Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SHAMIM MUSTAFA ANSARI AND 170 Other VS Respondent: GOVERNMENT OF PUNJAB JUDGMENT
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan Title:SHAMIM MUSTAFA ANSARI AND 170 Other vs GOVERNMENT OF PUNJAB
JUDGMENT
Reported As: 1972 PLC 590 Result: case is made Judgment JUDGMENT The petitioners who are 171 In number were appointed as Assistant District Inspectors of Schools on various dates from 13-6-1938 to 6-11-1967 as shown in the "List" filed in the form of Annex. "P/1" alongwith the writ petition. From the point of view of their dates of appointments they can be divided into three periods, namely, (a) Pre-1947 (i.e., Pre-Independence) employees ; (b) Post- Independence employees (i.e.. Appointed after Independence) but before the establishment of erstwhile Province of West Pakistan. Namely 14-10-1955; (c) Post-One Unit Employees i.e., appointed after the establishment of erstwhile Province of West Pakistan. From the point of view of service rules again they can be divided into three categories, namely, (i) those appointed in the Bahawalpur State, under the law and rules of that State (not produced before me) (ii) those appointed in the Punjab under the Punjab Subordinate Educational Service Rules, 1937 (hereinafter called as 1937-Rules) and (i.e) those appointed under the West Pakistan Education Department Subordinate Regional Service (Administrative Branch) (Men's Section) Rules, 1962 which were promulgated by the then Governor of the West Pakistan on 11-10-1962 (hereinafter called as 1962- Rules). 2. On 16-7-1971, the Government of the Punjab organised the service in some respect and made a policy which is contained in the Education Department Circular Letter No. S.C. (S.R) 1/22-71, of the said date (copy Annex. P/8), which is reproduced below for facility of reference :- "To (1) The Director of Education, Lahore Region, Lahore.
---
## Page 2
(2) Director of Education, Rawalpindi Region, Rawalpindi. Subject :-Fixation. Of Tenure for the posts of District Inspectors/Inspectress of Schools and Assistant District Inspec--tors/Inspectress of Schools in the Education Department. I am directed to say that the Provincial Government has had under close consideration the question of the tenure of appoint--ments to the posts of District Inspectors/Inspectresses and Assis--tant District Inspectors/Inspectresses for some the past. 2. This consideration was originally motivated by all kinds of complaints that were received, wherever District Inspectors of Schools and Assistant District Inspectors of Schools stayed atone place for inordinately long periods of the. Thus, lengthy stays encouraged the development of vested interests etc. Involvement of Government servants in local factions and generally militated against public interest. 3. Further, it was found that it was generally in the interest of the profession that teachers frequently changed responsibilities between inspection and administration on the one side and on the other and gain experience both as teachers/academicians and Inspectors/Supervisors. Such changes of assignments were cal--culated to provide a bird's eye view of perspective of both sides of the profession with opportunities to develop well-founded executive expereinces and professional skills. The practice was found to be prevalant in most countries of the world. 4. If a tenure is fixed and regular changes take place, a lot of frustration and discontentment in the Education Service would be overcome and a large number of teachers would be able to share the opportunities available for teaching, administration and inspection. The terminal changes of personnel from administra--tion to teaching and from teaching to administration was also calculated to freshen the atmosphere at regular intervals and prevent decay and stagnation taking root in institutions and districts. 5. In any case a period of four years is long enough to make a contribution, by one individual at one place. To ensure the maximum benefits, it would of course, be necessary to reorganize in all/individual interest and aptitudes. This does not happen, at present, because a large number of Senior English teachers and Headmasters are denied the opportunity to serve in administrative posts, in certain cases, all through their careers. This starves the services by neglecting a large reserve of --executive talent. Simi--larly a large number of professional people have complained that they have been allowed to decay professionally by keeping them in inspection jobs for long periods of the. It would obviously be a great advantage to bring them back to academic life and restore their contact with students, studies and teaching. Maintaining and advancing this lateral mobility would be greatly in the interest of service, the serving personnel, and the quality of education. 6. I am, therefore, directed to state that the Government of the Punjab, has been pleased to order that the tenure of District Inspectors/Inspectresses and Assistant District Inspectors/inspectresses stands fixed at a term of four years, unless earlier changes are necessitated in the public interest or as a result of disciplinary measures. It must also be ensured that when transfers are ordered at the successful completion of four years, they Would Involve not only the nature of duty but also the stations of postings. 7. I am, therefore, directed to request you to kindly take steps to ensure that persons holding Inspection/administrative posts for the last four years or more are transferred from their present stations of posting to teaching posts in various schools and recommend Senior English Teachers of the relevant cadres with appropriate interest and aptitude, are appointed to the administrative/Inspection posts in their places. 8. I am further to request that action, in all such cases, where person have completed four years in an administrative, Inspection job, defined above should be transferred to schools away from their
---
## Page 3
present stations of posting before the end of the current summer vacation, so that a compliance report is submitted by the Education Department to the Governor of the Punjab. 9. Care should also be taken that no nicer is posted as District Inspectors/Inspectresses in his/her own District and no official is posted as Assistant District Inspector/Inspectresses in his/hex home circle, as existing practice. 10. If any clarification is desired you are free to ring up the Education Secretary or the undersigned whenever you please. Any written references may please be addressed to the undersigned by name. But on no account should action be delayed, as matter will have to be brought to the gracious notice of the Governor. 11. A receipt of this urgent communication may please be acknowledged to the undersigned by name. (Sd.) Dr. K. S. Hamid G. A. R. Deputy Secretary (Estt.) for Secretary to Government of Punjab, Education, Department. 3. A perusal of the above Policy will show that the Government decided that the Assistant District Inspectors (here in after called as A. D. Is.) could be transferred and posted to Teaching Posts in various schools and similarly another class of employees known as Senior English Teachers (hereinafter called as S. E. Ts.) of the relevant cadres with appropriate interest and aptitude could be posted as A. D. Is. The reasons for taking such a decision are contained in the Policy Letter itself which has already been reproduced above and need not be recapitulated. In pursuance of the above Policy decision, I was told at the bar, that certain movement and transfer orders of sixty- seven A. D. Is., have so far been issued and in their places corresponding number of S. E. Ts. Have been posted. The A. D. Is., have come up in writ petition against the aforesaid general Policy letter to this Court and claim the following reliefs :- "Under these circumstances, it is respectfully prayed that the orders passed by the respondents on 16-7-1971 in fixing the tenure for the post of Assistant District Inspectors of Schools as four years and ordering posting of existing A. D. Is., having more than four years' service as Senior English Teachers in the Secondary Schools being illegal and without any lawful authori--ty may be declared of no legal effect. A direction may be issued to the respondents to treat the cadre of service of the petitioners to be different from that of Senior English Teachers. Costs of this petition may also be awarded." 4. The writ petition was filed in this Court on 9-8-1971. A report was called for an after going through the same and hearing the then learned counsel for the petitioners and the departmental representative the writ petition was admitted to a full hearing on 26-8-1971. Later on by means of Civil Miscellaneous Application No. 4 of 1971/3626 of 1971 filed on 13-9-1971, accompanied by a large number of documents, the petitioners sought permission to raise some additional grounds which by means of an order of this Court, dated 14-9-1971 were allowed subject to all just exceptions. The Department then filed its written-statement and in view of the fact that the writ petition challenged the vires of a Policy Decision which could not be kept in suspense for an indefinite length of the, this case was given a preferential hearing and was fixed before me for adjudication. Another thing to be mentioned is that even though, as indicated earlier transfer/movement orders of various A. D. Is., and S. E. Ts., have been made but the particulars of these transfers and postings were not disclosed in the writ petition. Some S. E. Ts., however, learning that efforts were being made to get their postings as A. D. Is., nullified by means of the present writ petition, alongwith others on 18-9- 1971, filed Civil Miscellaneous Application No. 5/1971/C.M. 3709-71 for being, made parties in the writ
---
## Page 4
petition. That application was filed on behalf of 17 2 S. E. Ts., and it was indicated that appli--cants 2 to 13 therein were actually appointed as A. D. Is. By means of order dated 21-9-1971, it was directed by my learned brother Shamim Hussain Kadri, J., that this application shall be considered at the the of the hearing of the main case. I have heard the learned counsel for these applicants as well exercising my power under rule 4 of Part II of Part H of Chapter 4 of Volume V of High Court Rules and Orders. Learned counsel for the parties raised a number of contentions before me which I proceed to examine. Re : plea of non-transferability to any other post 5. The first point argued by the learned counsel for the petitioners was, that in the service rules of his clients there was no scope, authority or warrant for their transfer from the post of an A. D. I. For an appointment to any other post or job. For this purpose, I was taken through 1937 Rules hereinbefore mentioned. A perusal of these rules (copy whereof has been placed on record) will show that according to rule 2(c) "Service" means the "Punjab Subordinate Educational Service". According to rule 3 it was to comprise of the posts mentioned in Appendices A, B and C (attached to these rules) and the Government retained the inherent right to make additions to, or reduc-- tions or alterations in the cadre of the service either permanently or temporarily. Recruitment to the "Service" as per rule 6 could be made by a direct appointment or by transfer from the depart-- ments other than the Education Department in accordance with the rules provided in this behalf and when a vacancy occurred or was about to occur in the service it was for the appointing authority to determine the manner in which such a vacancy should be fulfilled. According to rule 8, "the seniority of members in the various grades of the service shall be determined by the date of confirmation, which for the purpose of this rule shall be the day following the expiry of the period of probation. Provided that if to or more members are confirmed in the same class of posts on the same date, their seniority shall be determined by the Director whose decision shall be final". In rule 9 it was laid down that a member of the "service" from the date of joining his appointment was entitled to pay as shown in Appendice A, B or C and it was further stated that nothing in these rules, however, shall affect the inherent right of Government to Increase or reduce the scale of pay then prescribed in Appendice A, B and C, either permanently or temporarily for future entrants to the service. Appendix "A" attached to these rules indicated as to which posts were placed in which class. According to that Appendix the service has been divided into to broad sections, namely, (a) Anglo-Vernacular Section and. (b) Classical and Vernacular Section. 6. Anglo-Vernacular Section comprises of five classes of posts as follows :-
Section.No. of anction- d Posts.Class Old rate of pay.Revised rate of pay for those recruited after 31st December 1930.Designation of Post.
123456 Rs.Rs. Anglo:101150-8-190 District Inspec-- vernacular200-10-250 for of Schools, Assistant District Inspector of Schools. Assistant District Inspector of Schools
---
## Page 5
for physical Train-- ing Lecturer and Teacher( in colleges); Headmaster ; Se, cond Master; English Master ; Science Master; Commercial Teacher; Agricultural Teacher; 1 Physical Training Supervisor. 233 It 140-10-190 105-7-140 District Inspector of Schools; Assistant District Inspector of Schools; Assistant District Inspector of 123456 Rs.Rs.Schools for physical Training ; Lecturer And Teacher (in Colleges) Head. Master Second Master english Mas-- Ter hence Master; Commercial Teachers; Agriculture Teacher Physical Training Supervisor; Demonst rator, Government College, Lahore. 317 III 110-5-135 80-4- As above excepting 100 District Inspector of Schools and De. monstrator, Govern. Ment College, Lahore. 263 IV80-4-10065-3-80do. 141 V 55-3-7045-2-55 do. 7. Classical and Vernacular Section also comprised of the following five classes of posts: 123456 Classical 10 I140-10-190 105-7- Oriental Teacher; and Vernacular.140 Drawing Master, Manual Training Instructor;Vern. Teacher; Agricul- tural Teacher ; Physical Training Instructor; Assistant District Inspector
---
## Page 6
of Schools ; Assis-- tant District Inspec-- tor of Schools, for physical training Clay Modeller. 40 II110-5-13580-4-100do. 126 III80-4-10065-3-80do. 406IV55-3-7045-2-55do. 352 V35-3-5030-2-40 do. 8. The table reproduced above will show that Senior English Teachers (which the Department has stated were also Second Masters), fell in the same class of posts in which for example Assistant Inspectors of Schools of the respective and relevant scales of pay fell. In other words, the A. D. Is., and S. E. Ts. Failing within the same rate of pay belonged to one and the same class. The seniority of the members of the service in the various grades of service was to be determined from their respective date of confirmation with this clarification that if to or more members were confirmed in the same class of posts on the same date, their respective seniority was to be determined by the Director whose decision was to be final. This shows that each class, as depleted above, was a separate unit of service by issued and the constituents of that unit competed with one another in seniority. Examining in this way it will appear that A. D. Is., of Class I of Anglo Vernacular Section, within the rate of pay of Rs. 200-10-25 (old) Rs. 150-8-190 (new after 31-12-1930) and S. E. Ts., of the same class were one unit of service. Similarly, A. D. Is., of Anglo Vernacular Section with the rate of pay of Rs. 140-10-190 (old) 105-4-140 (revised after 31-12-1930) of the sate class i.e., class Il were in their own way another unit of service. This process o determining various classes (for which I have used the word units of service) can be carried forward and applied to the various other classes shown in Appendix "A", hereinbefore mentioned. If this basic foundation of the service structure is grasped then the solution of the problem herein arising becomes easy and it will be evident that if any S. E. T. (otherwise qualified) of one class (that is one unit) is appointed as an A. D. L, in the same class (unit), or vice versa, if an A. D. I. Is appointed as an S. E. T. In the same class/unit, then both remain within the same unit or class or service and on principle since their basic grades of pay do nor undergo any change, no exception to such a shift of assignment can legitimately be taken. Lumping together of various kinds of posts into one unit or class of service, obviously implied that within that unit/class constituents of those posts would be easily inter-changeable. Merely because one member of the unit/class is given a teaching assignment, another inspection duty and third the job of a physical training supervisor, it does not mean that they cease to remain members of the same unit or class of service. So long as they remain in the same section and in the same class, or unit, changes or shifts in their appointments or jobs do not mean breach of any service rule. 9. At this stage, I may refer to a judgment of the Supreme Court in the Province of West Pakistan v. Begum Waseem Intizar (Civil Appeal No. 23 of 1962), decided on 14-5-1963 with reference to Rules of 1937. That was a case of a Headmistress who was later on appointed as or transferred to the post of an Assistant Mistress. Both these posts fell within the same class/or unit of service as shown in Appendix "B" attached to 1937-Rules which was similar to Appendix "A" reproduced above, with the only distinc--tion that Appendix "A" dealt with Men's Branch whereas Schedule 'B' dealt with the Womens' Branch. The Supreme Court held that since both the posts of a Headmistress and that of an Assistant that Mistress fell in one and the same class-(as this class has been explained by me above)--carrying the same rate of pay, therefore, there was nothing wrong in the order of transfer impugned before them and that the same neither constituted a reduction in rank nor any violation of any terms or conditions of service was involved therein. Respectfully following the said
---
## Page 7
declaration of law, I would hold that in the instant case as well since both these post belong to the same class/unit of service and carry the same rate of pay, the policy decision that incumbents of these posts can be interchanged, cannot be said to suffer from any defect in any respect. 10. I may here refer to another important constitutional enactment, namely section 8 of the Establishment of West Pakistan Act of 1955 which came into force on 14-10-1955. The said section reads as follows :- "8 (1) The Governor of West Pakistan may by order establish a Public Service Commission for the Province of West Pakistan to replace the Joint Public Service Commission for the Punjab and North- West Frontier Province, the Public Service Commis--sion for Sind, and any other Public Service Commission func--tioning as such for any other specified territory. (2) As from the date of the establishment of the Public Service Commission for the Province of West Pakistan under subsection (1) of this section, the Chairman and members of the Joint Public Service Commission for the Punjab and North-- West Frontier Province and of the Public Service Commission for Sind shall become members of the Public Service Commis--sion of the Province of West Pakistan: Provided that- (a) Nothing in this subsection shall extend the period of service of any person transferred under this subsection ; and (b) a person transferred under this subsection shall be employ--ed under terms and conditions not less favourable than the terms and conditions on which he was employed immediately before the appointed day. (3) All persons in the service of the drown, serving in con--nection with the affairs of the specified territories, and all persons holding civil posts under the Government of the State of Bahawalpur, or the State of Khairpur, or the Baluchistan States Union, shall, as from the appointed day, be deemed to be persons serving the Crown in connection with the affairs of the Province of West Pakistan on such terms and conditions as the Governor of the Province of West Pakistan may determine Provided that- (a) such terms and conditions shall not be less favourable than the terms and conditions admissible to them immediately before the 10th day of August 1955, and (b) notwithstanding the terms of his appointment in the specified territory, any such person may be required to serve in any post or capacity and in any part of West Pakistan." A perusal of proviso (b) of subsection (3) of section 8 as reproduced above would show, that a person could be required to serve in any post or capacity and this was notwithstanding his terms of appointment. The point which is thus being raised by the learned counsel for the petitioners is not only not supportable from any rules but stands totally demolished by the constitutional provision hereinbefore referred to. The said provision of law would further frustrate the case of pre- One-Unit employees though the position of post-One-Unit employee in this perspective will be attended to later on. The aforesaid liability of the pre---One-Unit employees continued even after the 1962-Conaicitution, Inasmuch as, the said Constitution carried forward all such obliga--tions and liabilities. The principle that previous liability in general continued after 1962-Constitution was not disputed before me by the learned counsel for petitioners. Re: Plea of Reduction in Rank 11. Learned counsel for the petitioners argued that the deci--sion contained in the impugned policy letter, dated 16-7-1971, tantamount to a decision to reduce the petitioners, in rank in a wholesale manner and could not have been brought about without issuing a show-cause notice to his clients separately as required by Article 177(5) of the Late Constitution of 1962. In my opinion, the question of reduction in rank in the instant case does not arise and my reasons in this respect as also my answers to the various pleas advanced by the learned counsel in this respect are as follows :-
---
## Page 8
(a) Reduction in rank primarily involves reduction to a lower post or reduction to a lower the scale or to a lower post in the the scale in which an employee was appointed. In the instant case, the post of an S. E. T. Is not a lower post, inasmuch as, both the posts of an A. D. I. And S. E. T. Fell within the same class/unit of service. They are in the same grade of pay and therefore, none of the aforesaid aspects of reduction in rank is involved here. The same was the view of the Supreme Court in the case of Province of West Pakistan v. Begum Waseem Intizar hereinbefore referred to with regard to the post involved therein, which to, carried the same grade of pay and fell within the same class/unit of service. The grades of pay as con--tained in 1937-Rules or 1962-Rules, or even thereafter as shown in various annexes, filed by the private contesting respondents and the Government (which were not taken exception to by any party before me) established this thing beyond any doubt. (b) Learned counsel for the petitioners argued that an A. D. I. Is supposed to make tours for a particular number of days in month and if he is shifted from his pest then he will be deprived of travelling allowance and daily allowance (hereinafter called T. A. And D.A.) which according to him would lead to substantial cut in his remuneration and will this be a reduction in rank. The argument, to say with 'respect, is misconceived. Travelling Allowance and Daily Allowance are awarded to be person when he is to perform a journey in the public interest and the essence of these allowances, as laid down in Rule 1.17 of the West Pakistan Travelling Allowance Rules, 1969 is that they cannot be converted into a source of profit by a public servant concerned. T.A/D.A. Is neither a profit nor a part or remuneration, as such, because it is not subjected to income-tart or to profit tax and is not counted in the income of a civil servant as such. The argument raised purports to flour the situation to its extreme and cannot be endorsed. Similarly another argument was raised that while inspecting Lahore Corporation Schools, an A.D.I. In Lahore used to get some additional conveyance allowance and if he eras transferred from that post, there will take place loss in his remuneration. This plea also is not correct. Additional allowance on account of performing a special job of a local body would also make no difference, just as it was held by the Supreme Court in the case of Province of West Pakistan v. 3egum Waseem Intizar that additional pay of Rs. 50 as a Headmistress did not make the said post as a superior post or a post of a higher rank as these concepts are understood in service laws. (c) It was argued that in Article 242 (of the Late Constitution of 1962), "remuneration includes…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.