1998 PLP 1172 (SCMR)

AJMAL MIAN, J.

This is a petition for leave to appeal against the .order dated 24-9-1996 passed by a Division Bench of the Lahore High Court in Intra-Court Appeal No.221 of 1992, filed by the petitioner against the judgment of a learned Single Judge of the said High Court in Writ Petition No.4585 of 1995 dismissing it, declining the same by maintaining the above judgment of the learned Single Judge.

2. The brief facts are that the petitioner was an employee of the Education Department (Technical Wing), Government of the Punjab. It seems that in the year 1989, the petitioner's services were placed on deputation for a period of three years expiring on 23-5-1992 at the disposal of the Board of Intermediate and Secondary Education, Faisalabad, hereinafter referred to as the Board, as the Director, Physical Education. It appears that on 26-3-1992, the petitioner applied to the Secretary Education, Government of the Punjab, Lahore, through the Chairman of the Board, that he be permanently absorbed as Director, Physical Training, in the Board. It seems that the Education Secretary, through his order dated 24-3-1992 (at page 39 of the paper book) permitted the petitioner to be permanently absorbed in the Board with effect from 24-5-1992 after the expiry of term of his deputation. Pursuant to the above order, the Chairman of the Board, issued an office order dated 26-3-1992 allowing the petitioner to work permanently in the Board from 24-5-1992 on the expiry of his term of deputation in anticipation of the approval of the Board. It was also stated that the Government of the Punjab would however share the pensionary liability for the period rendered by the petitioner under the Punjab Government. It further seems that when the matter was placed before the Board in its meeting, it resolved not to absorb the petitioner permanently. The petitioner, thereupon, filed the aforesaid writ petition and Intra-Court Appeal without any success. He has, therefore, filed the present petition for leave to appeal.

3. In support of the above petition Mr. Muhammad Zaman Qureshi, learned Advocate Supreme Court for the petitioner, has contended as under:-- (i) That the order of the Secretary Education dated 24-3-1992 granting permission to the petitioner to be absorbed in the Board permanently constitutes an order of appointment under clause (ii) of subsection (8) of section 12 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 (Act XIII of 1976), hereinafter referred to as the Act; (ii) That the Board had no power to decline to absorb the petitioner permanently in its service after the Chairman had already passed an order to that effect. On the other hand, Dr. M. Mohy-ud-Din Qazi, learned Advocate Supreme Court appearing for the respondents/caveators, has urged that the above permission granted by the Secretary Education to the petitioner for getting himself absorbed in the service of the Board, cannot be equated with an order of the Provincial Government as a Controlling Authority under clause (ii) of subsection (8) of section 12 of the Act and that the Chairman had no power to absorb the petitioner permanently in the Board's service with the approval of the Board.

4. It may be observed that a perusal of clause (ii) of subsection.(8) of section 12 of the Act indicates that the Controlling Authority inter alia has been empowered to make appointments to any post in the Board in any capacity from persons in the service of Pakistan or from officers or other employees of any other Board. If the Secretary Education would have passed the above order under the provisions of the Act, the above contention of Mr. Muhammad Zaman Qureshi would have force. However, a perusal of the above order dated 24-3-1992 of the Education Secretary shows that it was not an order of appointment in terms of the above provision of the Act, but it was an order to grant permission to the petitioner to get himself absorbed in the service of the Board. In our view, the above order of permission to the petitioner cannot be equated with an order of appointment in terms of the aforesaid provision of the Act.

5. The above second contention of Mr. Zaman that the Board had no power to decline to absorb the petitioner permanently in Board as the order was already passed by the Chairman, it may be pointed out that under section 10(2)(xviii) of the Act, the Board has been empowered to appoint such officers and staff as it may consider necessary for the performance of its functions and defined duties and conditions of service. Whereas under subsection (5) of section 14 of the Act, the Chairman has been given the power subject to section 10(2)(xviii) of the Act, in case of urgency to create a temporary post in the Board and to appoint a person against that post for a period not exceeding six months subject to the proviso that such an appointment shall be reported by the Chairman within sixty days to the Board . for confirmation. In other words, the Board has the power to appoint any person in its service and not the Chairman. Even the above order of the Chairman dated 26-3-1992 states that the same is in anticipation of the approval of the Board. It p is, thus, clear that at no point of time the competent Authority had resolved to absorb the petitioner permanently in the service of the Board. The petitioner has no legal right to be absorbed permanently in the service of the Board. In this view of the matter, the impugned judgment of the learned Single Judge and the impugned order of the Division Bench are in consonance with law. The petition has no merits. Leave is refused. .A.A./N-483/S Leave refused.