' Writ Petitions Nos. 13069 of 1994, 6229 of 1993, 1239 of 1994, 5186 of 1994, 5361 of 1994, 12954 of 1994, 12984 of 1994, 13119 of 1994, 13142 of 1994, 1892 of 1996 and 9626 of 1996 are being decided by single judgment as they raise common questions of law and the same relief is sought.
2. The relevant facts are that the petitioners are employees of different Boards of Secondary Education or their Associations. The writs are directed against impugned order dated 20-10-1994 whereby implementation of the decision of the Boards to pay three allowances was withheld. The same were admitted to hearing and notices were issued to the respondents, who have appeared and contested the petitions.
3. The learned counsel for the petitioner argued that its members had three disputes regarding--
(i) payment of 35% Medical Allowance on running basic scale;
(ii) payment of house rent at the rate of 50% on the running Basic Pay; and
(iii) payment ,on account of earned leave at the rate of 48 days per annum.
' It was argued that it was resolved in meeting dated 8-9-1994 that the above three demands would be taken up by respective Boards under section 10 (Power of Boards) Act (hereinafter to be referred as Act of 1976) as amended by Act 1985 and 1992. The Chairman of different Boards were directed vide memo, dated 15-9-1994 to take further necessary action. The Lahore Board in pursuance of this issued the Agenda, which was considered, resolutions passed and copy sent to the Government with memo dated 28-9-1994. It was added that the respondent No, 2 through impugned teleprompter message directed that the resolution should not be implemented unless approved/vetted by the Controlling Authority in accordance with the provisions of section 10(4) of Act, 1976. It was argued that not only the Controlling Authority had itself constituted the Committee, which considered the demands but also directed the Board to take decision in respect of three items of dispute vide memo dated 15-9-1994, therefore, resolution was perfectly valid and the impugned order dated 20-10-1994 was illegal and illogical. It was added that in view of the direction the resolution was in conformity with section 10(4) of Act, 1976. It was argued that the matters relating to finance were within the competency of the Board itself as per provisions of Item
(xii) of section 10(2) of Act, 1976 as amended upto-date, therefore, the Government could not interfere with its implementation. It was added that the order has been acted upon and strike called off, therefore, the Government had lost right to repent. In this behalf, the learned counsel has referred to Mukhtar Ahmad and 37 others v. Government of West Pakistan (PLD 1971 SC 846), Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others (PLD 1991 SC 546) and Syed Ali Shah v. Government of Pakistan (1994 CLC 369). It was further argued that the words 'except where the Government otherwise directs' appearing in section 10(4) of Act, 1976 are not of any significance after the direction of the Controlling Authority and in support of this learned counsel for the petitioner has referred to The State of Maharashtra v. Ministerial Services Association, Wardha and others (AIR 1966 SC 625).
4. The learned Additional Advocate-General, on the other hand, argued that it is correct that the employees of the different Boards in Punjab are getting House Rent at the rate of 45%, Medical Allowance at the rate of 35% and 48 days basic salary per annum as leave encashment. These allowances being higher than the corresponding scales available to the Government servants, therefore, they could not be allowed without prior approval of Controlling Authority in view of the provisions of section 10(4) of the Act, 1976. It was argued that it was for this reason that the impugned order was issued. It was maintained that the approval has to be prior in time before the financial benefits could be bestowed on employees of the Boards in Punjab. It was argued that the allowances have been disallowed to the employees of Bahawalpur and D.G. Khan Boards, therefore, this would create a anomalous position if the same were allowed to the petitioners.
5. Ch. Ljaz Ahmad, learned Advocate (now Mr. Justice) for the Board in his usual, candid and frank manner submitted that this is in fact a dispute between the petitioners and Government and precisely the Finance Department. He submitted that it was usual that the employees of the Board would go on strike when the examinations were fast approaching and their presence in the offices was absolutely essential. The employees of the Lahore Board following usual pattern went on strike on 5-9-1994. Respondent No, 2 keeping in view the fact that future education career of thousands of students in Province was at stake, proceeded to constitute a Committee on 7-9-1994. It consisted of the representatives of the Secondary Boards in the Province and Additional Secretaries of Education as well as Finance Departments. The Committee after deliberations resolved in its meeting dated 8-9-1994 that these demands would be taken up by the respective Boards and decided it in accordance with the provisions of Boards Act. This resolution was forwarded by the Section Officer, Education Department to the Boards, which were directed to take necessary action under intimation to the Education Department. It was argued that as per Annexure A' with the petition it was just an advice under section 10(4) of Act 1976. The officers of the Board are defined in section 13 of the Ordinance, 1976 and the term other officers' has been defined in section 16 thereof while terms and conditions were contained in the Service Realizations. The allowances in dispute were only for the second category. It was argued that the final orders have not yet been passed, therefore, these writ petitions were pre-mature.
' Ch. Ljaz Ahmad, learned Advocate in order to interpret the term 'Controlling Authority' referred to the provisions of Punjab Boards of Intermediate and Secondary Education Act, 1976, West Pakistan Adoption Ordinance III of 1956 then Ordinance XIII of 1976, Ordinance XXXIII of 1985, Act X of 1992 whereby different provisions of Act 1985 were amended. The learned counsel thereafter, referred to Articles 129 and 139 of Constitution of Islamic Republic of Pakistan, 1973. The learned counsel in support of his arguments also referred to Khawaj Din v. Rationing Controller Food, Faisalabad and 2 others (PLD 1980 Lahore 15).
6. Syed Niaz Ali Shah, learned Additional Advocate-General added that the employees of the Board were already enjoying these allowances but the dispute was two-fold: ' Firstly; they claimed payment of these allowances on running pay scale while they were entitled on the basic pay scales; and ' Secondly; the same have been granted without the approval of the Controlling Authority, therefore, liable to be withdrawn.
' It was argued that the Secretary never granted approval. It was added that under the present Ordinance Secretary was the Controlling Authority.
7. Ch. Khurshid Ahmad, Advocate for the petitioner while summing up the arguments submitted that it is clear from Annexures 'B and C' with the writ petition that the Controlling Authority has given the necessary direction. It was argued that the exception would come into play only when some financial benefit is being granted to the employees of the Board which is on the higher side then admissible to the Government employees of the corresponding category. It was added that the Board is self-sufficient in funds and the benefits were allowed keeping in view its financial position.
8. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedents. Before proceeding any further, I would like to record basic facts about the following three allowances claimed by the petitioner:-
(i) House Rent: The petitioners are claiming 50% of the basic pay scale while the Government servants are allowed 45% on the basic scale;
(ii) Medical Allowance: The petitioners claimed at the rate of 35% on the running pay; and
(iii) Leave Encashment: The employees of the Boards are allowed leave encashment for 48 days per annum on the basic scale. They are claiming the same on the running pay as against this the Government employees are in all allowed 180 days leave encashment on retirement minus allowances. The Government servants are not fortunate to enjoy leave encashment on yearly basis.
' This recapitulation was essential because during the arguments on different dates divergent claims were made but the above position has been confirmed by all the parties.
9. The Boards almost financially independent but subject to the condition under section 10 (4) of Act, 1976, which reads as under:- "(4) Except where the controlling Authority directs otherwise, a Board shall not make any rules or allow any concession, benefit, privilege or alliance to any person which is not in conformity with the rules enforced by the Government on similar matters."
It is clear from the above provision that the Board is at liberty to make any rule or allow concession, benefit, privilege or allowance, which are the in conformity with the rules made by the Government on similar matters. In case the Board employees were to be granted any financial benefit over and above the benefit available to the Government servants in similar matter then this was to be done under the direction of the Controlling Authority. The arguments on behalf of the petitioner was that this pre-condition had been complied with because the Committee was constituted to look into the demands of the employees of the Boards, which held its meeting on 8-9-1994 and made its recommendations, which were sent to the competent Authority, who in turn directed the Chairman of the respective Boards to take further necessary action accordingly. In the alternate it was argued that no direction of the competent Authority was required as for medical allowance was concerned because the rules governing the grant of medical allowance to the employees of the Boards and Government servants were quite different and not similar.
10. The main question, therefore, for determination is whether the provision of subsection (4) of section 10 of the Act of 1976 have been complied with or not? The Secretary is admittedly the competent Authority. The demands of the employees were referred to the Committee, which resolved that the demands put forth by the employee's representatives would be taken up by the Boards and would be decided according to the provisions of Boards Act. It seems that the minutes of meeting were sent to the Education Department and Section Officer ((Boards A.III) sent the copies thereof alongwith his covering letter dated 15-9-1994 to the Chairmen of the Boards in the Province. The same read as under:-- "Enclosed please find copy of the minutes on the subject noted above.
2. You are directed to take further necessary action accordingly under intimation to this Department."
Copies of this letter were sent to P.Ss. To the Education Secretary, Finance Secretary, Education Minister etc. It is clear from the text of this letter and the copies forwarded that this was done in routine and any direction under section 10(4) of Act, 1976 as amended up to date was not given by the competent Authority. Therefore, the Boards could not have fixed the house rent at the rate of 50% on the basic scale. Similarly, leave encashment could not be made on the basis of running pay because according to Government Notification dated 4-6-1984 senior post allowance formed part of the pay for the purposes of encashment and no other allowance could be included in the pay for this purpose. While as far the medical allowance was concerned the basis being different, as observed already, therefore, this could be granted without the direction of the competent Authority.
11. I would be failing my duty in not pointing out that the Government servants sent on deputation to hold the pivotal positions of Chairmen etc. In the Boards by and large accepted the demands of the employees of the Boards in a very generous manner because they thought that it was also beneficial and suited them. It is made clear that legally they were not entitled to benefits for the simple reason that they were Government servants and not employed, appointed or holding office under the Service Regulations of the employees of the Board's. Therefore, not entitled to any concession, benefit, privilege or allowance under these rules or rules meant for the employees of the Boards. The Government servants are entitled to the benefit as per terms and conditions of deputation and nothing beyond that.
12. The upshot of the above discussion is that this writ petition is partially allowed. The result is that the grant of medical allowance at the rate of 35% of running pay is held valid while the increase in the house rent and leave encashment rules is adjudged illegal.
' There is no order as to costs.