' Petitioners, 47 in number were initially appointed as Junior Clerks, Drivers, Security Guards, Naib- Qasids, Daftries etc. On ad hoc basis for a period of six months by the respondent Board. Annexure 'A' is the letter of initial appointment issued in favour of Munir Hussain petitioner No,1, which according to the learned counsel is reflective of the letters issued to other petitioners. Vide Annexure 'B', another letter, dated 28-8-1995, issued in favour of same petitioner, petitioners are claimed to have been regularized w,e,f, 1-9-1995. 'on the terms and conditions stated in the letter.
Conditions Nos,1 and 2 are relevant and are reproduced as under at this juncture:--
(i) Your services are liable to be terminated without assigning any reason after giving you due notice as required under the regulations of the Board which is as under:--
(a) 5 years service or more 90 days
(b) 1 year service or more but less than 5 years 30 days
(c) 6 months service or more but less than 1 year 15 days
(d) Less than 6 months service provided that no notice will be necessary if you are found to have mutilated, erased or tampered with office record,
(ii) You will be deemed to be on probation for a period of two years commencing from the date of joining service, which shall be extendable in accordance with the Service Regulations."
2. Vide Annexures 'F' to 'F/2' the services of the petitioners have been terminated, being no more required, case of the petitioners is that this termination is illegal and it is prayed that the order of termination, dated 17-4-1996 be declared as ultra vires, without jurisdiction and not binding on the rights of the petitioners.
3. . In the report and parawise comments the claim of the petitioners is resisted on the ground that all the petitioners being still in the probation period, their services could be terminated under the relevant provisions as well as the letter of appointment. It is elaborated that in terms of Government memo. Dated 8-2-1995 the Recruitment Committee was constituted for filing up the vacancies of Stenographer (1), Coach (Female) (1), Junior Clerks (18) and Security Guard (1). A merit policy was laid down and a public notice (Annexure 'R-2') was published in the National Daily newspaper inviting applications from qualified persons. It is asserted that while this process of selection was on, 75 persons including the petitioners got themselves appointed on ad hoc basis on the recommendation of Education Minister and various M.N.As. And M.P.As. Subseqtiently the Minister for Education appointed a Sub-Committee, which deferred the case of 26 employees and recommended employment of 49 ad hoc employees on temporary basis, including the petitioners, on terms and conditions contained in the letter issued individually in favour of the petitioners. It is claimed that after the change of Government, a fresh scrutiny under the direction of the Government was conducted and all persons politically appointed were asked to leave. The action of termination is claimed to be legal. It is also stated that in future vacancies will be duly advertised and appointments will be made on merit in a transparent mariner and it will be open to the petitioners to participate in the process provided they are otherwise eligible.
4. During the course of hearing spread over number of dates a preliminary objection as to the maintainability of the petition was raised on the ground that the rules of service of the respondent Board are non-statutory and as such the petition is not maintainable. It was argued that there being a conflict of opinion in the judgments of Single Benches, a Division Bench was considering the question. The case was, therefore, adjourned on some occasions to await the judgment of the Division Bench. The Division Bench judgment in Writ Petition No,23674 of 1996 and some connected petitions, has been announced on 7-12-1999. The Division Bench has dismissed all the petitions on the ground that service rules, adopted/framed by respondent Board under section 21 of the Punjab Board of Intermediate and Secondary Education Act, 1976 (hereinafter referred to as the Act) were non-statutory as they have been framed by the Board, without any Government interference. The above finding and conclusion of the Division Bench decides the fate of this petition as well.
5. Mr. Noor Muhammad Awan, Advocate appearing for petitioner was apparently not happy with the Division Bench judgment and attempted, by referring to a large number of case law to show that the service rules of the respondent-Board are statutory and that the Division Bench judgment was open to serious objection. In particular Mr. Awan relied on Board of Intermediate and Secondary Education, Sargodha v, Abdur Rehtnan (1988 SCM R 1711),
6. In reply Dr.M. Mohy-ud-Din Qazi, Advocate appearing for respondent-Board supported the Division Bench Judgment and repelled the submission that the same was in any manner not in accord with the judgment of the Supreme Court. Alternatively he. Argued that even if the writ petitions be assumed to be maintainable, petitioners' termination has rightly taken place as under the Service Rules/Regulations they have no right to insist that they cannot be terminated in the matter in which the termination has taken place. He has also produced before me the original file, which contains the direction of the then Minister for Education for appointment of each of the petitioner. He has relied on Director, Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan (1996 SCR 1349) and Abdul Rashid v. Riazuddin and others (1995 SCM R 999) to submit that a Minister MNA/MPA has no authority in law to direct appointments and such appointments are not only illegal but void. In the same connection he placed reliance on Nazir Ahmad Rana v. Chairman, Board of Intermediate and Secondary Education, and others (1998 SCM R 1172) to highlight that it is the Board itself, to the exclusion of everybody else, who can make appointment to a post in the service or Board.
7. The Division Bench judgment, dated 7-12-1999 delivered in Writ Petition No,23674 of 1996, is directly in point and resolves the controversy. The judgment in any case is binding on a Single Bench. The attempt of Mr. Awan to pick hold in the same is not understandable. He could have saved the time of the Court since, in any case, a Single Bench cannot set aside or disagree with the judgment of a Division Bench. Respectfully following the principle laid down by Division Bench, I hold this petition to be not maintainable.
8. Since elaborate arguments on merits have also been addressed, I deem it appropriate to determine the same. This is on the assumption that the Service Rules of the respondent-Board are statutory and, therefore, the writ is maintainable. The Rules/Regulations do not give authority to the Minister for Education, to either make an appointment or direct making of appointment or even recommend appointment. It has been argued that Minister was acting as Controlling Authority and as such Controlling Authority, his orders are justified. The argument has to be rejected. Controlling Authority as defined in section 11 of the Act states "Government shall be the Controlling Authority of a Board". Minister is a different entity than the Government, which has been defined in section 2(g) of the Act as Government of the Punjab. Mr. Awan relied on Notification No,SOR-III-I-6/89, dated 28- 2-1989, issued by the Governor in exercise of powers under section 23 of the Punjab Civil Servants Act, 1974, to give authority to the Minister to make the appointments to all posts in BS-1 to 5 and P.T.C. Teachers. He also referred to circular letters issued by Education Department, Government of Punjab, dated 10-3-1994 and 22-11-1994 to the effect that no appointment should be made without prior approval of the Education Minister and that the final lists prepared for appointment after observing codal formalities be personally placed before the Minister for final selection and approval.
9. None of notification/letters justify the initial appointments made in this case by the Minister. The perusal of the notification, dated 28-2-1989 shows that it contains the Punjab Delegation of Powers (Relaxation of Condition of Service) Rules, 1989. Rules 2 states that these shall apply to all services and posts is BS 1 to 5 under the Government of Punjab. Rule 4 provides that "notwithstanding anything to the contrary contained in any service/recruitment rules in force in Punjab or any part thereof, the authorites specified in column 2 of the Schedule annexed to these rules may, for reasons to be recorded in writing, relax any of the conditions of service prescribed for recruitment to any post or service to the extent specified against such authority in column 4 of the Schedule".
As per entry No,2 of the schedule, concerned Minister can relax all conditions of appointment except qualification, to all posts in BS 1 to 5 and PTC Teachers. The above rules expressly apply to the services under the Government of Punjab. These will, therefore, not apply to services in the respondent-Board. Mr. Awan, however, argued that the Minister in this case represented the Controlling Authority of the Board and as such the notification will be deemed to extend and apply to the posts in the services of Board. The argument has serious infirmity. For instance the rules have been framed under section 23 of the Civil Servants Act, 1974 and the Act applies to services of Government of Punjab and not to the services of statutory bodies including the respondent-Board.
However, once again assuming that the delegation rules are applicable, the power of relaxation can be exercised only for reasons to be recorded in writing. Mr. Awan has not argued much less shown that in the present case the honourable Minister applied his mind to the circumstances of the case of each and every petitioner and gave reasons in writing as to why he was directing their appointments. I, therefore, conclude that the notification, dated 28-2-1989 does not save the initial appointments of the petitioners.
10. The circular letters, dated 10-3-1994 and 22-11-1994, further relied upon by Mr. Awan are only administrative instructions and do not confer any authority on the Minister to make appointments.
The authority is derivable from law and not from circular letters. The circular letters, however, are an attempt by the Minister concerned to monopolize each and every appointment falling within his department and this tendency apart being illegal and unconstitutional, is highly regrettable. The honourable Minister ought to have realized that there is a set procedure for recruitment and appointment and in a democracy, which we claim to be, there is room for concentration of power in the Minister, in utter disregard of the rules and regulations and in fact in derogation of the same.
It is not understandable as to why the functionary of the level of Minister should be concerned with appointments to the posts of Naib-Qasids, Daftries, Drivers and Junior Clerks. As the original file shows the petitioners were, appointed directly under the orders of the Minister and, as noted above, the honourable Minister did not have any authority to make such appointment. The judgments of the Supreme Court relied upon by Mr. Qazi are also to the same effect. The appointments of the petitioners were utterly void and even subsequent scrutiny by so-called committee constituted by the Minister, does not save the appointments. Since the Minister by his unconstitutional and illegal act has caused financial burden to the Board, it will be for the. Board to take legal action in accordance with law against the Minister concerned for reimbursement and other appropriate remedies.
11. Mr. Awan's stress on the so-called subsequent appointments to be on regular basis, is again of no avail to the petitioners. The conditions of regular appointments as reproduced above indicate that each of the petitioner was to remain under probation for a period of two years. It has not been argued that a probationer has a vested right to continue in service. No such right exists for a probationer and his service can be terminated without assigning any reason. The petitioners having accepted the services on this condition cannot be permitted to turn around and challenge the termination, certainly not in equitable jurisdiction such as conferred on this Court under Article 199 of the Constitution.
12. It has also been argued that no notice as laid down in condition No,1 of the appointment letter has been issued. In fact it has been argued that the condition of notice of discharge, has been taken from Regulation No,18 and this Regulation is not applicable to the petitioners. This argument has again to be rejected, firstly on the ground that petitioners having accepted service with condition No,1, cannot be permitted to resile from the same. Secondly the condition is in accord with. Regulation 18, which is applicable to the case of the petitioners as the petitioners are temporary employees within the meaning of Regulation 18. Further, the absence to issue notice will not vitiate the termination. It only entitles the petitioners to claim a sum equivalent to the amount of pay for the period of notice as laid down in proviso-I to Regulations.
13. It has also been argued by Mr. Awan that petitioners can only be terminated if retrenchment of posts within the meaning of Regulation 18 occurs. The argument is invalid and is hereby rejected. It is only for permanent employees, who can be discharged provided retrenchment of posts has taken place. Petitioners are not permanent employees and, therefore, no retrenchment of post is necessary in their case. The argument that no hearing has been provided before termination is again of no help. Hearing in the present case is not called for as petitioners are not being thrown out on any charge inviting stigma in their character and performance. The petitioners are probationers and their services are being terminated.
14. For all what has been stated above there is no merit in this petition, which is dismissed with 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.