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Petitioner: RUKHSANA, TUFAIL VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD
1994 P L C (C
1994 P L C (C.S.) 384
[Federal Service Tribunal]
Present: Abdul Razzaq A. Thahim, Chairman and Muhammad Ismail, Member
Mrs. RUKHSANA TUFAIL and others
versus
SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and others
Appeals Nos. 267(R), 268(R), 269(R), 270(R) and 271(R) of 1993, decided on 11th November, 1993.
(a) Service Tribunals Act (LXX of 1973)‑‑‑‑
‑‑S. 4‑‑‑Civil Servants Act (LXXI of 1973), S. 8‑‑‑Appeal‑‑‑Competency‑‑ Seniority list which employees who were selected and appointed as Vice Principals by way of direct recruitment in BPS‑ 18 were merged in category of teachers, had been challenged in appeal‑‑‑Objection to competency of appeal had been raised on behalf of respondents contending that list challenged 'in appeal being provisional seniority list, Service Tribunal, in absence of any final order of Authority, could not adjudicate upon grievance of appellants/employees‑‑‑Authority stated that representations made by employees against list in dispute were pending consideration and it could not be said as to when those representations could be decided‑‑‑Objection with regard to competency of appeal was repelled on two grounds, firstly that seniority list was being acted upon and, promotions were being made on that basis against which some appeals were pending for adjudication before Tribunal and secondly merger of various categories of teaching staff in one cadre was totally in disregard of provisions of Civil Servants Act, 1973 and was ab initio illegal.
PLD 1981 SC 612; Federation of Pakistan v. Rais Khan 1993 SCMR 609 and 1984 PLC (C.S.) 546 ref.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Civil Servants Act (LXXI of 1973), S. 8‑‑‑Islamabad Model School for Boys (Service) Rules, 1983, R.11‑‑‑Civil Servants (Seniority) Rules, 1993, Rr. 2, 3, 4 & 7‑‑‑Seniority‑‑‑Determination of‑‑‑Employees were directly recruited as Vice‑Principals in BPS‑18 after due process of selection by Committee‑‑ Seniority of employees previously was maintained separately according to grade, cadre and post but impugned seniority list issued later showed employees as teachers despite they had never been teachers or senior teachers‑‑‑Employees had not challenged seniority, but their contention was of legal nature as previous seniority lists were being maintained cadre‑wise separately‑‑ Employees had contended that as they had directly been recruited as Vice Principals in BPS‑18, merger of their post .with category of teachers, was devoid of Rules and general principles of seniority‑‑‑Post of Vice‑Principal, carried more responsibility on academic as well as administrative matters and that post could not be equated with the post of teachers in which their seniority was proposed whereas of Headmistress was maintained separately‑‑ Seniority according to Rules was to be determined with reference to service cadre of post and there was no concept of merger of cadre of various categories of staff‑‑‑Employees who continued to be Vice‑Principals in separate cadre and not as teachers or senior teachers, their seniority could not be merged with teachers or senior teachers‑‑‑Tribunal accepting appeal of employees directed that seniority list should be continued to be maintained separately as before :‑‑‑Action of Authority merging employees who were Vice‑Principals in seniority list of teachers was declared illegal and being violative of Rules and terms and conditions of service of employees.
PLD 1990 SC 612; PLD 1968 Azad J&K 64; 1991 SCMR 1348; 1991 SCMR 2216; 1993 SCMR 1119; 1993 PLC (C.S.) 1201 and 1984 PLC (C.S.) 54E ref.
Dr. G.S. Khan for Appellants. .
Sheikh Riazul Haq, Standing Counsel for the Government.
Fazal Elahi Siddiqi on behalf of Private Respondents Nos. 4, 5, 7, 9 to 14, 16, 18 and 19 (in Appeal No. 267(R)/93; 4, 5, 7, 9 to 12, 17, 23 and 32 (in Appeal No. 268(R)/93); 4 to 8 (in Appeal No. 269(R)/93 and 4 to 14 and 16 to 30 (in Appeals Nos. 270 and 271(R)/93).
Qazi Abdur Rashid on behalf of Private Respondents Nos. 15, 18, 22 and 23 (in Appeal No. 267(R)/93) and 13, 16, 20, 21 and 39 to 42 (in Appeal No. 269(R)/93).
Dates of hearing: 27th and 28th October, 1993.
JUDGMENT
ABDUL RAZZAQ A. THAHIM (CHAIRMAN): ‑‑Briefly the facts are that the appellants namely Mrs.Rukhsana Tufail (Appeal No. 267(R)/93); Miss. Shaista Pirzada (Appeal No. 268(R)/93); Mr. Muhammad Rafiq Malik (Appeal No.269(R) 93) Mr. Abdul Rehman Memon (Appeal No.270 (R)/93) and Mr. Anwar Ali Khan (Appeal No. 271 (R)/93) were selected and appointed as Vice‑Principals in the Model Colleges for Girls and Boys of Islamabad respectively under the Federal Directorate of Education by way of, direct requirement in BPS‑18. The seniority of the appellants was previously maintained separately according to grade and posts but in the year 1993 a consolidated seniority list of teachers (Female/Male) in PBS‑18 was issued on 22‑4‑1993 and was circulated amongst the Teaching Staff (B‑18). , The representations were invited to examine their grievances. There are two combined seniority lists of Teachers (B‑18) Male and Female respectively, whereby names of the appellants are also given in the list of the Teachers in B‑18. The appellants made representations that they were appointed directly under different posts and cadre of Vice‑Principals and, therefore, their names have wrongly been included in the seniority list and they have been shown as Teachers and their inclusion in the list of teachers out of cadre is contrary to the rules and void and as such may be set aside. The appellants have not challenged the seniority but their contention is of legal nature as previously seniority lists were being maintained cadre‑wise separately and as such the very basis of circulating the list is incorrect and i$ against law and terms and conditions of their service. They have filed these appeals under section 4 of the Service Tribunals Act, 1973 after exhausting departmental remedy.
2. Since common points of law and facts are involved in all these appeals, we propose to dispose of all the five appeals by this single judgment.
Appeal No 267(R)/93.‑‑‑Appellant, Mrs. Rukhsana Tufail was working as Principal, F.G. Public School, Gujranwala Cantt. She applied for the post of Vice‑Principal (B‑18) in Islamabad Model College for Girls in pursuance of advertisement and was selected and appointed as Vice‑Principal vide order dated 21‑1‑1984 against a vacant post in one of Girls College F‑7/4, Islamabad. She was also allowed charge allowance of Rs.150 per month‑vide order dated 8‑6‑1991. '
Appeal No. 268(R)/93.‑‑‑Appellant, Miss. Shaista Pirzada was working as Senior Teacher/Incharge Junior Section, Public School, Sukkur in BPS‑18. She applied for post of Vice‑Principal in pursuance of advertisement, was selected and posted as Vice‑Principal, Islamabad Model College for Girls. F‑6/2, Islamabad in B‑18 vide office order dated 25‑4‑1990. She was also allowed charge allowance of Rs.150.
Anneal No 269(R)/93:-----Appellant, Mr. Muhammad Rafiq Malik was working as Senior Teacher in Islamabad College for Boys in BPS‑17. He applied for the post of Vice‑Principal and was selected and was appointed as Vice‑Principal in B‑18 vide order dated 31‑12‑1983 in the Islamabad Model College for Boys, F‑7/3. He was also allowed charge allowance of Rs.150.
Appeal No. 270(R)/93: ‑‑Appellant, Mr. Abdul Rehman Memon was working as Senior Teacher in BPS‑17 in Islamabad Model College for Boys, F‑7/3, Islamabad. He applied for the post of Vice‑Principal and was selected. He was posted as Vice‑Principal, Islamabad Model College for Boys, G‑10/4 in BPS‑18 vide office order dated 9‑7‑1989. He was also allowed charge allowance of ks.150 per month.
Appeal No. 271(R)/93,‑‑‑Appellant. Mr, Anwar Ali Khan was directly appointed as Vice‑Principal (B‑18) and posted as such in Islamabad Model College for Boys, F‑8/4, vide office order dated 9‑7‑1989. He has not given previous history of his service career.
3. In all these five appeals, the Secretary, Establishment Division, the Secretary, Ministry of Education and the Director‑General, Federal Government Educational Institutions, Islamabad, have been made as respondents Nos. 1 to 3 and senior teachers/teachers have been arrayed as private respondents. The Establishment Division has not filed comments. The Ministry of Education has filed comments in Appeal No. 269(R)/93 and sent common comments in other Appeals Nos. 267, 268, 27,0 and 271(R)/93. Likewise the private respondents have filed comments through their Advocates and we have heard the learned counsel for both the parties.
4. Dr. G.S. Khan, Advocate has appeared in all the five appeals on behalf of the appellants. It is argued that the appellants were directly recruited as Vice‑Principal in B‑18 after due process of selection by the Committee. Therefore, the merger of the post of Vice‑Principal with the category of Teachers is devoid of the rules and the general principles of seniority. He has argued that before being declared as `civil servants' on the pronouncement of Supreme Court they were, governed by the rules framed by the Board of Governors in the year 1983 and 1988. Therefore, their terms and conditions of service could not be changed to their disadvantage. It is submitted that even otherwise under the Civil Servants Act, 1973, seniority is to be determined in a service, cadre or post. The appellants having been appointed as V.Ps. have never been Teachers or senior Teachers and, therefore, their seniority cannot be merged with the Senior Teachers and it is violative of the rules. It is argued that prior to declaration of civil servants, separate seniority list of Vice- Principals was being maintained by the Department, as is evident from the list (page 43‑A of the memo of Appeal) which contained the following names only:
(1) Mrs. Rukhsana Tufail
(2) Mrs. Fatima Badar
(3) Mrs. Zubunnisa Muzaffar Malik
(4) Mrs. Rehana Riaz Wasti
(5) Miss Shaista Pirzada and likewise of Male V.Ps.
and this act of the respondents 2 and 3 is in consistent with the earlier stand taken by them with mala ride intention to favour a particular class of people. It is contended that the appellants continue to be Vice‑Principals in the separate, cadre and not as Teachers or Senior Teachers, therefore, the merger of seniority lists of the appellants is illegal. He has referred to the cases reported in PLD 1990 SC 612; PLD 1968 (AJK) 64; 1991 SCMR 1348 and 2216; 1993 SCMR 1119; 1993 PLC (C.S.) 1201 and 1984 PLC (C.S.) 546. It is argued that appellants were directly recruited as Vice‑Principals and they are not promotees. It is argued that there is discrimination as seniority of Head Mistress has not been merged with Teachers and merger of seniority of V.Ps. is clearly with mala fide.
5. Mr. Zakauallah Jan, Section Officer, appeared on behalf of the Establishment Division, submitted that Establishment Division is pro forma respondent, therefore, comments have not been filed as impugned action has been taken by the Ministry of Education without consulting the Establishment Division.
6. Mr. Qazi Abdur Rashid, learned Advocate has appeared on behalf of some of the private respondents in the appeals and referred to PLD 1981 SC 612 and submitted that the Tribunal in the absence of any final order of departmental authority cannot adjudicate upon the grievance of the appellants as it is a provisional seniority list which has been impugned before the Tribunal. It is argued that the respondents for whom he is appearing have filed representations against the impugned seniority list and no decision has yet been taken by the Ministry of Education and representations are still pending. He has given the entire history of the appointments made in the Islamabad Model Schools/Colleges and argued that in 1966 all the teachers were appointed in Grade‑16 and 17 and finally in the year 1982, 25% of the posts were upgraded and some of the incumbents were placed in Grade‑18 illegally, and their cases were not referred to Selection Committee whereas his respondents applied through proper channel, in pursuance of the advertisement, and were selected by the Selection Committee and were made regular. His grievance is that appointments of so many personnel, is still illegal having not been regularised and they cannot reckon seniority over and above his respondents. It is argued that 60% posts are selection posts for which selection could be made on the basis of merit and not otherwise and promotions of such extra 27 persons being illegal and were in fact ex‑gratia favour, which creates no right whatsoever. He has argued that injustice has been done to the Senior Teachers and the wrong done may be rectified now as these are the cases of clear favouritism. He has annexed a copy of the representation dated 9‑5‑1993 made by Mrs. Razia Rashid to the Secretary, Ministry of Education. He also urged that several persons did not appear before the Selection Committee and according to him the names of 22 teachers be eliminated from the impugned seniority list of teachers.
7. Mr. Fazal Elahi Siddiqi, Advocate, representing some . of private respondents has raised preliminary objection that this appeal is premature and since it is provisional seniority list, the appeals are incompetent in view of the law laid down by the Supreme Court in the case reported in PLD 1981 SC 612. He has argued on the merits and submitted that in the year 1982, 25% of the posts of Senior Teachers in B‑17 were upgraded to B‑18 and post of Vice -Principal which is in B‑18, shall stand excluded. As such, there exists no post of Vice‑Principal since 1982 under the 1983 Rules, made by the Board of Governors and there are only posts of Senior Teachers. Therefore, the department has rightly prepared the provisional seniority list of Teachers. With regard to 1983 and 1988 Rules, he stated that it is for the Department to reply. He further stated that the appellants in view of their dates of appointments have rightly been given proper place in the seniority list.. He has argued that grant of charge allowance of Rs.150 does not put the appellants in higher position as Vice‑Principal is merely a Senior Teacher in B‑18. He argued that on assumption of the character of `civil servant', the employees come under the purview of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and there is neither a post of Principal nor that of Vice‑Principal, but there is only Lecturer (B‑17), Assistant Professor (B‑18) and Associate Professor (B‑19) and Professor (B‑20). Thus there is no concept of Vice‑Principal in these rules.
8. Mr. M. Dawood Khan, Asstt. Educational Advisor appeared on behalf of the Ministry of Education and submitted that representations against the provisional seniority list are pending consideration under the Ministry of Education, but he cannot say when these representations could be decided. In the comments filed by Ministry of Education in M.P. 159/93 in Appeal No.267(R)/93, it has been stated that:
"According to 4‑tier service formula and the recruitment rules framed under it and approved by the Establishment Division, the post of 'Principal (being a promotion post) is required to be filled in by the Senior Teachers and not by the Vice‑Principals who have become surplus after introduction of the said service structure. However, in order to avoid abolishing of this post, the Vice‑Principals have been placed at the appropriate places in the 4‑tier service structure meant for only teaching staff."
In the comments to the main Appeals Nos. 267, 268, 270 and 271(R) of 1993, it has been stated in paragraphs Nos. 3, 9 and 11 as under:‑‑
"3. (i) The posts of Vice‑Principal/Headmistress and Sr. Teachers are in B‑18. As regards the post of Headmistress B‑18, the position is clear, that it is meant for Junior Section, whose seniority list is being maintained separately. As per service rules of Model Institution prior to 1988, the post of V.P. B‑18 was for direct recruitment, however, according to Service Rules, 1988, 50% of the post of V.Ps. were required to be filled by promotion' from amongst the senior teacher and the remaining 50% by direct appointment.
(ii) The senior teacher B‑18 (S.G.) is a misnomer and is not synonymous to the selection grade of the Government. For all practical purposes, this has always been treated as regular B‑18.
(iii) After declaring employees of the Model Colleges as civil servants the post of V.P. was to be abolished as is done in other F.G. Colleges.
(iv) The terms and conditions mentioned by the appellant were offered by the defunct Board of Governors. Now the status has been changed and employees are governed by Civil Servants Act, 1973.
9. As per Four Tier Service Structure, the post of V.P./Sr. Teacher (B‑18) have been redesignated as Asstt. Professor (B‑18). The competent authority has redesignated a large number of Sr. Teacher B‑18 (S.G.) as Asstt. Professor since 1987 and no representation was received by the Ministry of Education.
11. The seniority, of all the officers including the appellant will be assigned according to the rules of seniority after getting the approval of the competent authority."
While filing the comments in Appeal No. 269(R)/93, the Ministry of Education vide paragraph 9, has stated that with the change from Public School System to Governmental Institutions, abolition of the post of V.P. was imperative and if they were not given the advantage of only losing their administrative position with somewhat of seniority, the other alternative could have been more serious for what was done would have been that they would have become surplus in the new fangled set up. It is stated that combined seniority list in view of the above facts by merger of two cadre has been done legally. He has relied on proposed Rules of 1993.
9. Now we proceed to deal with the legal objection taken by the respondents that it is still a provisional seniority list and appeals are not competent. This is not the only question which is to be considered here. We asked the representative of the Ministry of Education to make a statement as to when the seniority lists would be finalised after examining the representations invited by them, to which he replied that he cannot make any statement as there were so many complications and the recruitment rules were yet to be framed. Two questions which are to be resolved in these appeals; are firstly the seniority list which has been framed by the department by which only V.Ps. names have been included in the list of Teachers and merged their cadre and posts whereas seniority list of Headmistress, according to their posts and cadre has been maintained separately. This fact has been admitted in comments by the Ministry of Education is para. 3 reproduced above. The contention of the appellants is that by merging their names in one combined seniority list their terms and conditions of service have been violated and they need protection of their rights according to law, Mr. Qazi Abdur Rashid, the learned counsel appearing for some of the private respondents inter se has also challenged the impugned seniority list that there are about 22 persons whose appointments have not been regularised and as such they are not entitled to be included in the seniority list and to that extent, we are inclined to accept this contention that final seniority list with regard to that category is yet to be reopened and settled. Though department very tactfully issued a seniority list not showing word "provisional" and invited representations stating therein that Ministry's officials will visit each Institution and examine their representations and take decision. With regard to legal position, the case of appellants (Vice -Principals) is that under section 8 of the Civil Servants Act, 1973, their seniority has unnecessarily been merged with the teachers as their cadre is different for which they were directly recruited and regularly appointed. Let us take up the case of appellants first as entire submissions are of legal nature and they have challenged the merger in the list on point of law. All the five appellants were appointed by direct recruitment in pursuance of the advertisement as Vice- Principals in BPS‑18 and their dates of appointments are:
1. Mrs. Rukhsana Tufail 21‑1‑1984
2. Miss Shaista Pirzada 25‑4‑1990
3. Mr. Muhammad Rafiq Malik 31‑12‑1983
4. Mr. Abdul Rehman Memon 9‑7‑1989
5. Mr. Anwar Ali Khan 9‑7‑1989
Mrs. Rukhsana Tufail and Mr. Muhammad Rafiq. Malik were thus appointed as Vice‑Principals in B‑18 under the provisions of 1983 Rules, which were framed by the Board of Governors of the Islamabad Model Schools for Boys under the Resolution dated 5th April, 1966 and were published in the Gazette of Pakistan dated 6th August, 1983 known as "Islamabad Model School for Boys (Service) Rules, 1983" and Rule 11 thereof relates to `Seniority' and is reproduced hereunder:
"Seniority : ‑(1) Seniority of employees shall be maintained separately for each cadre and shall be determined with reference to the date of regular appointment in the cadre.
(2) Employees promoted to a higher grade in a batch shall retain their seniority in the lower grade.
(3) The employees promoted to a higher grade in a calendar year shall rank senior to employees directly recruited to that grade in the same calendar year".
Under these rules, there is, also provision of Vice‑Principal and Principal but no quota was fixed for promotee and direct recruit in 1983 Rules when Mrs. Rukhsana Tufail and Mr. Muhammad Rafiq Malik were appointed before 1988. Miss Shaista Pirzada and M/s. Abdul Rehman Memon and Anwar Ali Khan having been appointed subsequently were governed by the 1988 Rules known as "Islamabad Model Schools/College Employees (Services) Regulations, 1988". According. to these rules, 50% of the posts of Vice Principals Headmistress were to be filled by promotion or transfer and remaining by direct recruitment in B‑18 having (1) 10 years teaching cum administrative experience in a recognised institution, (2) Experience of organising an educational institution including formulation of programmers of study and school schedules and experience of games and extra curricular activities, having MA./M.Sc. at least 2nd Division, B.Ed./Masters Degree in Education, M.Ed. 2nd Division and 35 years age and minimum qualification for Head Masters (B‑18) B.A./B.Sc. at least 2nd Division and B.Ed./M.Ed. at least 2nd Division and some experience as that of Vice‑Principal. As such, for post of Vice‑Principal MA./M.Sc. is must, whereas for Head Mistresses BA./B.Sc. There is clear distinction in each category. The matter does not end here. In 1983 and 1988 Islamabad Model School and Colleges (Service) Regulation, the Vice‑Principals were designated as Authorised Officer for the purpose of disciplinary proceedings and with regard to Confidential Reports from B‑1 to B‑16 they were the initiating officers whereas Principals Countersigning Officers and same was position of Rules of 1983 where .Principals were initiating officer for clerical staff B‑1 to 15 and clerical staff and clearly mentioned the posts of Vice‑Principal (Administrative and Academic). As stated above the Principal and Vice‑Principal were drawing Rs.150 as charge allowance. Thus post of Vice‑Principal, carries more responsibilities on Academic as well as Administrative matters as this post cannot be equated with Teachers in which their seniority is proposed whereas cadre of Headmistress is maintained separately.
10. The respondent Education Ministry rightly issued separate seniority lists of Vice‑Principals and teachers upto 1992 which has never been challenged by the respondents‑Teachers Male/Female. This has not been controverted by the department and it was rightly done but thereafter they being declared civil servants, their cadre and posts have been changed which is clearly in violation of 1983 and 1988 Rules and section 8 of Civil Servants Act, 1973 when terms and conditions of Headmistress as Lecturer has not been changed.
11. All the Islamabad Model Schools/Colleges were being run by the Board of Governors but on the pronouncement of the Hon'ble Supreme Court's decision reported in PLD 1990 SC 612, the employees of these institutions were declared `civil servants'. Therefore, the Ministry of Education in pursuance of sub‑rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, framed "draft Rules" providing for method of appointment, qualification, experience, age limits and other conditions for appointment in Islamabad Model Colleges for Boys/Girls under the Islamabad Model Colleges Date: whereby the entire nomenclature of the posts which existed earlier since its inception was changed. Therefore, we will have to revert to section 8 of the Civil Servants Act, 1973 which reads as under:
"8. Seniority,.‑‑(1) for proper administration of a…
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