1993 PLP (C (PLC(CS))

NASIR ASLAM ZAHID, C.J. ‑‑‑The petitioner joined service of respondent No.l, Board of Secondary Education, Karachi in 1955 as a clerk and ultimately retired from service as Deputy Controller of Examinations and Computer Executive on 6‑5‑1985 on reaching superannuation. According to the petitioner, respondent Board, in its meeting held on 27‑1‑1983, passed ‑the following resolution (Resolution No.12): "Resolved that instead of gratuity and G.P. Fund benefits the employees of the Board be granted pension and G.P. Fund benefits as per Government Rules and necessary steps be taken in this regard." The case of the petitioner is that, on passing the above resolution by the respondent Board, its employees, including the petitioner, became entitled to the grant of pension and G.P. Fund benefits as per Government Rules but the Board neither circulated the said resolution amongst its employees nor did it invite options from them. It is a matter of record that the respondent Board sent the said Rules for approval of the Government (respondent No.2) and the Government approved the Rules to November 1985. The Rules were gazetted in the Sindh Government Gazette of 12‑11‑1985. According to the petitioner, it was not necessary for the respondent‑Board to obtain approval of the Rules from the Government. The admitted factual position that emerges is that when the said resolution was passed by the respondent Board, the petitioner was still in service of the Board but he retired in May 1985 i.e. about six months before the approval of the Rules by the Government in November 1985. The point that arose for consideration in this Constitutional Petition was that in case the Rules were statutory Rules and they became effective on 27‑1‑1983 when the Board passed its Resolution No.12 adopting the Government Rules or the Rules became the statutory Rules and effective on 12‑11‑1985 when the Government approved the Rules. We heard the arguments of Mr. Shabbir Ahmad Shaikh, learned counsel for the petitioner and Mr. K.M. Nadeem, learned Assistant Advocate‑General, who appeared on Court notice on 21‑10‑1992, and, on close of submissions, by our short order dated 21‑10‑1992, this petition was dismissed in limine. Reasons for the dismissal of the petition are given in the present order. The relevant law is the Sindh Board of Intermediate and Secondary Education, 1972 (Sindh Ordinance No. VI of 1972). Arguments before us by learned counsel for the petitioner and the learned AA.‑G. revolved around two sections, namely, sections 11 and section

17. Section 11 refers to the powers of the Board and it provides that the Board shall have the powers to organize, regulate, develop and control intermediate education and secondary education. Clause (xviii) of subsection (2) of section 11 was relied upon by the learned counsel for the petitioner, which reads as follows: "(2) In particular and without prejudice to the generality of the powers conferred by the preceding subsection, the Board shall have the power .......... (xviii) to appoint the staff and define their duties and conditions of service in accordance with the Government rules." According to Mr. Shabbir Ahmad Shaikh, when the respondent Board passed its resolution dated 27‑1‑1983, it decided that the employees of the Board would be granted the benefit of Government rules in so far as Pension and G.P. Fund is concerned and this decision was taken by the Board under section 11 (2)(xviii) of the Ordinance, 1972 and as such it took effect from 27‑1‑1983, the date of the resolution of the Board. In the circumstances, learned counsel submitted that as the petitioner retired from service in May 1985, much after the said resolution was passed, he is entitled to the pensionary benefits under the Government rules and not the earlier rules of the Board. Reliance was also placed by Mr. Shabbir Ahmad Shaikh on a decision of the Supreme Court of Pakistan in the case of The Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 SCMR 1275). On the other hand, Mr. K.M. Nadeem, learned AA: G. submitted that the relevant provision is section 17 of the Ordinance, 1972, which gives the powers to the Board to make regulations including the power to constitute pension or provident fund or both for the benefit of the Officers and other employees of the Board. Subsection (2) of section 17 reads as follows: "(2) The Regulations approved by the Board shall be submitted to Government and shall not take effect until they are approved by the Government. Government may approve or disallow or remit them to the Board with its recommendations for further consideration." According to the learned A.A.‑G., as the resolution adopting the rules was approved by the Government in November, 1985, under clause 17(2), the said resolution shall take effect from the date it was approved and, as a consequence, the petitioner cannot take advantage of the said resolution, having retired in May, 1985, six months earlier to the date of approval by the Government. In our view, the stand taken by the learned AA.‑G. on behalf of the Government is correct. Section 11(2)(xviii) on which reliance has been placed gives powers to the Board to appoint the staff and define their duties and conditions of service in accordance with the Government rules. No mention is made in this provision to pension and provident fund. In section 17(1)(d) specific mention is made to the constitution of pension or provident fund or both for the benefits of the officers and other employees of the Board. If any rule or regulation is made providing for pension and provident fund it will attract section 17 of the Ordinance 1972 which requires, by subsection (2) thereof, approval of the Government. In our view, when the Board decided to adopt the Government rules relating to provident fund and pension, this resolution required approval of the Government under subsection (2) of section 17, which provides that the regulations approved by the Board shall be submitted to the Government and shall not take effect until they are approved by the Government. As approval in the present case was accorded in November 1985, the resolution, though, passed in 1983, became effective in November, 1985, on approval by the Government. By then, the petitioner had already retired and could not claim benefit under the said rules. Apparently, this was also the case of the petitioner as is evident from his letter sent to the Chief Minister in August 1987, which reads as follows: "It is very humbly stated that through your sincere efforts in January, 1983 as Education Minister all the Educational Boards of the Province of Sindh could be gifted with the benefits of Pension in November, 1985 after getting clearance from Services and General Administration Department, Finance and Law Department and final approval by Education Department. In the meantime I retired from Board's Service with effect from 7th May, 1985. Thereafter, due to Computerisation of Examination Results the Board was pleased to utilise my services on yearly contract basis for two years. As the Pension Rules were enforced about six months after my retirement, I was not privileged with the benefits of pension. In view of the above, it is therefore, very earnestly requested that the abovementioned contract period of two years from 7‑5‑1985 to 7‑5‑1987 may kindly be got treated as extension in service so that I may also be able to get the benefits of pension." Reference may be made to the decision of the Supreme Court reported in 1983 SCMR 1275 relied upon by the learned counsel for the petitioner. The decision does not help the case of the petitioner. In the said case, it was held that where statutory rules govern service conditions of an employee, the pleasure of the employer in such case stands surrendered to the extent the matter is covered by the relevant statutory rules. In the cited decision, the assumption was that the rules of the Evacuee Trust Property Board were statutory rules. However, in the present case, in our view, merely by the passing of the resolution in January 1983 by the Board, the decision of the Board did not acquire the status of a statutory rule. In view of section 17(2) of the Ordinance 1972, the said decision acquired the status of a statutory rule/regulation in November 1985 when the Government approved the resolution and it was then that the resolution became effective. For the aforesaid reasons, this petition was dismissed in limine by our short order dated 21‑10‑1992. H.B.T./M‑1800/K. Petition dismissed.