2017 P L C (C.S.) 1222
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ
TARIQ HUSSAIN and others
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Education Department and 2
others
Constitutional Petition No.179 of 2016, decided on 3rd April, 2017.
(a) Revised Leave Rules, 1980---
----R. 10 ---Balochistan Text Book Board Ordinance (XI of 1977), Ss.9, 4, 19 & 18--- Balochistan
Text Book Board Employees Service Regulation, 1988, Regln 12(2)(b) ---Constitution of
Pakistan, Art.199---Constitutional petition --- Maintainability --- Civil service ---Employees of
Balochistan Text Book Board ---Leave encashment, refund of ---Scope ---Petitioners -employees
were allowed leave encashment by the competent authority but departmental accoun ts committee
directed them to refund the same---Validity ---Rule 10, Revised Leave Rules, 1978 was
applicable only in case of retirement on attaining age of superannuation and not otherwise ---
Employees, while in service were allowed the facility of leave en cashment by the Board of
Directors ---No such Board of Directors existed in Balochistan Text Book Board Ordinance,
1977, only there was an Advisory Council ---No power to frame rules and regulations was
available either with the Chairman or Advisory Council rather it was the Board empowered for
the purpose of S.19 of Balochistan Text Book Board Ordinance, 1977--- Decision for refund of
Leave encashment amount was without the mandate of law and of no legal effect ---Text Book
Board was empowered to frame its own rules but in absence rules framed by the Government
would have the application on the service of employees of the Board--- Text Book Board was
required to follow the rules framed by the Government but it was not done in the present case ---
Present matter being with regard to service of employees, Constitutional jurisdiction could only be exercised in exceptional circumstances and where effective and alternate remedy was not availed ---Petitioners -employees were required to file representation to the Authority next above
the Authority which issued the impugned order ---Employees had not availed the said remedy and
no special circumstances existed to exercise constitutional jurisdiction of High Court---Constitutional petition was dismissed being not maintainable.
Mushtaq Ahmed v. Secretary, M/O Defence through Chief of Air and Army Staff PLD
2007 SC 405 and Anwar Paverz v. Board of Intermediate and Secondary Education, Abbottabad 2005 SCMR 1603 ref.
(b) Constitution of Pakistan ---
----Art. 199---Constitutional jurisdiction of High Court ---Scope ---Constitutional jurisdiction of
High Court could only be exercised in absence of effective and alternate remedy.
Talat Waheed for Petitioners.
Muhammad Akram Shah and Zahoor Ahmed Baloch, Assistant Advocate General for
Respondent No.2.
Date of hearing: 5th December, 2016.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioners, forty four (44) in numbers,
employees of the Balochistan Text Book Board, Quetta, (The Board) were aggrieved of the
notices issued separately in their names by the Chairman, Balochistan Text Book Board with the
direction "you have received the Leave Encashment for the calendar years 2012 to 2015, as per decision of Departmental Accounts Committee you are directed to refund the overpaid amount o f
Leave Encashment within a period of Seven days positively, so the same audit para can be settled."
2. It was case of the petitioners that the Leave Encashment for the year 2011 was allowed,
and continued till 2014 on strength of the decision taken by the Board of Directors, the
competent authority, thus there was no occasion for recovery of the paid amount, already been
utilized. In addition their services were at par with the Boards working in the sister provinces, where the employees availed the leave encashment facility, thus the propriety demands equal
treatment of men in service working under similar conditions. It was prayed:
"--- it is to be declared that the impugned notices issued illegally and unlawfully for the
recovery of paid leave encashment to the petitioners and the petitioners are lawfully entitle for the leave encashment and further the stoppage of the same may be declared illegal and unlawful with the further directions that in future it may be accorded in favour of petitioners, in the interest of justice, equity and fair ."
3. The Chairman Balochistan Text Book Board, Quetta, (respondent No.2) fully supported
the case of the petitioners with the assertion of due exercise of the power at his end.
4. The Secretary, Government of Balochistan , Secondary Education Department, Quetta,
(respondent No.1) contested the right claimed by the petitioners, and also the maintainability of
the instant petition. It was contended that the Rules and Regulations framed by the Board required approval of the G overnment of Balochistan, the competent authority. While the
Balochistan Text Book Board Leave Rules 2015 (The Rules, 2015) were framed on 19th January, 2015 by the Board without obtaining formal approval of the competent authority, thus of no legal effect . In addition the leave encashment was only allowed on basic pay without any
allowances, that too, with approval of the competent authority, but the necessary ingredients were missing in the instant case.
5. The Director General Audit Balochistan, Quetta, (respondent No.3) in reply was with the
plea that the Board was not competent to grant leave encashment before formulating its own
Rules and Regulations for the purpose, and the approval of the competent authority was mandatory before promulgation of the R ules framed. Thus Notification dated 28th November,
2011 was of no legal effect for the reason it was issued without approval of the competent authority. Further, the audit was conducted within the mandate of the Constitution. In addition
the leave encashm ent allowed by the Board was stated to be against the spirit of the leave
encashment allowed to the government employees, which in fact permissible only at the time of
retirement and to be computed on the basis of the pay and allowances calculated towards pension as laid down under Clause 11 of the Balochistan Leave Rules 1981. In addition the Leave Rules framed by the Government of Balochistan applicable to the petitioners were with no provision of leave encashment except leave prior to retirement. Further , the Rules framed in 2015 have no
retrospective application.
6. The issue between the parties was the demand for return of the leave encashment facility
already availed by the petitioners at the strength of the Notification dated 28th November, 2011. The employees of the Board (including the petitioners) were allowed grant of encashment of
earned leave along with allowances except conveyance allowance payable for the calendar year 2011 and onwards. It was with the prior approval of the Board of Directors. During the course of
audit an objection was raised by the Audit that the Board paid leave encashment in lieu of leave
not availed during the year to the employees on basis of the gross salary instead of the basic pay. Thus in response to the decision taken by the Departmental Accounts Committee (DAC) the
petitioners were directed to return the over paid amount of leave encashment within a period of seven days. This resulted in filing of the instant petition.
7. The learned counsel for the petitioners in support of his case pressed the leave rules
prepared in the year 2015, (The Balochistan Text Book Board Leave Rules, 2015), with the assertions that the Rules, 2015 were framed with the approval of the Board of Directors as required by Section 19(d) of the Ba lochistan Text Book Board Ordinance No.XI of 1977
(Ordinance XI of 1977). Further, Rule 16 of the Rules, 2015 specifically allowed leave encashment facility besides other kinds of leaves to the employees of the Board. Thus in presence of the specific provi sion the petitioners in their status as of employees of the Board
were entitled for the facility as a right. As far approval of the Government was concerned, the learned counsel was of the view that there was no such requirement, rather it was within the domain of the Board of Directors, thus duly approved, and have to be followed. It was averred that as there was no fault on part of the employees, thus neither could be compelled to repay the amount, nor could be penalized for its non- payment.
8. The learned Assistant Advocate General in reply was of the view that the matter in hand
pertains to services of the petitioners, thus this Court lacks jurisdiction, and there could be no order in the terms as prayed in exercise of the jurisdiction vested in th is Court under Article 199
of the Constitution. He placed reliance on:
Mushtaq Ahmed v. Secretary, M/O Defence through Chief of Air and Army Staff PLD 2007 SC 405.
Anwar Paverz v. Board of Intermediate and Secondary Education, Abbottabad 2005 SCMR 1603.
It was further contended that the audit was done with the mandate of Article 70 of the
Constitution, and in presence of the decision taken by the Public Accounts Committee, not
challenged by the petitioners; no order could be passed in the terms as prayed.
9. The issue in hand pertained to Leave Encashment allowed to the employees of the Board,
thus the law applicable to the Board i.e. the Balochistan Text Book Board Ordinance XI of 1977 would have the relevance, and to be read with the Rules and Regulations framed thereunder. The
Board has to act within the mandate of the Ordinance XI of 1977. Section 19 of the Ordinance, 1977 empowered the Board to frame Rules and Regulations to carry out the purpose of this Ordinance. Subsection (2) of the Section is with the requirement to submit the Regulations to the Government, but the requirement to the extent of the Rules this section is silent. The Board framed number of Regulations and Rules within the mandate of Section 19 of the Ordinance XI of 1977. As the issue in hand pertained to the Leave Encashment on account of earned leave, thus the Rules and Regulations framed to the extent would be relevant for decision of the issue. It was observed that till 2015 there were no Leave Rules of the Board, until the Balochis tan Text
Book Board Leave Rules, 2015 were promulgated in January 2015 with retrospective effect.
10. In absence of the Leave Rules there might be some via media to deal with the situation.
Thus to sought out the Rules and Regulations the First Regulation framed by the Board in the year 1981, with the title The Balochistan Text Book Board First Regulation, annexed with the petition was gone through. This Regulation regulates the duties and functions of the Secretary, Advisory Council and Audit Accounts Comm ittee, also contained the Rules for procedure to
regulate the transaction of business by the Advisory Council, but silent about the concession of leave allowed to the employees of the Board. Later in time the Balochistan Text Book Board Employees Service R egulation, 1988 (Regulation, 1988) was framed and promulgated. It
regulates recruitment to the Board Service, and prescribed the terms and conditions of service for the persons appointed thereto. Part VI of the Regulations, 1988 is with the application of the Government Rules. Plain reading of the clause 12 of the Regulation, 1988 made it evident that the Revised Leave Rules for Civil Servants under Balochistan Government, 1978 shall have the application to the employees of the Board. Thus would be relevant for determination of the issue
in hand.
11. The facility of Leave Encashment was allowed in favour of the petitioners in the year
2011 by the Board, continued up till 2014, thus the referred to Revised Rules, 1978 would have
application on the services of the employees, and to be followed by the Board. The Revised
Leave Rules, 1978 dealt with all types of leaves allowed to a government servant. Rule 10 of the Rules 1978 deals with Encashment of Refused Leave, it reads as under:
"10. Encashment of refused l eave . If in case of retirement on attaining the age of
superannuation, a civil servant cannot, for reasons of public service, be granted leave preparatory to retirement duly applied for in sufficient time, he will in lieu thereof be granted lump - sum leav e pay for the leave refused to him subject to a maximum of 180
days leave on full pay."
This Rule only applied in case of retirement on attaining age of superannuation and none
else. While the petitioners were in service when allowed the facility by order of the Board of
Directors. It was noted that there was no Board of Directors in the Ordinance XI of 1977, rather
an Advisory Council constituted under the mandate of Section 9 of the Ordinance. Further, no
power to frame Rules and Regulations lie either w ith the Chairman or with the Advisory
Council, rather it is the Board, composition whereof contained in section 4 of the Ordinance, empowered for the purpose by Section 19 of the Ordinance. In view of the noted sections the decision taken by the Board of D irectors was without the mandate of law, thus of no legal effect.
12. In addition the Audit of the Board was held as required by Section 18 of the Ordinance
XI of 1977, thus there was no illegality. The objection raised and the recommendations made by the Audit also not suffer from any illegality.
13. In view of the above discussion though the Board was empowered to frame its own
Rules, but in absence, the Rules framed by the Government would have the application on service of the employees of the Board, thus the Board was required to follow the same, but it was not done in the instant case.
14. The petitioners were aggrieved from the notices issued to them with the direction to
return the excess amount. The matter pertained to their service and the petitioners have
approached this Court for exercise of its extra ordinary jurisdiction in exceptional circumstances and absence of effective and alternate remedy. At the relevant time the Revised Leave Rules, 1978 were to be followed. No remedy was provided therei n, as there was no provision of appeal
in the Rules. Thus the Regulations of 1988 would be looked into for the purpose. Article 12(2)(b) of the Regulations, 1988 is with a provision of departmental remedy. Reproduction would be beneficial:
"Regulation 12(2 )(b) Where no provision for appeal or review exists in respect of a order
and employee aggrieved by any such order may except where such order is made by the Controlling Authority, make a representation against it to the authority, next above the authority which made the order."
Thus a provision of representation is provided as an alternate remedy. The petitioners
questioned the notices which were issued by the Chairman of the Board, thus they were required to file representations to the authority next above the authority which made the order. As it was the Chairman, thus the representation shall lie to the Controlling Authority, i.e. The Government of Balochistan. A remedy was provided specifically, but ignored by the petitioners. No special circumstances were brought on the record which necessitates exercise of extra ordinary
jurisdiction by this Court.
15. As far authenticity and legality of the Rules, 2015 is concerned. no findings are recorded
to the extent, as it is the Government of Balochistan having authority to look into the matter, and
determine the validity of the Rules at its own end.
For the stated reasons the petition is not maintainable and also failed on merit, thus
dismissed.
ZC/39/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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