' IHSAN-UL-HAQ CHAUDHRY, J.---It is proposed to decide Writ Petitions Nos,23674 of 1996, 5716 of 1994, 1666 of 1995, 14192 of 1995, 14890 of 1994 and 54174 of 1994 by this common judgment as the legal and factual controversy is the same.
1. The relevant facts are that the petitioner initially joined Board of Secondary Eduction, Sargodha on 31-1-1979 as Junior Clerk. He thereafter shifted to. Board of Secondary Education, Gujranwala on 1-9-1985. He was cited as an accused in case F.I.R. No,254. Of 1994 registered under section 5 of Act II of 1947 read with sections 420 and 471, P.P.C. With Police Station Civil Lines, Gujranwala on 1-8- 1994. The petitioner was also proceeded on departmental side and as a result of disciplinary proceedings he was dismissed from service on 25-1-1995. However, learned Special Judge acquitted him in the criminal case vide judgment, dated 3-10-1996. The petitioner filed appeal against the order of dismissal. The appeal was considered and dismissed by the Board vide order, dated 23-7-1998 which was communicated to the petitioner vide letter, dated 18-8-1998. The petitioner then filed this petition. It was being heard by learned Single Judge in Chambers. The basic question touching the jurisdiction was whether or not the petitioner was governed by statutory service rules? Learned Single Judge in Chambers noted that there were contradictory decisions on this legal point, therefore, the case was sent to the Hon'ble Chief Justice for constituting a . Larger Bench. In this background this petition alongwith similar other petitions has been placed before us.
2. Malik Noor Muhammad Awan, Advocate for petitioner in W.P. No,5716 of 1994 argued that according to criteria laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as Karachi Development Authority v. Wali Ahmed Khan (1991 SCMR 2434), rules applicable to the petitioner were statutory rules. It was added that the Board was competent to frame regulation, under section 20 and Rules, under section 21 of the Punjab Board of Intermediate and Secondary Education Act, 1976 as amended vide Ordinance XXXIII of 1985 (hereinafter to be referred as "Act, 1976") while under section 10(4) of Act, 1976 the Board shall not make any rule or allow any concession, benefit, privilege and allowance to any person, which is not in conformity with the rules enforced by the Government on similar matters, it was argued that the regulations have been framed which hold the field, therefore, the petitioner can maintain Constituti nal petition. In this behalf reliance was placed on Munir Latif Raja v. The ultan Development Authority (1995 PLC (C.S.)
898), The Principal Cad t College, Kohat v. Muhammad Shoab Qureshi (PLD 1984 SC 170), Anwar Hussain 'v. Agricultural Development Bank of Pakistan (PLD 198 SC 194), United Bank Limited v. Ahsan Akhtar (1998 SCMR 68) and Mrs . M.N. Arshad v. Mrs. Naeema Khan (OLD 1990 SC 612). It was argued that this point was considered in Imam Bakhsh Tatari v. Board of Intermediate (PLC 1986 (C.S.) 12).
3. Learned counsel for the petitioner in the other writ petitions including the one in hand simply adopted the above noted arguments. On the other hand, Mr. Shahid Waheed, Advocate for the Board argued that according to section 21(IV) of Act, 1976 the Board was competent to frame rules for such other matters as may be required under the Regulations to be provided in the rules. The Board proceeded to adopt Punjab Efficiency and Discipline Rules, 1975 vide Resolution of July, 1987, therefore, these were not statutory rules as it was entirely within the discretion of the Board without any outside interference. It was added that Regulation 4(26) made a provision that all matters not provided for in the Act and Regulations but decided by the Board to be included under rules. It was, therefore, maintained that E & D Rules would be framed under section 21 of Act, 1976 by the Board. It was argued that the matter came up for consideration in W.P. No,20817 of 1997, which was decided on 18-11-1997. It was held that these were not statutory rules. The same view was reiterated in W.P.
No,6594 of 1997, decided on 20-1-1998. It was added that the judgment in the case of Amam Bukhsh Tatari did not decide the point correctly.
4. We have given our anxious consideration to the arguments and gone through the record, provisions of Act, 1976 and Regulation as well as the rules framed thereunder and the precedent cases. The Board is competent to A frame regulations subject to approval of the Government and other limitations contained in section 20(1) of Act, 1976. The relevant portion reads as under:- "(20)(1) A Board may, subject to the approval of the Government, frame regulations, not inconsistent with the provisions of this Act, to carry out the purpose of this Act, provided that:-- (Underlined by us) ' a Board shall not propose draft of regulations affecting the constitution or power of any authority of the Board until such authority has been given an opportunity of expression an opinion in writing upon the proposals the draft of Regulations shall be forwarded to the Controlling Authority and shall not be effective until it has been approved by the Controlling Authority; and a Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials and other employees which is not in conformity with rules made by the Government."
' This is not all. The Legislature had specifically empowered the Board to frame Regulations in respect of the matters incorporated in subsection (2) of section 20 of Act, 1976. The relevant portion reads as under:- "(20) (1) .................................................
(2) In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for:-- the terms and conditions of service of the employees of a Board, including matters relating to grant of leave and retirement of such employees. (underlined by us)
(e) .........................................
' This power was further controlled by section 10(4) of Act, 1976, which reads as under:-- "(4) 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."
' This brings the discussion to rule making power of the Board, which is subject matter of section 21 of the Act, 1976. It would be seen that the only condition is that the rules should be consistent with the Act and Regulations and provide for the matter mentioned in clauses I to IV. The section is reproduced as under:-- "(21)A Board may make rules consistent with this Act and the regulations to provide for:-- ' the inspection of institution and the reports, returns and other information to be furnished by them; ' the conditions of admission of candidates to the examinations held by it and their eligibility for diplomas, certificates and titles; ' the matter and the form in which accounts of a Board shall be maintained; and ' such other matters as may be required under the regulations to be provided in the rules."
It is clear from the above section that the terms and conditions of service of the employees of the Board are not included in the list of the matters in respect of which rules may be framed by it. The rules are subject to basic conditions:-- ' it should be consistent with the Act and Regulations; and ' it should be in respect of the matter covered by Clause I to IV above.
' It is clear from sections 20 and 21 when read together that regulations are to be framed by the Board with the prior approval of the Government. The draft regulation affecting the constitution or powers of any authority of the Board shall not be proposed until that authority has been given an opportunity of expressing its opinion. The draft should not be effective until it has been approved by the Controlling Authority and Board is not empowered to make any regulation or adopt any rule or regulations concerning efficiency and discipline of the officers/officials, which is not in conformity with rules made by the Government on the subject. The Regulation 4 of the General Regulations provides that all matters not provided for in the Act and Regulations and decided by the Board to be included under the rules. The other relevant Regulation is 11 which deals with the terms and conditions and it is provided that every person, who is an employee of the Board shall hold the office during the pleasure of the Board. This is subject to the condition that in case of dismissal from service one has to be given reasonable opportunity to defend himself. It is clear from the bare reading of sections 20 and 21 of the Act, 1976 that the regulations are statutory while the rules under section 21 are not statutory. The Board had adopted Punjab E & D Rules, 1975 in its meeting held on 13-1-1988, therefore, these would be deemed as rules framed by the Board of Secondary Education under section 21 of the Act, 1976. The same does not enjoy the status of statutory rules. This is not all. The Board was ill-advised to adopt these rules by itself. It was not a matter covered by section 21 of the Act, 1976. Mr. Shahid Waheed, Advocate for the Board in order to prove the competency of Board referred to clause IV of section 21 of Act, 1976. Learned counsel for the Board, in this behalf, also relied on serial 26 of general Regulation No,4 which reads as under:-- "(4) The Board shall have the power to make rules consistent with the Act and the regulations, on all or any of the following matters in addition to those given under section 21 of the Act:--
(26) All matters not provided for in the Act or Regulations but decided by the Board to be included under rules."
It is clearly a residuary power of the Board. The purpose was to arm the Board to deal with the matters not provided for in the Act or Regulations. All such decisions of the Board have the status of domestic rules. The E & D Rules adopted by the Board through Resolution would be the rules framed under section 21 of the Act, 1976, therefore, they will not have the status of Statutory rules.
These would be just domestic rules. Moreover, the Board is aot competent to frame rules in respect of the terms and conditions of service. In this behalf, we maybe fortified in our view by clause III section 20(1) of Act, 1976 which reads as under:-- "(iii) a Board shall have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials and other employee which is not in conformity with rules made by the Government."
' This is not all. It is clear from subsection 2(a) of section 20 of Act, 1976, reproduced above, that the terms and conditions of service of the employees of the Board including matter relating to grant of leave and retirement were to be governed by the Regulations. The other relevant provision is clause-III of section 12(8) of Act, 1976 which reads as under:-- "(iii) make regulations concerning efficiency and discipline of officers and other employees of the Board."
When reading section 12 with clause-II of section 20(1) it becomes evident that the regulations are to be approved by the Controlling Authority, the Board has no such powers.
1. On the other hand, section 21, which armed the Board with the powers to frame rules did not include any power to deal with the terms and conditions of service. We have already held that general regulation, 4(26) cannot be deemed to give powers to the Board to frame rules in respect of the terms and conditions of service for the reasons that the regulation should not be inconsistent with the Act and now the Act provides that the terms and conditions of service of the employees of the Board is to be subject matter of the Regulation, therefore, there cannot be any regulation empowering the Board to frame rules on the subject. The rules are also to be consistent with the Act and Regulations. Therefore, any rule framed in violation of the provisions of the Act, would be invalid and ultra vires.
2. Now coming to the three judgments relied by the learned counsel for the Board. It was clearly held in.The main judgment by one of us (Ihsan-ulHaq Chaudhry, J.) in Writ Petition No,20817 of 1997 that the terms and conditions of the service of the employees of the Board were to be subject matter of regulation which have not been framed by the Government. In this behalf, we may refer to the judgment in the case of National Bank of Pakistan v. Punjab Labour Appellate Tribunal (1993 SCMR 105) wherein it was held that rules, which had not the approval of the Central Government, could not be regarded as statutory rules. We have come to the same view after scanning all the relevant provisions of Act, 1976 as well as the precedent case law. So far as Writ Petition No,6594 of 1997 is concerned, the earlier decision was simply followed.
3. Now coming to the contra judgment in the case of Imam Bakhsh Tatari (Supra), learned Single Judge in Chambers has not noted the provisions of sections 12, 20 and 21 and simply referred to Regulation 11 wherein it was provided that no employee to be dismissed from service until he has been given reasonable opportunity to defend himself. Neither the procedure to be adopted is provided nor the Authority who was competent to initiate action has been given in this regulation, therefore, the same could not be deemed as E & D Rules. The Board was fully conscious of this legal position, therefore, proceeded to adopt Punjab E and D Rules, 1975.
The upshot of this discussion is that the petitioner has failed to make out a case for interference in the constitutional jurisdiction, therefore, the petition is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.