refund of the excese amount received by him [the respondent] as pay and allowances on the basis of the order hereby declared as null and void", shall not be enforced. There is no -order as to costs.