' MALIK MUHAMMAD QAYYUM, J.---This judgment shall dispose of Intra-Court Appeals Nos. 551, 552, 553, 554, 561, 562, 564, 747, 787 and 823 of 1997 all of which involve the same controversy.
2. The appellants are employees of the various Boards of Intermediate and Secondary Education set up under the Board of Intermediate and Secondary Education Act, 1976. The question of grant of certain benefits came up for consideration before the Government on 7-9-1994. The Secretary, Education constituted a committee comprising of Additional Secretary, Education Department, Additional Secretary, Finance and Chairman of the Board of Intermediate and Secondary Education, Lahore and Rawalpindi. The committee in its meeting held on 8-9-1994 decided that the demands of the employees for grant of 35% medical allowance on running pay scale; 60% house rent allowance on the basic pay and leave encashment including all allowances except conveyance allowance should be decided by the Boards being the competent Authority under section 10 of the Board of Intermediate and Secondary Education Act, 1976 as amended in 1985. The decision of the committee was conveyed by the Education Department to eight Boards functioning in the Province of Punjab with a direction to take necessary action under intimation to the Department.
3. It is common ground between the parties that subsequently the Boards considered the demand and accepted the same. However, the Government raised an objection that no such decision could be taken unless approved or vetted by the controlling authority viz. The Government under the Board of Intermediate and Secondary Education Act, 1976 as amended. The appellants challenged this decision of the Government by filing the Constitutional petitions out of which these appeals have arisen.
4. The learned Single Judge on 16-6-1997 partially allowed the Constitutional petitions and held the appellants entitled to Medical Allowance at the rate of 35% of the running basic pay. Their other two claims for payment of house rent at the rate of 60% of basic pay and the leave encashment including all allowances except conveyance allowance were disallowed.
5. We have heard Chaudhry Khurshid Ahmad and Mr. Noor Muhammad Awan, Advocates who have appeared on behalf of the appellants in Intra-Court Appeals Nos. 551, 552, 553, 554, 561, 562, 564, 747 and 823 of 1997. Their contention is that the Government having itself directed and authorized the Boards to take their own decisions on the demands of the employees could not have subsequently objected to their authority to decide the matter. They have relied upon section 10(4) of the Act in support of this submission.
6. Sh. Shahid Waheed, Advocate appearing on behalf of the Board of Intermediate and Secondary Education, Lahore and Gujranwala has pointed out that the Boards have also filed Intra-Court Appeals Nos. 787 of 1997 and 1810 of 1997 which seek expungment of remarks made by learned Single Judge in para. 11 of his impugned judgment against the Chairman, Controller and Secretary of the Boards. He has also defended the impugned judgment on merits.
7. Section 10(4) of the Board of Intermediate and Secondary Education Act, 1976 as amended reads as under:--
10. Powers of the Board.-- (1)
(2)
(3)
(4) Except where the controlling Authority directs otherwise, a Board shall not make any rules or allow any concession, benefit, privilege or allowance to any person which is not in conformity with the rules enforced by the Government on similar matters.
8. The emphasis of the learned counsel for the appellants in support of this appeal is on the words appearing in subsection (4) of section 10 "except where the controlling Authority directs otherwise".
In his submission the Board is competent to make any rule or allow any concession, benefit, privilege or allowance to any person unless it has been prohibited from doing so by the controlling Authority. Learned counsel explains that in the present case not only that there was no embargo placed by the Government on the powers of the Board but the Government itself has directed the Board to take its own decision in the meeting held on 8-9-1994 of the committee which has been constituted by the Government whose decision was conveyed to the Chairman of the Board vide letter dated 15-9-1994 with a direction that the further necessary action be taken under intimation to the Education Department.
9. There is considerable merit in these contentions. Section 10(4) of the Board of Intermediate and Secondary Education Act, 1976 allows the Board to allow any concession to a person or to make rules except where there is a specific prohibition.
10. Learned counsel for the appellants pointed out that so far as the house rent is concerned by Notification No,AB-III-3-3/81, dated 12-9-1991 issued by the Finance Department of the Government of Punjab in sub-para. (b) the Government had directed that the house rent allowance be determined on the basis of minimum of the pay scale and shall not exceed 60% of that minimum and where the house rent allowance is determined on the basis of basic pay, the revised rate of house rent allowance shall not exceed 55% of the basic pay. In the present case, as has been pointed out by the learned counsel the Board itself has decided that the house rent be paid at the rate of 55% of the basic pay scale. This decision of the Board being in conformity with the rules of the Government no approval of the controlling Authority was necessary. It is also to be seen that the Government itself on 8-9-1994 decided that the various Boards themselves took the decision on the demand put forward by the employees it could not, therefore, subsequently turn around and proceed to nullify the decision taken by the Boards.
11. The next question is relating to encashment of earned leave of 48 days per year except the conveyance allowance. In this behalf learned counsel for the appellants has drawn the attention of this Court to the letter of the Government dated 29-9-1991 by which the Boards were authorized to allow encashment of the earned leave to the employees of all kinds of Boards of Intermediate and Secondary Education in Punjab with immediate effect.
12. Thus claim was refused by the learned Single Judge who held that the Government by its letter dated 4-6-1984 refused to allow encashment of leave. Unfortunately, however, the learned Single Judge did not notice that the aforesaid letter of the Government refers to encashment of leave preparatory to retirement and not earned leave during the course of service.
13. We are, therefore, unable to agree with the learned Single Judge that on the basis of letter dated 4-6-1984 the leave encashment could not be allowed. To us it is quite evident that the aforesaid letter had no application to the encashment of earned leave which had already been allowed by the Government vide its letter dated 29-9-1991. Even if it be assumed that letter of 4-6-1984 was relevant in the present context yet it stood superseded by a subsequent letter dated 29-9-1991.
14. Learned counsel further pointed out that Board of Intermediate and Secondary Education in terms of section 10(4) of the Act framed rules known as The Boards' Employees Encashment of Earned Leave Rules, 1991 pursuant to the recommendation of a committee set up by the Board which comprises of the two representatives of the Government itself who too had favoured making of rules. Be that as it may, we have noticed from the record that firstly, the Government itself has decided that it was for the Boards to take any decision on the demand made by the employees at their own level and secondly, by its letter dated 18-9-1991 the Boards were allowed the encashment of the earned leave. Consequently, requirement of section 10(4) stood complied with.
15. We may also state that the learned counsel appearing on behalf of the respondent Board has not in principle opposed the grant. Of facility of encashment of leave to the employees but he says that the entitlement should be worked out on the basic pay excluding all the allowances. He further submits that the Government of Punjab had objected to the entitlement being worked out inclusive of the allowances. In reply learned counsel for the appellants have submitted that the Government of Punjab itself and all the bodies under its administrative control have allowed their employees to leave encashment facility on the basis of the basic pay alongwith all the allowance except conveyance allowance. Reference has been made by the learned counsel to the order of the Secretary, Punjab Agricultural Development and Supplies Corporation dated 11-7-1996 and rule 3 of the Punjab Small Industries Corporation Revised Leave Rules, 1986. It is also pointed out that the rules framed by the Board of Intermediate Education, Karachi also allow the same facility. In this respect rule 19 of Leave Rules of Karachi Board has been referred to.
16. We are, however, unable to agree with the learned counsel. It has been conceded before us that there are no rules framed by the Government which allow the encashment of the leave on basic pay plus the allowances so far as the employees of Government are concerned. On the plain wording of section 10(4), if the Boards wanted to allow this extra-benefit or concession approval of Government was necessary. No doubt, the Government had granted the permission to the Board to allow encashment of the earned leave but there is nothing in the permission which can be construed as allowing the Board to work out the entitlement by including the allowances when the Government itself was not doing so. Consequently, the contention of the learned counsel for the respondents that the leave encashment should be confined only to basic pay scale appears to be correct. We are, consequently, of the view that it is for the Government of Punjab to decide whether while calculating leave encashment allowances should also be included or not. This limited question shall be placed by the Board before the Government which shall take a final decision in the matter within two months.
17. Before parting with the case, we feel that in the facts and circumstances of the case the Chairman and Officers of the Boards had acted bona fide and we are, therefore, inclined to expunge the remarks made by the learned Single Judge about them. Order accordingly.
' In view of the above, we allow the appeals and modify the order of the learned Single Judge and hold that the appellants are entitled to house rent at the rate of 50% of the basic pay and also leave encashment on basic pay. The matter as regards the entitlement to encashment of leave on the allowances except conveyance allowance shall be referred to the Government for its approval which shall take final decision within two months from today.
' No order as to costs.