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Constitutional Petition NoD‑779 of 1983,, decided on 15th March, 1986.

(a) Sind Board of Intermediate and Secondary Education Ordinance (VI of 1972)‑

‑‑‑5. 17‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Preliminary objection as to non‑availing of alternate adequate remedy, held, would not be available to establishment where employee was informed through written communication by such department that he was not supposed to make any appellant to the next higher authority against his reversion‑‑High Court in exercise of constitutional jurisdiction, declared order of reversion of employee to be illegal and without lawful authority‑‑Employee was ordered to be re‑instated to post from which he was reverted from date of such reversion.

‑‑‑5. 17‑‑Statutory rules, framing of‑‑Effect‑‑Where statutory rules were framed by establishment and procedure was laid down for taking action against employee,, relation between employee and establishment, held, would not be governed by principles of master and servant.

‑‑‑S. 17‑‑Sind Board of Intermediate and Secondary Education (Efficiency and Discipline) Regulations, 1972, Rr. 4, 6 & 7‑‑Reversion being major penalty, procedure relating thereto elaborated.

‑‑‑Art. 199‑‑Sind Board of Intermediate and Secondary Education Ordinance (VI of 1972), S. 17‑‑Action against employee‑‑Action taken against employee in derogation to procedure prescribed therefore, held, would render such action to be unsustainable which could be set aside in exercise of Constitutional jurisdiction of High Court.

Kunwar Mukhtar for Petitioner.

M. Hussain Adil Koatri for Respondent.

Date of hearing: 11th March 1986.

The petitioner was appointed by the respondents as a Lower Division Clerk on 18‑9‑1973. He was confirmed by the order, dated 16‑3‑1977. He was promoted as Upper Division Clerk on 17‑4‑1975. He was again promoted as Assistant, with effect from 1‑2‑1977 in temporary capacity. His services were regularised by the order, dated 14‑2‑1979. The petitioner was transferred from Examination (Despatch Section) to General Section (Despatch) on 18‑3‑1981. According to the petitioner his explanation was called for in respect of certain matters. The petitioner replied to the said explanation. By the order, dated 4‑6‑1981 the petitioner was reverted to the post of Upper Division Clerk. The petitioner, thereafter, filed an appeal before the Chairman against the aforesaid order of reversion. No reply was received by him and he submitted reminders. On 16‑6‑1982 he was informed that as he was not confirmed in the post of Assistant and as his reversion was made mainly due to the unsatisfactory work and conduct he was not supposed to 'make any appeal to the next higher authorities against his reversion. The petitioner again submitted an application challenging the legality of the above action but without any result. Thereafter, the petitioner has filed the present petition.

2. We have heard the learned counsel for the parties. A preliminar objection was taken by the learned counsel for the respondents that the petitioner has, not filed appeal to the Board which is an alternate adequate remedy, therefore, the present petition is not competent. The order, dated 16‑6‑1982 (Annexure 'H') shows that the petitioner was informed that he is not supposed to make any appeal to the next higher authority against his reversion to the post of U.D.C. In vie of such reply it is too late in the day to contend that the petitioner should have availed of the alternate remedy. This contention has no force

3. The learned counsel for the petitioner has submitted that no show‑cause notice was served upon the petitioner before the impugned action has been taken. In the comments furnished by the respondents it has been stated that after considering the reply of the petitioner, which he had submitted in response to the show‑cause notice, the impugned order has been passed. The Notice Annexure 'C', dated 28‑3‑1981 has been served upon the petitioner and his explanation 'was called. The petitioner submitted his explanation and thereafter, the impugned order, dated 4‑6‑1981 has been passed. In this order it has been stated that the petitioner was promoted to the post of Assistant mainly on the score of seniority but he failed to justify his promotion by satisfactory work, therefore, he was reverted to the post of U. D. C.

4. Learned counsel for the respondent has stated that the present petition is not competent as relationship of the parties are governed by the principles of the Master and Servant. This contention has no force. Statutory rules have been framed by the Board. Under section 17 of the Sind Boards of Intermediate and Secondary Education Ordinance, 1972 (Ordinance VI of 1972) a procedure has been laid down for taking action. Under rule 4(b) of the Efficiency and Discipline Regulations major penalties have been mentioned and reversion to a lower post in one of the major penalties. The grounds of penalties have been mentioned in paras. 3 and 3(a) provides that any one or more penalties may be imposed on an employee if he is inefficient or ceased to be efficient Inquiry procedure has been laid down under rule 6. Rule 6(2y provide that the authorised officer shall decide whether in the light of facts of the case an inquiry should be conducted through an Inquiry Officer of Inquiry Committee. If he so decides, the procedure indicated in regulation 7 shall apply. According to the Rule 6(3) if the authorised office decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee he shall by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of the action and give him a reasonable opportunity of showing cause against that action. Under sub‑rule 4(b) of Rule 6 it is proposed to impose a major penalty he shall forward the case t the Authority alongwith the charge and statement of allegations served on the accused, the explanation, the finding of the Inquiry Officer of Inquiry Committee if appointed, and his own recommendations regarding 'the penalty to be imposed and the Authority shall pass such orders a it may deem proper and convey the same to the accused.

This procedure has not been adopted by the respondents. As the provisions of rule 6 have not been complied with before taking action against the petitioner, therefore, the impugned, in this petition cannot be sustained. No major penalty can be imposed without complying with the regulations. The petition is, therefore, accepted.

By short order, dated 11‑3‑1986 the petition was accepted in the following terms‑.‑

"For the reasons to' be recorded separately, we accept this petition. Order, dated 4‑6‑1981 passed by the respondents is declared to be illegal and without lawful authority and the petitioner should be re‑instated to the post of Assistant which he was holding at the time of passing the impugned order shall be deemed to be re‑instated, with effect from 4‑6‑1981. The respondents are at liberty to take any action in accordance with the rules applicable to the petitioner. There will be n order as to costs."

The above are the reasons in support of the short order.

A.A. Petition accepted.

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