P L D 2001 Supreme Court 531 (PLP)

IRSHAD HASAN KHAN, C.J.‑‑‑Through this common judgment we intend to dispose of the above appeals with leave of the Court directed against the judgment dated 4‑11‑1998 of the Lahore High Court posed in I.C.As. Nos.77 and 78 of 1998, Writ Petitions Nos.28387, 16798, 12692, 25486, 27047, 27207, 27656, 25082, 13912 of 1997, I.C.A. No,449 of 1997 and I.C.A. No.500 of 1997 involving identical questions of law and facts.

2. The facts of the case have been succinctly stated in the leave granting order which read thus:‑‑ "This order will dispose of Civil Petitions for Leave to Appeals Nos. 1411 and 1412 of 1998 directed against the judgment dated 4‑11‑1998 of the Lahore High Court passed in I.C.As. Nos.77 and 78 of 1998, as questions of law and facts are common in both of them. Board of Intermediate and Secondary Education was to fill vacant posts for which process was completed but appointments could not be made on account of ban imposed by the Provincial Government against the fresh recruitment. The petitioners filed Constitutional petitions before the High Court for declaration that the said ban imposed by the Provincial Government against the fresh recrutiment in the service of Provincial Government was not applicable to the Board which is an autonomous body created under a Statute and vested with the power under section 10 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 (Act XIII of 1976) to employ officers of the Board. The writ petitions were accepted through judgment dated 17‑3‑1998 by the learned Judge in Chamber against which Intra‑Court Appeals filed by the respondents were accepted through judgment dated 4‑11‑1998 impugned in these petitions against which leave to appeal has been sought. Learned Judges of the High Court after examining different provisions of the Act came to the conclusion that the Provincial Government being Controlling Authority by virtue of section 12 of the Act was vested with the power to give direction to the Board in the matter of recruitment of the employees of the Board. Learned counsel for the petitioners submitted that the Board is an autonomous body which has been created under section 3 of the Act which is a body corporate having the power to sue and can be sued in its own name. Under section 10 of the Act, the Board is fully empowered to employ different category of officers, therefore, the Provincial Government as a Controlling Authority could not interfere with such power of the Board and nullify the said provisions of the Act. The question whether the Provincial Government is empowered to interfere and deprive the Board under section 10 of the Act to make appointment of officers of the Board and employ them requires consideration, therefore, leave to appeal is granted to consider the same ..

3. The grievance of the appellants is that the Board of Intermediate and Secondary Education and the Punjab Board of Technical Education, Lahore (hereinafter referred to as the Boards), which were created under section 10 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 (Act XIII of 1976 and section 10 of the West Pakistan Board of Technical Education Ordinance, 1962 (Ordinance XXXIX of 1962), are autonomous bodies having been vested with the powers under the above statute to employ its staff, therefore, the ban imposed by the Provincial Government against the fresh recruitment in the Education Department was not applicable to the Boards. The contention raised on behalf of the appellants is that they having applied for various positions were duly selected after test and interview and observing other necessary formalities. However, before issuance of letter of their appointments, the Secretary to the Government of Punjab, Education Department, issued a Letter No.PS/ES/860/97, dated 22nd February, 1997 to the effect that no further appointment letters in the Education Department shall be issued, until further orders,

4. Hafiz S.A. Rehman, learned Advocate Supreme Court appearing for the Rawalpindi Board of Intermediate and Secondary Education has respectfully submitted that the Government of Punjab which was a necessary party in the Writ Petition but was not impleaded as party despite an objection raised in the written statement filed on behalf of the Board of Intermediate and Secondary Education, Rawalpindi and that even in this Honourable Court they have not been arrayed as a party. However, the direction of the Controlling Authority to the effect that no further appointment letters be issued in the Education Department until further orders, is covered by section 11 of the Act XIII of 1976 which provides: "Government shall be the Controlling Authority of a Board," therefore the directions/orders issued by the Controlling Authority are in accordance with subsection (2) of section 15 of the Act XIII of 1976, which provides: " ... ...It shall be the duty of the Chairman to ensure that the provisions of this Act and the regulations and rules and directions of the "Controlling Authority are faithfully observed and carried out, and he shall exercise all powers necessary for this purpose".

5. We have heard the learned counsel for the parties at length and perused the material available on the record. A bare perusal of the impugned directives of the Government of Punjab issued through letter dated 22‑2‑1997 indubitably shows that ban on recruitment has been imposed by the Government to the effect that no appointment letters shall be issued until further orders in the Education Department (Underlining is by way of emphasis). Further, the ban in terms of the said letter would not apply to the employees of the Boards as the same are statutory bodies having autonomous status. The Chairmen of the respective Boards have absolute authority to appoint or terminate the services of their employees in terms of section 10(2)(xviii) of Act XIII of 1976. The directions issued by the Punjab Government are exclusively applicable to the appointment letters to be issued in the Education Department and would not, 'ipso facto, apply to the employees of the said Boards merely because the letter has been addressed to the Director Public Instructions (Colleges S.E./E.E.) Punjab, the Chairmen BISEs. Lahore/Rawalpindi/Gujranwala/Multan/Sargodha/ Bahawalpur/D.G. Khan/Faisalabad and the Directors of Education (Colleges/S.E/E.E.), Lahore. Rawalpindi/Gujranwala/Multan/Sargodha/ Bahawalpur/D.G. Khan/Faisalabad inasmuch as for determining the scope of the letter in question we have to consider the subject‑matter of the letter and not the details of the addressees thereof. The position might have been different if the Controlling Authority had issued the instructions specifically to the officials of the within mentioned Boards.

6. The rule laid down by this Court in the case of Controlling Authority, N.‑W.F.P. Board of Technical Education, Peshawar v. Abdul Salam, Secretary, N.‑W.F.P., Board of Technical Education PLD 1993 SC 200 is not applicable in the present case. In the precedent case the post of Secretary of the Board was upgraded from BPS‑18 to PBS‑

19. However, the Controlling Authority viz. the Governor of the Province refused to approve such upgradation. It was held that mete fact that the Board had the power to regulate the administrative matters or to appoint staff and determine their duties and conditions of their service would not dilute the effect and command contained in section 15 which 'would control the powers of the Board granted to it by virtue of section 10 of the N.‑W.F.P. Board of Technical Education Ordinance, 1972. Reference may also be made to the case of Syed Nuzhat Abbad Jaffery v. Government of Sindh (1993 PLC (C.S.) 470 (Karachi)) wherein offers in writing were made to the petitioners by the competent Authority after they had undergone interview/tests, but were not taken on duty as they were informed by the Authority that a ban had been imposed by the Government on fresh appointments. Formal appointment orders which were to be issued by the authority after acceptance of offers by petitioners therein, having not been issued, the submission that as their appointments had been made prior to the imposition of ban,, therefore, it did not come in the way of their appointment, was without merit.

7. As stated above, the judgments rendered in the cases reported in PLD 1993 SC 200 and 1993 PLC (C.S.) 470 (Karachi) are distinguishable and not attracted to the facts and circumstances of these cases inasmuch as the record does not show that any explicit direction was issued by the Controlling Authority to the respondent/Boards not to issue appointment letters until further orders. The impugned directive, which is applicable to the employees of the "Education Department", cannot be stretched to cover the case of the employees of the above Boards. Resultantly, the appeals are allowed and the impugned judgment is set aside. No order as to costs. Q.M.H./M.A.K./M‑227/S Appeal allowed.