ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Constt: Pett; No: 208 of 2007
Date Order with signature of judge.
For Katcha Peshi.
29.1.2010.
Mr. Qazi Manzoor Ahmed, advocate for the petitioner.
Mr. Ali Azhar Tunio, advocate for the respondents No.2 and 3.
Mr. Azizul Haq Solangi, Asstt: A.G.
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The petitioner was dismissed from service of Board of Intermediate and Secondary Education Larkana vide order dated August 23, 2004. Being aggrieved by his dismissal from service he preferred a representation U/S 9 of Removal from Services (Special Powers) Sindh, Ordinance, 2000 on 7.9.2004. That representation was rejected vide order dated 5.11.2004 and the order of dismissal from service was maintained. Being aggrieved by dismissal from service, consequent to the dismissal of representation, the present petitioner filed Service Appeal No.335/2004 before the Sindh Service Tribunal. The appeal was held abated vide order dated 23.4.2007. Hon’ble Sindh Service Tribunal in its order dated 23.4.2007 relied upon Mohammad Mubeen-u-Sallam v. Federation of Pakistan through Secretary, Ministration of Defence and others (P.L.D 2006 S.C 602) by which judgment section 2-A of the Service Tribunal Act had been declared partially altra vires and held that section 3 (e) of the Sindh Service Tribunal Act 1973 has perimateria of section 2-A of Federal Service Tribunal Act 1973 therefore, declared it to be altra vires consequently, the appeal was held abated. After abatement of that appeal the present petition was filed by the petitioner.
Learned counsel for the Board of Intermediate and Secondary Education Larkana submitted that in view of judgment of the Supreme Court in Mohammad Idrees v. Agricultural Development Bank of Pakistan (P.L.D 2007 S.C 681), since the Board of Intermediate and Secondary Education have statutory rules therefore, whatever has been stated in Muhammad Mubeen-Us-Salam’s case (supra) have no applicability in respect of employees of the respondent Board. He therefore, submitted that the appeal would be maintainable before the Sindh Service Tribune and the jurisdiction of this Court is barred under article 199 of Constitution of Islamic Republic of Pakistan.
Learned counsel in this connection invited the attention of this Court to section 26 of the Sindh Board of Intermediate and Secondary Education Act Ordinance 1972 and also the minutes of 24th Meeting of the Board held on 27.10.2002 which minutes were confirmed in 25th Meeting of the Board held on 29.03.2003. Learned counsel also referred to letter No.GS/10(5)24/2002 (SOIII)/333 dated 11.4.2003 which written by Deputy Secretary, Secretariat of Governor Sindh whereby approval of the minutes was conveyed. Therefore, learned counsel for the Board submitted that the employees of the Board have statutory rules of service and therefore, the jurisdiction of this Court is barred by Article 212 of the Constitution of Islamic Republic of Pakistan . Learned counsel also referred to section 26 of the Ordinance 1972 and submitted that since the employees of the Board are public servants they are ipso facto are civil servants therefore, in any case are governed by the Sindh Civil Servants Act 1973. Learned counsel for the Board also submitted that since the order of abatement was passed by Sindh Service Tribunal on 23.4.2007 and the petitioner had not gone to the Supreme Court against that order therefore, he has nothing by that order if ….
Learned counsel for the petitioner submitted that approval granted by the Governor vide letter dated 11.4.2003 is an approval of the Governor and not approval by the Government of Sindh.
We have considered the submissions made by the learned counsel and have also gone through the record as well as the case law.
As far as the contention of the learned counsel for the Board that since U/S 26 of the Ordinance 1972, the employees of the Board are public servants therefore, they are ipso facto civil servants, the definition of section 26 is in the following words:
26. Members and employees to be public servants.—Members of the Board and the committee constituted under this Ordinance, the employees of the Board and other persons appointed for carrying out the purposes of this Ordinance, shall be deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code.
A bearing perusal of the section indicates that the employees of the Board are not public servants but are only deemed to be public servants. The word ‘deemed’ means what is otherwise not but by majesty of law they are declared to be so and so. They have been declared only public servants and they are not declared civil servants for the purpose of Civil Servants Act 1973. Civil Servant is defined in section 2(b) of the Civil Servants Act 1973 and the definition is in the following words:
2(b) “Board” means a Board of Intermediate and Secondary Education constituted under section 3.
The reading of the above definition indicates that many persons who are employed by the Government are not treated as civil servants by the Civil Servants Act. Some such examples could be persons employee in the Sindh …, persons employed in the Irrigation and Workmen employed in the Workshop of the High Department though are public servants they are employees of the Sindh Government but they are not civil servants. In the present case, U/S 3(ii) of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972, a Board is a corporate body having perpetual succession and a common seal with power to acquire and hold property and to transfer the same and may sue or be sued by the corporate name. Thus Board is a corporation which is a separate and distinct legal person from the Provincial Government. Employees of the Board are not employees of the Provincial Government but are employees of the Board. The fact that they are deemed to be public servants does not therefore, ipso facto means that they are civil servants for the purpose of Civil Servants Act, 1973. More so had they been civil servants, for the purpose of Civil Servants Act they have no need to provide in the Civil Servants Act, 1973 for provisions to make service regulations because that exists in respect of civil servants.
Hon’ble Sindh Service Tribunal passed order on 23.4.2007 following the Muhammad Mubeen-Us-Salam Case (supra) and declared section 3(e) partially altra vires of the constitution. This was done, as stated above, in pursuance of the order passed in Muhammad Mubeen-us-Salam case. However, subsequently in Mohammad Idrees Hon’ble Supreme Court clarified if at all clarification was needed its observation in Muhammad Mubeen-us-Salam case by observing as under:
(b) The proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.
Since the judgment of the case was passed before the Supreme Court in ….. words declaring law in respect of the employees of the State Organization which had statutory rules of services, the justice, fairness and equity demands that the judgment passed by the Federal Service Tribunal on 23.4.2004 be not allowed to stand in the way of the petitioner for seeking remedy against his grievance.
Now we come to the question whether regulations of respondent Board in respect of its employess are statutory or not. We may straight away observe though on record regulations U/S 2(47) of the General Clauses Act 1892 rules include a regulation made as rule under an enactment therefore, though regulations framed by the Board U/S 17 are called regulations but if they are made in accordance with the requirement of statute they are to be given effect. The statutory rules U/S 17 of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972 provides as under:
17. Powers of the Board to make Regulartions.-- (1) A Board shall have the power to make Regulations consistent with this Ordinance on all or any of the following matters, namely:--
(a) the constitution, powers and duties of Committees;
(b) additional powers and duties of the officers of the Board mentioned in Section 14;
(c) rules of service including rules regulating disciplinary action, grnat of leave and retirement of the employees of the Board;
(d) constitution of pension or Provident Fund or both for benefit of the officers and other employees of the Board;
(e) admission of institutions to the privilege of recognition and withdrawal of recognition;
(f) general scheme of studies, including the total number of subjects to be taught and the duration of courses; and
(g) such other matters as may appear necessary for giving effect to the provisions of this Ordinance.
(2) The Regulations approved by the Board shall be submitted to Government and shall not take effect until they are approved by Government. Government may approve or disallow or remit them to the Board with its recommendations for further consideration.
A bear perusal of the section indicates that power has been conferred by the statute on the Board to frame rules of service including rules regulating disciplinary action, grant of leave and retirement of the employees of the Board. Since rule are to be framed by the Board but the requirement would be rules are approved by the Board. The second requirement is laid down in subsection (2) of section 17 that regulations approved by the Board shall be submitted to Government and shall not take effect until they are approved by Government. Learned counsel for the board has placed on record a letter dated 11.4.2003 written by the Deputy Secretary, Secretariat of Governor Sindh. The letter reads as under:
“SUBJECT: MINUTES OF THE 25th MEETING OF THE BOARD OF INTERMEDIATE AND SECONDARY EDUCATION LARKANA SINDH, HELD ON 29.03.2003.
I am directed to refer to your letter No.BIS.E/Estt:/LRK/109, dated 02-04-2003 on the subject noted above and to convey the approval of the minutes of the subject meeting.”
A perusal of the letter indicates that the approval has been conveyed by the Deputy Secretary . This approval is approval by the Government because it is conveyed by the Deputy Secretary and no material whatsoever has been placed before this Court for disbelieving or to question authority or what is stated in the writing written by the Deputy Secretary therefore, second requirement for converting statutory rules as laid down in section 17(2) which appears to be complied with. Therefore, rules and regulations have the status of statutory rules.
Consequently following Mohammad Idrees case (supra), whatever has been stated by the Supreme Court in Muhammad Mubeen-us-Salam case is not applicable to the case of employees of Board of Intermediate and Secondary Education. Remedy of such employees lies before the Sindh Service Tribunal and therefore, jurisdiction of this Court is barred by Article 212 of the Constitution of Islamic Republic of Pakistan.
It is well settled law that grievance of the employees should be decided on merits and they should not be knocked out on technical grounds. If any authority is needed one may refer to Syed Aftab Ahmed v. KESC 91999 S.C.M.R 197.
As a result of the above discussion, this petition is disposed of and the petitioner is allowed 30 days period from the date of this order for invoking the jurisdiction of Sindh Service Tribunal. If an application for condonation of delay is filed by the petitioner, before the Sindh Service Tribunal, the Sindh Service Tribunal is expected to consider that application sympathetically and in accordance with the principles laid down by the Supreme Court in Syed Aftab Ahmed case (supra).
The petition stands disposed of in the above terms.
JUDGE
JUDGE