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Petitioner: Syed BASHIR AHMAD BOKHARI VS Respondent: PROVINCE OF THE PUNJAB THROUGH THE SECRETARY EDUCATION, PUNJAB, LAHORE
1980 P L C (C
1980 P L C (C. S.) 404
[Service Tribunal Punjab]
Present: M. Saleem Chaudhry, Chairman, S. Hafeez‑ur -Rehman and Zawar Hussain Malik, Members
Syed BASHIR AHMAD BOKHARI
Versus
PROVINCE OF THE PUNJAB THROUGH THE SECRETARY EDUCATION, PUNJAB, LAHORE AND 16 OTHERS
Appeal No. 331/780 of 1976, decided 4th May, 1980.
(a) Punjab Service Tribunals Act (IX of 1974)‑
‑‑ S. 4, proviso (a) read with Punjab Nationalised Schools (Men and Women Sections) Teaching Posts Rules, 1974‑Vires of Rules‑ Objection as to appeal being not maintainable because (1) no depart mental appeal or representation had been made and (2) impugned rules could not be equated with a final order‑Objection repelled‑ Held, appellants could not file any representation nor right of review available against decision of Government expressed in terms of impugned rules‑Rules, in such case, could be equated with a final order for purposes of appeal.
Fazal Elahi Ejaz v. Government of Punjab, P L D 1977 Lah. 549 rel.
(b) Martial Law Regulation, 1972 [C.M.L.A.'s]‑
‑‑ No. 118 read with Punjab Nationalised Schools (Men and Women Sections) Teaching Post Rules, 1974, r. 4‑Powers of framing rules under M.L.R. 118‑Restricted only to carry out purpose of M.L.R. regarding nationalization of educational institutions‑Provisions of M.L.R. 118 did not cover status of employees of schools and colleges‑Rules to extent of determining status of Headmasters, Head mistresses, Principals, Professors etc. held, ultra vires M.L.R. 118 --Such rules, further held, could not be deemed to have been framed under S. 23 of Punjab Civil Servants Act, 1974‑Headmasters and Headmistresses duly qualified and regularly appointed before 14th March 1972, held further also, could not be equated with Senior English Teachers‑Principals, Professors and Assistant Professors duly qualified and regularly appointed before 14th March, 1972 held further also, could not be equated with Lecturers‑Protection, however, held further also, not available to unqualified persons though appointed before 14th March, 1972, on ad hoc basis or as stop‑gap arrangement or being senior‑most simply put in charge or posted to work in their own pay after 1st October, 1972.
P L D 1977 Lah. 549 rel.
P L D 1958 Lah. 180 ; P L D 1961 S C 605 ; P L D 1975 S C 106; P L D 1964 S C 673; P L D 1965 Lah.147; P L D 1974 S C 124; PLD 1973 S C 230 and P L D 1952 Lah. 31 ref.
JUDGMENT
M. SALEEM CHAUDHRY (CHAIRMAN).‑‑These 52 appeals, 24 of college teachers and 28 of school teachers of the Nationalised Schools and Colleges under M. L. R. 118 by the Government of the Punjab involve the common question of law and facts and, therefore, disposed of by this single/consolidated judgment.
2. Briefly, the relevant facts of the case are that on 15th March, 1972, the Government of Pakistan announced its educational policy unfolding the scheme for the nationalisation of the privately managed Colleges and Schools in the country. It was followed by MLR 188 dated 1st April, 1972 as subsequently amended by MLR 188 (Punjab Amendment) Ordinance XVI of 1972 (published on 31st August 1973) and Act No. X of 1973 (published on 21st May, 1973) in order to provide legal cover to this policy. Under para. 4 of the MLR all privately managed colleges situate in the Province stood nationalised with effect from 1st September, 1972. 1n case of privately managed schools situated in the Province, Provincial Government was required to issue notification on/or after 1st October 1972 specifying the schools to be nationlised there under. The Governor of Punjab accordingly issued a Notification No. S O (NS)1‑2/72 dated 30th September 1972 under paragraph 5 of the MLR 118 to the effect that the privately managed Primary, Middle and High Schools as specified therein shall stand nationalised as from the forenoon of 1st October, 1972. Since para. 5 of MLR 118 provided for issuance of Notification on or after 1st October, 1972 therefore to give legal cover to the Notification dated 30th September, 1972, Punjab Ordinance Temporary Establishment Act VI of 1973 was enacted.
3. It is a common ground that all the teachers of the privately managed colleges and schools to whatever cadre they belong became Civil Servants with effect from the date of taking over of Colleges and Schools i.e. Ist September, 1972, and 1st October 1972, respectively. No doubt the Departmental stand before us was that the appellant became such emplo yees only in terms of formal Orders/Notifications issued by the authorities concerned.
4. Two Notifications were issued by the Governor of Punjab one regarding the Principals, Professors and Assistant Professors of Colleges and second in regard to Headmasters/Headmistresses on 24th October, 1972. The appointments of Headmasters/Headmistresses in the Schools under MLR 118 were notified on ad hoc 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 Govt. from taking any further action such as examining their suitability for appoint ment to these posts ;
(4) These appointments will last until their suitability is finally determined or they are replaced by suitable officers.
It may be noticed that the persons who did not have the prescribed qualification of B. A. B. Ed. or who had reached the age of superannua tion were not appointed by the above Notification. On 22nd May, 1974, the Director of Public Instructions Punjab issued Circular Letter No. 127/93/M B dated the 22nd play, 1974, the relevant portion of the same is as under :‑‑
"As you are already aware, the fixation of pay of those Senior English Teachers who were working as Heads of Nationalised High Schools or before 30th September, 1972, was deferred, pending determination of their seniority. As decided, a combined seniority list is to be prepared of all these Headmasters/Headmistresses of Nationalised High School with the Senior English Teachers of High Schools ; Headmasters/Headmistresses of Middle Schools and Head masters/Head mistresses 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, condoning gaps in service to the extent of 5 years. The Liaison Officers of District Pay Verification Committees may be asked to submit the lists before the 3rd June, 1974, with complete bio-data. The President of the District Nationalised 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."
In accordance with the instructions embodied in the Circular letter above the present appellants who were working as Headmasters/Headmistresses of High Schools were decategorised for the purpose of preparing the com bined seniority list of all Headmasters and Headmistresses of the High Schools alongwith the Senior English Teachers/Headmasters of Middle Schools thereby placing them in the same category. The above policy letter may be considered to be the direction for categorziation of the Headmasters/Headmistresses of privately managed schools whose appoint ments have not been notified by Notification dated 24th October 1972.
5. Similarly in the case of teachers employed in the Colleges, Notification was issued on 4th September 1972 creating the posts of Principals of Intermediate and Degree Colleges and Professors. The appointments of all the teachers working in the Colleges were notified. However, one of the conditions of their appointment was :‑
"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."
Again on 15th May, 1974 another Notification was issued by the Govern ment in partial modification of Notification dated 4th September 1972, and all other Notifications issued by the Government from time to time according to which the persons specified in Schedules 6A' and `B' appended to the aforesaid letter were appointed as Lecturers with effect from 1st September, 1972. However, it was provided that they were to continue to get the same pay as was drawn by them immediately before 1st September, 1972 and their pay was to be fixed in NPS No. 17.
6. Lastly on 26th September, 1974 the Governor of Punjab promul gated the Punjab Nationalised Schools (Men & Women) Section Teaching Rules, 1974.
In proviso to rule 4 (1) to the aforesaid Rules all persons holding the posts of Headmasters/Headmistresses of private schools at the time of nationalization possessing the qualification prescribed for the Senior English Teachers were deemed to have been appointed as Senior English Teachers. The other provisions in the aforesaid Rules related to the method of recruitment to the posts of Headmasters from amongst the teachers of Nationalised Schools on the basis of their seniority as Senior English Teachers. Similarly in the case of teachers working in the colleges vide rule 5 all the Principals of Degree Colleges/Professors, Principals of Intermediate Colleges/Assistant Professors who possessed the prescribed qualification and who were not superannuated were deemed to have been appointed as Lecturers with effect from 1st September, 1972.
7. The appellants claim that as Headmasters/Headmistresses of High Schools they held gazetted posts whereas the post of Senior English Teacher/Headmaster of Middle School was a non‑gazetted and inferior post. Similarly in the case of Assistant Professors, Professors and Principals they were decategorised as Lecturers for the purpose of making a joint seniority for the post of Assistant Professors, Professors and Principals of Intermediate and Degree Colleges.
8. The Learned Government Pleader Mr. A. G. Hamayun counsel for the respondents raised the following preliminary objections :‑
(1) No inter‑departmental appeal or representation was filed by the appellants under section 21 of the Punjab Civil Servants Act, therefore, the appeal was not maintainable and was hit by proviso (u) to section 4 of the Punjab Service Tribunal Act, 1974 ;
(2) That the Rules dated 26th September, 1974, as framed by the Provincial Government could not be equated with a final order as envisaged in section 4 of the Punjab Service Tribunal Act, therefore, the appeal was not maintainable ;
(3) That in any case the impugned appointment of the appellants dated back to October, 1972 and the appeals filed in 1976 and 1978 were badly barred by time ; and
(4) That the appellants could not be treated as aggrieved persons.
The appellants controverted the above objections with the submissions that since the rules impugned in these appeals have been framed by the Provincial Government, therefore, no representation could be made under section 21 which prescribed such representation to higher authority. Only a review petition could be moved but law is well settled that a review is creation of the statute and the rules did not provide for review to the Government in such cases. As regards the objection that the rules could not be treated as final order fur the purpose of section 4 of Punjab Service Tribunal Act, appellants placed reliance upon the finding given by the Division Bench of the Lahore High Curt in Fazal Elahi Ejaz v. Government of Punjab (P L D 197 7 Lah. 549) (relevant at 567) that : ‑‑
"If an order can be treated to be a rule I do not see any earthly reason why the converse should not be true if what is germane to an order has been expressed in the form of a rule. If a rule or part of it is in substance an order expressed and notified to the manner required for an order, for all practical purposes including an appeal it can be treated ass an order."
As regard time‑barred, the appellants submitted that in 1972 there was no Tribunal. In any case there were serious doubts as to the competence of the Tribunal to declare the rule as ultra vires. It was only after at belong drawn proceeding on this issue before the High Court and also fore the Supreme Court of Pakistan that the matter was finally concluded. In ally case, in terms of section 14 of the Limitation Act the delay, if any, could be condoned. As regards the last objection, the appellants argued that the respondents have not been able to disclose any valid reason for not treating the appellants as aggrieved persons.
10. After hearing both the parties we are inclined to agree with the appellants. As regards the first point the respondents have failed to show to us that there was any right of review/representation available to the appellants against the impugned rules dated 26th September, 1974. We are clearly of the opinion that after the decision by the Punjab Govern ment expressed in terms of 1974 Rules the appellants could not file any representation nor right of review was available to them. We also uphold the plea of the appellants that the rules in this case can be equated with the impugned order as already held by the Lahore High Court, the ruling cited above. The respondents have not produced any authority to the contrary nor have they been able to advance any cogent ground to per suade us to hold otherwise. We accordingly repel this objection also. As regards the objection as to limitation, we again find considerable force in the plea of the appellants that the matter was not free from doubt. It was only after the decision of the Supreme Court that the controversy was set at rest that this Tribunal has jurisdiction to adjudicate upon the vires of the rules. As regards the last objection of the Government Pleader we consider it appropriate to deal this aspect of the case along with the merits of the case. Some of the appellants were appointed and function ing as such before the nationalization while the other persons were appointed after the nationalization and some of them were ineligi ble as they lacked the prescribed qualification and come were given mere acting charge. Thus all the cases were not identical and the finding had to the different.
11. On merits, Mr. Shahzad Jehangir, the learned counsel appear ing for the Assistant Professors/Professors/Principals raised the following contentions :‑‑‑
(1) That the provisions of para. 7 (2) of M. L. R. 118 protected both pay and status of the appellants and they were entitled to conti nue service after nationalisation on same terms and conditions as were enjoyed by them before nationalization. The learned counsel in this behalf relied upon the decision of the Lahore High Court reported as P L D 1977 Lah. 549 : relevant at page 574 para. 44).
The only other interpretation possible is to categorise teachers in accordance with their status and guarantee of scales of pay paid to the teachers of comparable status in Government service subject to the teachers being qualified to hold that post in Government service. While fixing the pay therefore reference must be had to the qualifications.
AND also (at page 575 para. 50):
"The interpretation canvassed by Mr. Mahmood Ali is the only interpretation possible. It is to the effect that teachers of a class in the privately managed schools should retain their status after nationalization and the question of qualification; seniority and experience should be taken under consideration with respect to the teachers of that class only. This is in accord with the object of this registration. Despite the departure made by the Government from this principle, it appears clear that originally this was the thinking and interpretation of the Government.
Relying upon the above Mr. Shahzad Jehangir vehemently contended that the guarantee of scale of pay as provided in para. 7(2) of M. L. R. 118 implied the guarantee in respect of status comparable to the Government employees with similar experience, seniority and qualifications. He also relied upon Article 275 of the Constitution of Pakistan (1973) which is to the following effect :‑
"275.‑(1) Subject to the Constitution and until law is made under Article 240 any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to him under the Interim Constitution of the Islamic Republic of Pakistan immediately before that day."
Thus the learned counsel argued that appellants were entitled to con tinue as Principals/Professors/Assistant Professors on the same terms and conditions:
(ii) That the Punjab Nationalization of Schools (Men and Women Section) Teaching Posts Rules, 1974 in so far it purported to appoint the appellants enblock as Lecturers in N.P.S. 17 it had the effect of reducing them in rank which could not be validly done by the Department particularly when no show‑cause notice has been served upon the appellants.
(iii) That the appellants enjoyed the status of Assistant Professors/Professors/Principals prior to 1st September, 1972:
In so far as the rules published on 26th September, 1974 had the effect of denying the aforesaid status to the appellants the same were clearly retrospective in operation. The law is well settled that the rules could not operate retrospectively. The learned counsel in this regard cited:
(1) P L D 1958 Lah. 180
(2) P L D 1977 Lah. 549
(3) P L D 1961 S C 605
(4) P L D 1975 S C 106
(iv) That the Rules of 1974 were ultra vires the Article 241 of the Constitution. According to the learned counsel under Article 240 the terms and conditions of service of Provincial servants had to be regulated by law made by Provincial Assembly and the rules have to be framed under the Act of the Provincial Assembly and till such time the existing rules were to continue in terms of Article 241 of the Constitution. The contention of the learned counsel was that the 1974 Rules having been issued under para. 13 of M. L. R. 118 could not be treated to have been framed by or under the Act of the Provincial Assembly.
(v) That the case of respondents consistently had been that the Regulation as such did not nationalise the services of the appel lants nor the M. L. R. 118 in any way related to the status of the appellants. Thus para. 13 which authorised the Provincial Government to frame rules for carrying out the purpose of this Regulation could not conceivably authorise the framing of rules affecting the status of the appellants.
(vi) The learned counsel contended that even the instruction/notifi cation dated 15th May, 1974 issued by the D. P. I. Punjab was not supported by any law.
With the above contentions the learned counsel pressed for accept ance of the appeals.
12. Ch. Hamiduddin, Advocate, appearing for teachers submitted that M. L. R. 118 which endeavoured to implement the Education policy was published on Ist April, 1972 and the notification for nationalization of schools was published on 30th September, 1972 and the notification nationalizing the services of the appellants was issued on 24th October, 1972. On 22nd May, 1974 the D. P. I. issued orders categorising the appellants Headmasters/Headmistresses as S. E. T. and eventually the Punjab Nationalization of Schools (Teaching Posts) Rules, 1974 were noti fied on 26th September, 1974 which had the similar effect. Writ petition was filed on 18th February 1975 which was rejected on 21st July, 1975 and the I. C. A. was also rejected on 14th October, 1976 as incompetent. Present appeal was filed on 11th November, 1976. The department on 5th August, 1976 had provisionally allowed N. P. S. 17 to the appellants. In this appeal they assailed the vires of Rules dated 26th September, 1974 and the orders dated 6th August, 1976 allowing N. P. S. 17 provisionally to the appellants. The appellants particularly questioned the vires of rule 4 of the 1974 Teaching Rules which was as under :‑
"4.‑(1) Any person who is in the service of a nationalized school on or before the 4th of March, 1972 and continued in such service till 31st August, 1972, was below the age of 58 years on the later date and is a citizen of Pakistan possessing the qualifications and other conditions of eligibility prescribed by Government for the teachers of the schools maintained by it, shall be deemed to have been appointed, to the post, other than the post of Head master or Headmistress of a High School, which he was holding at the time of the nationalization of the schools:
Provided that a person holding the post of Headmaster or Head mistress of a High School at the time of nationalization of the school, and possessing the qualification prescribed for the post of Senior English Teacher shall be deemed to have been appointed as Senior English Teacher and the posts of Headmasters or Head mistresses shall be filled in accordance with these Rules.
(2) Total number of posts of Headmasters or Headmistresses of High Schools as terminated immediately before coming into force of those rules 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 under these Rules and thereafter 85 percent. 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 percent. 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.
(3) Total vacancies in the posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Com merce) and Headmasters of Middle Schools, existing immediately before coming into force of these rules shall be filled by promotion from among the persons who possess the qualifications prescribed for the post of Senior English Teacher but are holding lower posts under these rules and thereafter 50 percent. of the vacancies occurring in such posts shall be filled by promotion from among the persons referred to above and the remaining 50 percent. of such vacant posts shall stand abolished from the cadre and stand transferred to the appropriate cadre of the teachers of the School maintained by the Government.
(4) The posts of S. V. Ts.: C. T s., and J. V. C s., falling vacant in a cadre stand abolished from the cadre and transferred to the appropriate cadre of teachers of the Schools maintained by the Government."
According to the learned counsel the aforesaid Rules are ultra vires of M. L. R. 118 which guaranteed pay and status to the appellants and Article 268 of the Constitution which guaranteed the right to continue service in the same terms and conditions. He argued that the enblock appointment of the appellants as S. E. Ts., was wholly unauthorised and unwarranted. He also reiterated the arguments advanced by Mr. Shahzad Jehangir that the Rules framed under para. 13 of the M. L. R. 118 travel beyond the scope of the Regulation. The appellants submitted that in September, 1974 the terms and conditions of the appellants were to be governed by the Civil Servants Act, 1974 or the Rules framed thereunder which had come into force long ago. The learned counsel went on to contend that the nationalization in its scope also included the nationaliza tion of staff and students. He relied upon the definition of School as appeared at page 1478 of the Corpus Juris:
"The word `School' is a generic term of many definitions, denoting an institution or place for instructions or education the collective body of instructors and pupils in any such place or institution. The number of persons being taught does not deter mine whether the place is a School."
The learned counsel relying upon the above definition submitted that the School included the staff and the students. He submitted that Schools are nationalized vide notification dated 30th September, 1972 (effective from 1st October, 1972), services of the appellants were nation alized vide Notification dated 24th October, 1972 and service books were directed to be prepared on 22nd March, 1973 and services of about 578 Headmasters were nationalized vide Notification dated 26th February, 1974. Thus the appellants were entitled to continue in service as Head masters without any interference. He heavily relied upon para. 7 read with para. 5 of M. L. R 118…
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