2011 PLP (C (PLC(CS))

CH. MUHAMMAD TARIQ, J.

This consolidated judgment shall dispose of Writ Petitions Nos.2672 of 2010 and 2551 of 2010 as both these writ petitions challenge the validity of letter dated 2-2-2010 issued by the Higher Education Department, Government of the Punjab, Lahore.

2. Precisely stated the dispute between the parties is with regard to the enhancement of medical allowance @ 15% on the directions of the Minister.

3. Learned counsel for the petitioners contend that the letter, dated 2-2-2010 is illegal without jurisdiction, ultra vires and is liable to be set aside because the medical, allowance has already been increased and at present, no permission from the controlling authority is required. Further, the controversy between the parties already stand decided vide judgment dated 16-6-1997 passed by this Court in Writ Petition No.13069 of 1994 that the medical allowance being having a different basis can be granted without direction or permission of the controlling authority. Learned counsel avered that the respondents have no authority to decide it otherwise as Boards of Intermediate and Secondary Education Faisalabad and Lahore being financially independent and generating funds from their own sources, therefore, the boards were competent to increase the rate of medical allowance as per Chapter 33 of the Rules and the Education Department had no authority, to interfere in the decision of the Boards. Learned counsel pray that the instant writ petitions be allowed and the impugned letter dated 2-2-2010 be set aside.

4. On the contrary, learned Assistant Advocate General, Punjab on the instructions of learned counsel for the respondents has vehemently opposed these writ petitions and has prayed that the same be dismissed.

5. Arguments heard. Record perused.

6. There was also a dispute in the year 1994 regarding the same matter i.e. payment of 35% allowance on running basic scale, house rent @ 50% and encashment of earned leave. The matter came up before this Court in Writ Petition No.13069 of 1994 which was finally decided on 16.-6-1997 as under: "

9. The Boards are 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 allowance to any person which is not in conformity with the rules enforced by the Government of similar matter." It is clear from the above provision that the Board is at liberty to make any rules or allow concession', benefit, privilege or allowance..."

7. As per report and parawise comments submitted by Chief Secretary, Punjab, the Boards of Intermediate and Secondary Education in the Punjab have been established under PB1SE Act, 1976. Under Rules of Business 1974, status of the Boards is of autonomous bodies. Boards are authorized to take financial and administrative decisions at their own level However, Government has powers to issue necessary directions to the Boards, which they are bound to follow. A comparison of the medical allowance (before recent announcement of allowances w.e.f. July, 2010 is as under:- Government Employees Board Employees BS 1-15 (12-15% of initial basic pay) All grades (35 % of running basic pay) BS 16-22 (no allowance) Lahore and Faisalabad Boards (50% of running basic pay)

8. Despite these provisions, Boards have been increasing benefits of their employees with or without Government's approval. In 2009, Lahore and Faisalabad Boards enhanced medical allowance of employees by an additional 15% (from 35% to 50%) without approval of Government. There was a demand from other Boards to enhance the allowance on same pattern, which was not allowed. Finance Department has tendered its advice vide No. FD. PC.2-2/2010(Provl.) dated 13-8-2010 and has observed that notification for grant of Adhoc Allowance 2010 @ 50% of existing basic pay and medical allowance issued by the Finance Department is applicable to employees working in they Provincial Departments. Autonomous Bodies such as BISEs area not bound to adopt the same. However, they may adopt the same provided they have fiscal space available in their budgets and if the same is in accordance with their Act, Rules, etc. and the Provincial Government would not provide any resources to any Autonomous Body to meet additional expenditures incurred as a result of the said increase/ adoption.

9. The government is merely a controlling authority and in this capacity, it can only exercise such limited functions which are delegated to it under section 12 of the Punjab Boards of Intermediate and Secondary Education Act, 1976. Such functions do not include the authority to issue mandatory directives to control the use of funds by the Boards which are autonomous bodies and are generating funds from their own sources. Any direction against section 12 of the Act ibid by the Provincial Government is inoperative and without lawful authority in respect of the rights of the employees of the Education Boards.

10. Resultantly,, both the writ petitions in hand are accepted and the impugned letter dated 2-2-2010 issued by the Higher Education Department, Government of the Punjab is set aside. H.B.T./K-64/L Petition accepted.