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Petitioner: FAZAL ELAHI EJAZ AND 22 OTHERS VS Respondent: GOVERNMENT OF THE PUNJAB AND 13 JUDGMENT
Court Name: Lahore High Court Judge(s): Sardar Muhammad Iqbal, Aftab Hussain Title:FAZAL ELAHI EJAZ AND 22 OTHERS vs GOVERNMENT OF THE PUNJAB AND 13
JUDGMENT
Reported As: PLD 1977 Lahore 549 Result: Petitions dismissed Judgment JUDGMENT ' AFTAB HUSSAIN, J.-This order will dispose of L. P. As. Nos. 130, 132, 133, 134, 135, 136, 137 and 138 of 1975. The brief facts are that on the 15th of March 1972, the Government of Pakistan announced the Educational policy outlining the scheme for nationalisation of privately managed Colleges and schools. For implementation of this policy, Martial Law Regulation No, 118 was promulgated w. c. f. 1st of April 1972, para. 4 of the Regulation provided that w. e. f. 1st of September 1972, all privately managed colleges together with all property attached to them shall vest in the Central Government, if they are situated in the Islamabad Capital Territory ; and in the Provincial Government if they are situated in a province. Para. 5 deals with the nationalisation of the privately managed schools, but the policy of nationalisation in cases of such institutions was different from the policy adopted in respect of privately managed colleges. While para. 4 made it clear that all the colleges in Pakistan without any exception would stand nationalised w. e. f. 1st of September 1972, para. 5 of the Regulation left it to the discretion of the Central Government in respect of schools situated in Islamabad Capital Territory and the Provincial Government in any other case to specify by a notification in the official Gazette issued at any time on or after the 1st day of October 1972, the privately managed schools which will vest in it with effect from 1-10-1972. It was further provided that such taken over schools shall vest in the Central Government or, as the case may be, in the Provincial Government together with all property attached to it. 2. The Punjab Government issued a Notification No, S. O. (M. S.) 1-2-1972 dated 30-9-1972 specifying the privately managed Primary, Middle and High Schools which stood nationalised as from the forenoon of the 1st day of October 1972, under para. 5 of the Martial Law Regulation No, 118. Since
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para. 5 of Martial Law Regulation No, 118 provided for issue of such a Notification on or after the 1st day of October 1972, the Notification dated 30th of September 1972 was given a legal cover and was validated by Punjab Ordinance, Temporary Enactment Act VI of 1973. All the colleges, thus, by virtue of para. 4 of the regulation and the schools described in the notification issued under para. 5 of the Regulation stood nationalised with effect from 1st September 1972 and 1st October 1972 respectively. 3. Para. 3 of the Regulation prohibited any person from owning or managing a privately managed college or a privately managed school, from closing such college or school or in any manner alienating, selling or otherwise transferring any property attached thereto, and all contracts or agreements made on or after the 15th of March 1972 relating to the alienation, sale pr transfer or otherwise of any contract of any such college or school, were declared void. Similarly para. 6 prohibited the owners or managers of such colleges or schools from making any change in the terms of any contract made by him or any of his predecessors with any person with regard to the premises of such college or school or to any property attached to it and all such changes made on or after the 15th of March 1972 were declared void. By para. 9 the respective Government was substituted as a party to the contract relating to the management of such college or school. This para., however, stands deleted by section 2 of Martial Law Regulation No, 118 (Punjab Amendment Ordinance, 1972) which was enforced on the 31st of August 1972. Para. 10 similarly transferred the rights, property, assets, liabilities, debts and obligations of the owner or manager of such college or school in so far as they related to the Management of such institution, to the Central Government or Provincial Government, according as the college or school was situated in Islamabad Capital Territory or in a Province. This para. Has also undergone a change by virtue of section 3 of Martial Law Regulation No, 118 (Punjab Amendment Ordinance), 1972 and as per amended para. 10 only rights, properties and assets and not liabilities, assets and obligations stand transferred to the Government concerned. 4. The provision which has a pivotal importance in these cases is the provision of para. 7 which as originally constituted read as follows :- "7.-(1) No person who owns or manages a privately managed college or a privately-managed school shall- (a) employ or engage any person for the purposes of the college or school, other than a person who was so employed or engaged immediately before the 15th day of March 1972 ; or (b) save as otherwise provided in sub-paragraph (2) change the terms and conditions of service of any person in his employment immediately before the 15th of March 1972. (2) As from the 1st day of October 1972, the teachers of all privately managed colleges and privately managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the colleges and schools maintained by Government are entitled." ' Para. 7 was amended by the Privately Managed Schools and Colleges (Taking Over) Punjab Amendment Ordinance, 1976 which was enacted as Punjab Act VII of 1976. The provisions as amended are as follows : "7.-(1) No person who owns or manages a privately managed college or a privately managed school shall- (a) employ or engage any person for the purposes of the college or school, other than a person who was so employed or engaged immediately before the fifteenth day of March 1972 ; or (b) save as otherwise provided in sub-paragraph (2) or except with the prior permission of the Provincial Government change the terms and conditions of service of any person in his employment immediately before the fifteenth day of March, 1972.
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(2) As from the 1st day of October 1972, the teachers of all privately managed colleges and privately managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the colleges and schools maintained by Government are entitled : ' Provided that, with the general or special permission of the Provincial Government, any person may be promoted, employed or engaged, on such terms and conditions as may be approved by the Provincial Government, against a newly created post or a vacancy caused by the retirement, or expiry of the stipulated period of employment, or termination of services in accordance with the terms and conditions of employment, of a person who was employed or engaged before the fifteenth day of March 1972." 5. Para. 7 (1) placed an embargo on employment or engagement of any person for the purpose of the colleges and schools other than a person who was so employed or engaged before the 15th day of March 1972 and also prohibited the making of any change in the terms and conditions of the persons who were already in employment on the above date. Subpara. (2) of para. 7 afforded protection to the teachers of all privately managed colleges and privately managed schools in regard to their scales of pay and it was provided that such teachers shall be entitled to the same scale to which the teachers of equivalent qualification, seniority and experience in the colleges and schools maintained by Government are entitled. 6. It is admitted on behalf of the Government that all the teachers of the privately managed colleges and schools to whatever cadre they belonged became civil servants with effect from the date of taking over of the colleges and the schools i,e, 1st of September 1972, in case of teachers of privately managed colleges, and 1-10.1972 in case of the teachers of the privately managed schools. Two Notifications were, however, issued by the Governor of the Punjab ; one in regard to the Principals, Professors and Assistant Professors of the Colleges, and the second in regard to the appointment of Headmasters and Headmistresses. By Notification No, S. 0. (N. S.) 1-1-72 dated 24th October 1972, the appointment of Headmasters and Headmistresses in the schools under Martial Law Regulation No, 118 was notified on ad h9c basis subject to the following conditions : (1) That their appointment as such would not give them any, right to these posts ; (2) That they would not be entitled to claim seniority on the basis of this Notification over their colleagues in the cadres of Headmasters as well as Senior English Teachers ; (3) That this Notification would not preclude Government from taking any further action such as examining their suitability for appointment to these posts (4) These appointments will last until their suitability is finally determined or they are replaced by suitable officers. 7. The appointment of all the petitioners in Writ Petition Nos. 993-S/1974, 337-S/1975, 501-S/1975 and 1558-S/1974 was notified by this Notification. Only those persons were not notified who were either unqualified to hold the posts of Headmasters (were not B. A., B. Ed.) or had already reached the age of superannuation. On the 22nd of May 1974 the Director of Public instructions, Punjab, issued Circular Letter No, 12793/M. B. Dated 22-5-1974, the relevant portion of which is reproduced t "As you are already aware, the fixation of pay of those Senior English Teachers who were working as Heads of Nationalised High Schools on or before 30-9-1972 was deferred, pending determination of their seniority. As decided, a combined seniority list is to be prepared of all the Headmasters/Headmistresses of Nationalized High Schools with the Senior English Teachers of High Schools ; Headmasters/ Headmistresses of Middle Schools and Headmasters/Headmistresses of Junior Model Schools and their Senior English Teachers who possess the requisite qualifications of the post. The basis for determining the seniority is the total length of service in the grade, cordoning gaps in service to the extent of 5 years. The Liaison Officers of District Pay Verification
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Committees may be asked to submit the lists by the 3rd June 1974, with complete biodata. The President of the District Nationalized Schools Teachers' Association should also be associated in the completion of the exercise. As for Lahore, a special committee has been constituted to prepare the seniority list." ' This policy letter may be considered to be a direction for decategorisation of the Headmasters/Headmistresses of the privately managed schools, whose appointment had been notified by the Notification dated 24th of October 1972. The petitioners in L. P. A. No, 130/1975 challenged the vices of this Circular Letter by Writ Petition No, 993/1974 on the 18th of October 1974. 8. The Governor of the Punjab promulgated Punjab Nationalised Schools (Men and Women Sections) reaching Posts Rules, 1974 on 26-9-1974. Proviso to sub-rule (1) of rule 4 of these rules provided that a person holding the post of Headmaster or Headmistress of a High School at the time of nationalisation of school and possessing qualification prescribed for the post of Senior English Teacher, shall be deemed to have been appointed as Senior English Teacher. In sub-rule (2) of rule 4 the method of recruitment to the posts of Headmasters or Headmistresses was laid down. It was laid down that total number of posts of Headmasters or Headmistresses of High Schools shall be filled by selection from among the persons holding posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) and Headmasters of Middle Schools and thereafter 85 per cent. Vacancies occurring in such posts, shall be filled by selection from among the persons holding the posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) and Headmasters of Middle Schools under these rules with not less than 8 years service as such, and the remaining 15 per cent. Of such vacant posts shall stand abolished from the cadre and stand transferred to the appropriate cadre of the teachers of the schools maintained by Government. Provisions were also made for filling the posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) and Headmasters of Middle Schools, in the existing vacancies. It was directed that existing vacancies shall be filled by promotion from amongst the persons who possess the qualifications prescribed for the post of Senior English Teachers but are holding lower posts under these rules and thereafter 50 per cent. Of the vacancies occurring in such posts, shall be filled by promotion from among the persons referred to above and the remaining 5 per cent. Of such vacant posts shall stand abolished from the cadre and stand transferred to the appropriate cadre of the teachers of the schools maintained by the Government. The posts of Senior Vernacular Teachers, Oriental Teachers and Junior Vernacular Teachers falling vacant in the cadre stand abolished from that cadre and transferred to the appropriate cadre of teachers of the schools maintained by the Government. Three cadres were created by rule 3 (2). Posts of Headmasters and Headmistresses of High Schools were borne on the Provincial cadre, posts of all types of Senior English Teachers and Headmasters of Middle Schools were borne on the Divisional cadre and posts of Senior Vernacular Teachers, Oriental Teachers, and Junior Vernacular Teachers were borne on the District cadre. It was provided in rule 5 that appointment to the posts of Headmasters of High Schools shad be made by the Government and to the posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) would be made by the Divisional Director, Education. Rule 6 deals with the seniority Inter se of the persons appointed to posts in various grades. 9. The appellants in L. P. A. No, 130/1975, therefore filed an amended Writ Petition No, 997/1974 with a view to challenge this Notification also. 10. The other Headmasters similarly affected by these rules filed Writ Petition No, 337-S/1975 (now L. P. A. No, 132/1975), Writ Petition No, 501/1975 (now L. P. A. No, 133/1975), Writ Petition No, 1538-S/1974 (now L. P. A. No, 134/1975 and Writ Petition No, 993-S/1994 (now L. P. A. No, 131/1975 (which has been withdrawn). In all these cases, the rules of 1974 were challenged as being ultra vices of the
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provisions of para. 7 (2) of Martial Law Regulation No, 118 mainly on the ground that this para. Protected the right of the Headmasters to hold the same posts which they already held and entitles them to the salary of Headmasters in the same scales of pay to which the Headmasters of the schools maintained by the Government are entitled. This being the common plea, it is unnecessary to give facts of each case. 10-A. Some of the Letters Patent Appeals arise out of writs filed by the college teachers who are similarly affected by the decategorization policy and rules made under para. 13 of Martial Law Regulation No, 118. The relevant facts of the cases of college teachers are that on the 4th of September 1972, the posts of Principals of Intermediate and Degree Colleges and Professors were created by Notification No, S. 0. (N. C.)-G/3-72 of even date. The petitioners in all the above writ petitions were appointed to their respective posts by the said Notification since they were already holding identical posts in the privately managed colleges. It was however clarified that : ''These appointments are on purely temporary basis until further orders and subject to the approval of the Public Service Commission and the Constitutional provisions regarding the age of Superannuation, citizenship and such rules as may be passed in regard to the service conditions of the said staff by the Government." ' On the 15th of May 1974 a Notification was issued by the Government in partial modification of the Notification dated 4-9-1972 and all other Notifications issued from time to time. By this Notification the Government appointed persons mentioned in Schedules 'A and B' attached thereto as Lecturers w. e. f. 1-9-1972. Regarding their pay it was provided that they will draw the same pay for the month of September 1972 as was drawn by them immediately before 1-9-1972. With effect from 1-9-1972 the pay shall be fixed in scale 17 (in the scale of Rs, 450-50-1,000) on the basis of the pay last drawn by them immediately before nationalization of their institutions plus any increment which may have accrued to them on or prior to 1-10-1972. On the 26th of September 1974 were framed rules under paragraph 13 of the Martial Law Regulation No, 118, known as Nationalized Colleges (Men and Women Sections) Teaching Posts Rules, 1974. The following cadres of service were created by these rules t (a) Principals of Degree Colleges and Professors. (b) Principal of Intermediate Colleges and Assistant Professors. (c) Lecturers. (d) Directors of Physical Education. (e) Librarians. ' The right of determining the number of posts in each cadre was retained by the Government. Rule 5 appointed all teachers of nationalised colleges whether principals of degree Colleges/Professors, Principals of Intermediate Colleges/Assistant Professors or Lecturers, only as Lecturers provided they were below the age of 58 years on the 31st of August 1973 and possessed qualifications and other conditions of eligibility prescribed by Government and the Government Colleges. Rule 6 provided for appointment to the posts of.- (a) Principals of Intermediate Colleges and Assistant Professors, and (b) Principals of Degree Colleges and Professors. ' Total number of posts of Principals of Intermediate Colleges and Assistant Professors were directed to be filled by selection from among the persons holding posts of Lecturers including those who were deemed to have been holding such posts in the nationalized Colleges and thereafter 75 per cent. Of the vacancies in the cadre were to be filled by selection from among the persons holding posts of Lecturers. Under these rules the remaining 25 per cent. Vacant posts shall stand abolished from the cadre and transferred to the appropriate cadre of Colleges maintained by Government. Similarly the total number of posts of Principals of degree Colleges and Professors
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were directed to be filled by selection from among the persons holding posts of Principals of Intermediate Colleges and Assistant Professors. Provision was also made for vacancies occurring in the cadre later on. 55 per cent. Of the vacancies are to be filled by selection and 45 per cent. Of the vacancies to be abolished from the cadre. Rule 7 deals with seniority. Writ Petitions Nos. 1176- S/1975, 2088-S/1974, 990-S/1974 and 920-S/1974, out of which arise L. P. As. Nos. 135, 136, 137 and 138 of 1975 respectively have been filed to challenge these rules on the same ground as the rules regarding the teachers of schools have been challenged. 11. The above writ petitions filed by Headmasters along with Writ Petitions Nos. 993-S/1974, 1199- S/1974, 531-S/1974, 2138-S/1974, 337-S/1975 and 501-S/1975 were dealt with together and were dismissed by the learned Judge in Chamber on the 21st of July 1975. Writ Petitions Nos. 920-S/1974, 990-S/1974, 2088-S/1974 and 1176-S11975 were dismissed by a common order passed on the 21st of July 1975 on the same ground on which the Headmasters' writ petitions were dismissed. 12. It was held by the learned Judge-in-Chamber that except in regard to the validity of the Rules of 1974, all other matters were within the exclusive jurisdiction of the Tribunal set up under the Punjab Administrative Tribunal Act, 1974 read with Article 212 of the Constitution. The learned Judge found that the above rules though ultra vires of Martial Law Regulation No, 118, could be framed under the provisions of Civil Servants Act, 1974 and could be treated to be valid under that provision but they could not be deemed to be valid under para. 13 of Martial Law Regulation No, 118. The learned Judge-in-Chamber took into consideration the provisions of Articles 240 of the Constitution and 280 (3) of the Interim Constitution. It was held that by virtue of Article 280 (3) of the Interim Constitution, Martial Law Regulation No, 118 was an existing law, and if rules bad been framed before the promulgation of the Constitution of 1973, these rules would also have continued to remain in force by virtue of the provisions of Article 241 of the Constitution of 1972. But these Rules could not be framed later under para. 13 of Martial Law Regulation No, 118 to determine the terms and conditions of the Civil Servants in view of the provisions of Article 240 cf the Constitution (1973) which provides such conditions to be determined by an Act of the Provincial Legislature. Martial Law Regulation No, 118 although held to have effect of a law as made by an appropriate Legislature, was held not to be an Act of the Provincial Assembly as contemplated by Article 240 ; it was treated an existing law only, a category different from an Act of the Provincial Assembly. Reference was made to Article 143 for justifying the distinction between an 'Act of Provincial Assembly' and an 'existing law'. It was, therefore, held that only those rules regulating the terms and conditions of service can be considered valid which are made under an Act of the Provincial Assembly. 13. After hearing the arguments of the learned counsel for the parties, I do not find myself in agreement with either of the two dicta laid down by the learned Judge-in-Chamber i,e,- (1) that the above rules are ultra virei, if considered to be rules under para. 13 of Martial Law Regulation No, 118 ; (2) that rules framed under one enactment can be deemed to be valid under another enactment. ' It may be stated that Mr. Mahmood Ali supported the first proposition but argued against the second one, while the counsel for the respondents challenged the first and justified the other proposition. 14. Reliance of the learned Judge-in-Chambers is mainly on Article 240 of the Constitution and Article 143 for a supposed distinction between an existing law and the law made by an act of Parliament or the Provincial Assembly. But in my view it is unnecessary to interpret the language of Article 240 of the Constitution by invoking the distinction drawn from Article 143. 15. Article 240 provides that subject to the Constitution, the appointments to and conditions of service of persons in the service of Pakistan, shall be determined in the case of services of persons and posts in connection with the affairs of a Province by or under an Act of the Provincial Assembly.
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16. Martial Law Regulation No, 118 was declared by Article 280 (3) of the Interim Constitution of 1972 "to have become an Act of the appropriate Legislature". It is not denied that the appropriate Legislature in respect of the matters dealt with in this appeal is the Provincial Assembly. Clearly, therefore, Article DO (3) of the Interim Constitution declared Martial Law Regulation No, 118 to be an Act of the Provincial Assembly. As an Act of the Provincial Assembly it has been continued as an existing law by Article 268 of the Constitution. Being a law specified in the Sixth Schedule its alteration, repeal or amendment is possible only with the previous oanction of the President or the Governor if power of President is delegated to him. Now it is an admitted fact that no adaptations have been made in this Regulation either by the President or the Governor, non any amendment has been made by the Legislature in para. 13 which deals with the rule-making power of the Governor. Pars. 13 of the Martial Law Regulation No, 118 is, therefore, an existing law. 17. Article 240 of the Lonstitution is subject to the other provisions of the Constitution. It cannot, therefore, be said that the Article has the effect of repealing by implication any other enactment dealing with the terms and conditions of civil servants. If the interpretation to the contrary be given to Article 240, the opening words "subject to the Constitution" in that Article will have to be treated as superfluous. This would be contrary to the well-settled principle of interpretation that in construing the provisions of a statute efforts should be made to avoid a construction which renders any part of the statute as redundant or surplus. As held in Rafi-ud-Din v. Chief Settlement and Rehabilitation Commissioner (1) : "No legislative enactment, according to the universally accepted principle, should be held to be redundant or superfluous, and efforts must be made by…
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