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Petitioner: PROVINCE OF PUNJAB, Sh. MUHAMMAD YUSUF Ems VS Respondent: Saved BASHIR A14MAD JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Afzal Zullah, Aslam Riaz Hussain, Karam Elahi Chauhan Title:PROVINCE OF PUNJAB, Sh. MUHAMMAD YUSUF Ems vs Saved BASHIR A14MAD
JUDGMENT
Reported As: PLD 1982 Supreme Court 27 Result: Appeals disposed of Judgment JUDGMENT ASLAM RIAZ HUSSAIN, J. This judgment shall dispose of Civil Appeals, No. 1/81 filed by the Province of Punjab, and Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of 1981, filed by Sb. Muhammad Yusuf, Saeed Ahmad Khan etc. Mst. Shahnaz Akh:ar, Muhammad Sharif etc. Mat. Najma Parveen, Maqsood Ahmad etc. Malik Mulazim Hussain, Sardar Muhammad Zaigham, Shafiqur Rehman, Miss Mahmooda Asmat, Sufi iftikhar Yaqub etc. Ghulam Farid etc. Mahmood Ahmad and H. M. Tanveer, Teachers of different Schools and colleges, as common questions of law arising out of the same facts rind circumstances are involved in these appeals. Briefly stated, the facts giving rise to the present appeals are that on 15-3-1972, the Government of Pakistan announce.5 its Education Policy, involving a scheme for nationalisation of privately managed Schools and Colleges. The scheme was subsequently implemented through M. L. R. 118 promulgated on 1-4-1972. Paragraph No. 4 of M. L. R. 1 [8, provided that with effect from 1st of September 1972, will privately managed colleges situated in the Provinces, shall vest in the respective Pro--vincial Government and those in Islamabad shall vest in the Central Government. Paragraph No. 5 of the said Martial Law Regulation provided that such schools in each Province and in lslamab3d as are notified in the official Gazette, published on or after 1st October, 1972, shall vest in the respective Provincial Government or the Central Government as the case may be. Paragraph No. 6(I) of the said Martial Law Regulation placed certain embargos on the making of any changes by the owners or Managers of privately managed Schools and Colleges, in the
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contracts relating to the premises of their respective institutions after 15-3-1973 (i.e., after the promulgation of the Education Policy). Similarly, paragraph No. 7(I) prohibited them from employing new staff or making any changes in the terms and conditions of the existing staff of the private Schools and Colleges after the said date. Sub-paragraph (2) of para. No. 7 provided certain guar--antees to the teachers. Subsequently, through amendments in paragraphs Nos. 6 and 7 of 1976, exceptions were made to the above-mentioned embargos imposed by these paragraphs. Paragraphs Nos. 9, 10 and 11 spelt out the rights and liabilities acquired by the Government in relation to the taken-over institutions. Of these, paragraphs Nos. 9 and 11 were subsequently deleted and para--graph No. 10 was amended by Punjab Ordinance No. XVI of 1972 (which later became Act X of 1973). Paragraph No. 13, conferred Rule-making powers on the Provincial Government. This paragraph reads as follows :- "13. The appropriate Government may, by notification in the Official Gazette, make such rules as appear to it necessary or expedient for carrying out the purposes of this Regulation." 3. All the colleges in the Province stood nationalised on 1-9-1972, as provided in paragraph No. 4 of Martial Law Regulation 118. On 30-9-1972, the Government of Punjab issued a notification under paragraph No. 5 of Martial Law Regulation 118, to the effect that all privately managed Schools mentioned therein shall stand nationalised with effect from 1-10-1972. Since this notification was issued a day earlier than the date provided by paragraph No. 5, a Provincial Act, namely, Punjab Act VI of 1973, was enacted to give it legal cover. From the dates of their respective take--over all the privately managed Schools and Colleges became Government institutions. The teachers employed therein also continued to serve in their respective posts. Two notifications, dated 4-9- 1972 and 24-10-1972, were issued by the Government of the Punjab. The first related to the appointment of Principals, Professors and Assistant Professors of colleges on a temporary basis and reads as follows :- "The Governor of the Punjab is pleased to order the appointment of the gazetted staff mentioned in the Schedule attached to the Notification in respect of the Colleges nationalised vide this Department Notification of even number, dated 31st of August 1972, against the post created vide this Department Order of even, number, dated the 30th,, and 31st August, 1972. 2. 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 framed in regard to the service conditions of the said staff by the Government." The second notification related to the appointment of Headmasters/Head--mistresses of all privately owned and managed Schools (except those who had passed the age of superannuation) as Headmasters/Headmistresses of the taken over Schools on ad hoc basis, on the following terms and conditions :-- (1) that their appointments 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." . About l --years later, on 22-5-1974, the Director of Public Instructions. Punjab, issued a Circular letter, laying down the principle regarding the preparation of a combined seniority list of headmasters/headmistresses and Senior English Teachers for the purpose of fixation of the pay of certain category of Senior English Teachers. It reads as follows :-
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"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 to be prepared of all the Headmasters/Headmistresses of Nationalised High Schools with the Senior English Teachers of High 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, condunings gaps in service to the extent of 5 years. The Liaison Officers of District Pay Verification Committees may be asked to submit the lists by 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." It would be noticed that the substance of this letter is that for preparing a combined seniority list of the Headmasters/Headmistresses and Senior English Teachers (hereinafter called as SETS), the former were to be deemed as SETS. The basis of determining their seniority was to be the total length of se 'e 'in the Grade' and a gap in service upto a period of 5 years was to be condoned.This policy letter amounted to a direction for the a o e condoned. This Policy letter decategorisation of Headmasters/Headmistresses and bringing them down to the category of SETS (now known as SETS). 4. A few months later, on 26-9-1974, the Government of the Punjab promulgated the Punjab Nationalised Schools (Men and Women Section) Teaching Posts Rules, 1974, in exercise of its powers under paragraph No. 13 of M. L. R. No. 118 for "regulating the recruitment to the teaching staff in the Nationalised Schools and prescribing conditions of service for persons appointed thereto". Similar vales were framed for the same purpose with regard to the teachers of Nationalised Colleges. Rule 4(1) of the Rules relating to Schools provided that "all teachers who were serving in the Nationalised Schools on or before 14th March 1972, and fulfilled certain conditions mentioned in the said rules, shall be deemed to have been appointed to she posts which they were holding at the time of nationalization of the Schools. An exception was, however, made with respect to Headmasters/Headmistresses, who were not to be considered as having been appointed as such (i.e. As Headmasters/Headmistresses) with effect from the date of . The nationalisation, and a proviso was added to rule 4(t) saying that they would, instead, be deemed to have been appointed only as Senior English Teachers. The said proviso reads as follows :- "A person holding the post of Headmaster or headmistress of a High School at the time of nationalization of the School and possessing the qualifications prescribed for the post of Senior English Teachers, shall be deemed to have been appointed as Senior English Teachers and the post of Headmasters or Headmistresses shall be filled in accordance with these rules." Sub-rule (2) of rule 4 provides that, initially, the total number of posts of Headmasters/Headmistresses of High Schools shall be filled by selection from persons holding the posts of SETS. And, thereafter, 5 % of the vacancies occurring in such posts shall be filled by election from among the persons holding the posts of SETs. And headmasters of middle Schools with not less than 8 years service and the remaining 15 % of such vacancies shall stand abolished from the cadre of teachers of taken over schools and transferred to the appropriate cadre of teachers of Schools maintained by the Government. Provision was also made by rule 4(3) for filling posts of SETS and it was provided that initially all the existing vacancies shall be filled by promotion from amongst persons mentioned above while the remaining 50 Y. Of such vacancies shall stand abolished from the cadre of taken over Schools and stand transferred to the appropriate cadre of teachers of the Schools maintained by the Government. Sub-rule (4) provides that all the posts of S. V. C., J. V. C. And Oriental Teachers which fall vacant shall stand abolished from the cadre of the
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privately managed Schools and transferred to the appropriate cadre of the .Teachers of Government maintained Schools. Similar rules, called Nationalised Colleges (Men and Women Section) Teaching Posts Rules, 1974 frame with regard to College teachers, created the following cadres of teachers employed in Colleges :- (a) Principals of Degree Colleges and Professors ; (b) Principals of Intermediate Colleges and Assistant Professors ; (e) Lecturers ; (d) Directors Physical Education ; and (e) Librarians. The right of determining the number of posts in each of these cadres was retained by the Government. Rule 5 of the said Rules provided that all the Principals, Professors and Assistant Professors of Colleges were to be deemed to have been appointed as lecturers, w.e.f., 1-9-1972. Rule 6 laid down the method of initial recruitment as well as filing the subsequent vacancies in the post of Principals, Professors and Assistant Professors. It reads as follows; "6.-(1) Total number of posts of Assistant Professors and Principals of Intermediate Colleges as existing immediately before coming into force of these rules shall be filled by selection from among the persons holding posts of Lecturers (including those who are deemed to have been holding such posts) in the Nationalized Colleges and thereafter seventy-five per cent. Of the vacancies occurring in the cadre shall be filled try selection from among the persons holding the posts of Lecturers under these rules and the remaining twenty-five per cent. Of the posts falling vacant shall stand abolished from the cadre and stand transferred to the appropriate cadre of Colleges maintained by the Government. (2) Total number of posts of Principals of Degree Colleges and Professors existing immediately before the coming into force of these rules shall be filled by selection from among the persons holding posts of Principals of. Intermediate Colleges, and Assistant Professors under, these rules and thereafter fifty-five per cent. Of the vacancies occurring in the cadre shall be filled by selection from among the persons holding the posts of Principals of Intermediate Colleges and Assistant Professors under these rules and the remaining forty-five per cent. Of the posts falling vacant shall stand abolished from the cadre and stand transferred to the appropriate cadre of the Colleges maintained by the Government." 5. Headmasters/Headmistresses/Professors etc. Of Schools and Colleges who were to be decategorised by the said Rules felt aggrieved and challenged the vires thereof through writ petitions which were beard and dismissed by a learned Single Judge of the Lahore High Court. They filed Intra-Court Appeals against the judgment of the learned Single Judge, which too, were dismissed. They then came up before this Court through a petition for Leave to Appeal but it was withdrawn by them in order to approach the proper forum, namely, the Punjab Services Tribunal. 6. A number of appeals were then filed before the Services Tribunal and lengthy arguments were addressed before it by different learned counsel appearing for the various teachers who raised a number of contentions. But the main contentions raised on behalf' of the affected teachers were that rule 4(1) (and the proviso thereto) of the Rules relating to School teachers and rule 5 of the Rules relating to college teachers, respectively, were ultra vires of paragraph No. 7(2) of M. L. R. 118, which guaranteed to these teachers not only their pay but also their posts, and secondly that the said Rules were beyond the scope of the rule-making authority conferred on the Provincial Government by paragraph No. 13 of M. L. R. 118. These contentions were strenuously controverted by the learned counsel appearing on behalf of the Government, who defended the vires of the said Rules.
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The learned Tribunal after discussing the various arguments and conten--tions raised by different learned counsel appearing before it, held that the rules in question were ultra .Vires of paragraph 13 of M. L. R. 118 and directed the Government to make fresh rules under the; relevant law namely, section 23 of the Punjab Civil Servants Act, 1974. In this respect it relied on Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 13 others PLD 1977 Lab, 549. It further held that out of the 6 categories of Headmasters, mentioned b it on page 21 of the impugned judgment), those falling in categories (c) to Y (i.e. Those who are neither qualified to be appointed as headmasters nor as SETS. Or were ,not appointed as such prior to 1-10-1972. Or those who had been appointed on or after the said date as and when any vacancy arose, were not entitled to claim any protection under paragraph No. 7 of M. L. R. 118. 7. Before us the learned counsel for the petitioners raised more or less the same contentions, as before the Tribunal. We do not propose to reproduce and deal with such of them as are not necessary for the decision of the real issue in the case. Suffice it to say that shorn of all embellishments, the main and basic contentions urged on behalf of the Headmasters/head-- mistresses, were; firstly that rule 4(1) of the Nationalised Schools (Men and Women Section) Teaching Posts, Rules, 1974 and rule 5 of the Nationalised Colleges (Men and Women Section) Teaching Posts Rules, 1974, are ultra vires of M. L. R. 118, inasmuch as they are violative of the guarantees given by paragraph No. 7(2) to the teachers of Nationalised Schools and Colleges, namely that they shall not only be entitled to receive the same scale of pay as was admissible to their counterparts in Government maintained institutions, having equivalent qualifications, experience and seniority, but will also be entitled to retain their status, i.e., the posts which they held on the date of nationalisation. It was argued on behalf of some headmasters that paragraph No. 7(2) only guaranteed comparable pay and not the status. It was also urged that the said Rules are ultra vires of paragraph No. 13 because they are beyond the rule-making power conferred on the Govern--ment by the said paragraph. It was submitted that paragraph 13, empower--ing the Government to frame rules only "for carrying out the purposes of M. L. R. No. 118", but the Rules in question cannot be said to carry out any purpose for which M. L. R. 118 was promulgated, as the purpose of that M. L.. R.. Was limited only to nationalising private Schools and Colleges and no more. The Government's stand was that although on nationalisation the teachers of all taken over institutions stood inducted into Government Service, yet they were not guaranteed the posts which they were holding immediately prior to the date of nationalisation. It was submitted that paragraph No. 7(2) of M. L. R. 118 only guaranteed them comparable salary. It was also urged that rule 4(1) of the Rules relating to School teachers and Rule 5 of the Rules relating to College teachers, had been made for carrying out the purposes of M. L. R. 118 and, as such, were within the scope of rule-making power conferred by paragraph No. 13. It was urged by the learned Assistant Advocate-General, that in any case the rules in question could be validated by de.-wing them to have been framed under section 23 of the Punjab Civil Servants Act, 1974, instead of paragraph No. 13 of M. L. R. 118, and the mention of the said paragraph in the rules should be considered only a mis-description of the powers under which they were framed. 8. A careful consideration of the arguments advanced by the learned counsel for the parties would show that the basic questions which require determination are; (1) Whether the rules in question, regulating the recruitment of the teaching staff of the nationalised Schools and Colleges have been validly made under paragraph No. 13 and can be said to have been made to carrying out any purpose ofM. L--- R. 11.8.
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(2) Even if the said rules are within the scope of paragraph No. 13 and could be validly made thereunder, whether rule 4(1) of the Rules relating to Schools and rule 5 of the Rules relating to Colleges decategorising Headmasters and Professors and Assistant Professors are not ultra vires of tile guarantees given to the teaching staff of the taken-over institutions by paragraph No. 7(2) of the above-noted Martial Law Regulation. This would, also give rise to a question as to whether paragraph No. 7(2) of M. L. R. 118, only guarantees comparable pay to teachers of nationalised institutions or it also guarantees their status, i.e. The posts which they were holding at the time of nationalisation; and (3) If the rules in question could not have been validly made under paragraph No. 13 of M. L. R.- 118, can . They not be deemed to have been framed under the Punjab Civil Servants Act, 1974. 9. The first question to be considered is whether the rules in question are within the ambit of paragraph No. 13 of M. L. R. 118. The contention raised by the respondents is that paragraph No. 13 only empowers the Government to make such rules as appear to it to be necessary or expedient "for carrying out the purposes of M. L. R. 118". But since the rules in question which have been made for regulating the recruitment of the teaching staff of the Nationalised Schools and Colleges and determin--ing their conditions of services, are not referable to any of the paragraphs of M. L. R. 118, it cannot be said that these rules have been made to carry out any purpose of M. L. R. 118 and, as such they are clearly beyond the scope of paragraph No. 13. This contention weighed with the learned Tribunal which observed that :- "In this context we asked the respondents to apprise us of any provi--sions in the M. L. R. 118 embodying the purposes (other than scale of pay) which purportedly were carried out by framing the rules on 26-9-1974 qua the status of the appellants. The learned counsel appearing for the respondents have been not able to point out any provisions in M. L. R. Which could possibly cover this aspect of the case or authorise the framing of the rules in question. Since the power of the Government to frame the rules was restricted to carry out the purpose of M. L. R. And since none of the provisions contained under M. L. R. 118 concerned the status of the employees of the taken over institutions, therefore, the impugned rules, in so far as it. Purported to determine and fix the status of the appellants before us, were ultra vires of M. L. R. 118. . . . . . . ." As a matter of fact, it appears that the learned Tribunal has based its decision invalidating the rules mainly on this finding. We are however, not inclined to agree with this view. A reading of M. L. R. 118 in its entirety together w4h the Education Policy of the Government and the speech of the then Minister for Education (delivered on 10th September, 1972 and published under the title `No Doubts : No Fears') clarifying and highlighting various points of the Education Policy, which was subsequently given effect to through this Regulation, would show that the purpose of enacting the Regulation was, evidently, not only to nationalise but also to rationalise the `takeover of the privately owned educational institutions and make it workable on permanent basis. It can safely be assumed that by M. L. R. 118, the Govern--ment did not merely intend to provide for the power of taking over all Schools and Colleges and then leaving things to resolve themselves. Although M. L. R. 118 does not contain any specific provision to that effect but when read in the light of the above- mentioned policy statement, it becomes quite clear that the intention was to ultimately create a unified system of education and merge the two separate classes of institutions (i.e. The takenover and the Government maintained Schools and Colleges), and their respective staff into one integrated whole. This would necessary involve laying down the principle and making rules relating to method of recruitment, creation of cadres and determination of seniority and such other matters as would tend to facilitate the integration of two separate sets of civil servants. The transition may not, however, always be smooth and the Government may sometime per force have to make such rules or take such measures which may not be palatable to some of the
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persons involved. It may be mentioned that even after the establishment of West Pakistan in 1955 many difficulties were faced by the Government in bringing about the integration of the different Departments services in the four Provinces: Various policies bad to be enunciated from time to time for this purpose but they were not always universally acceptable because in the very nature of things they resulted in hardships to certain category of servants. 10. As a result of the above discussion, we are of the view that the rules made to regulate the recruitment of the teaching staff of the nationalised educational institutions and laying down the terms and conditions applicable to them are within the scope of paragraph No. 13 as they are aimed inter alia, at carrying out a very important and essential purpose of M. L. R. 118, i.e. the ultimate integration of two separate sets of educational institution and the merger of the two different cadres of civil servants employed therein. We are, therefore of the view that the rules in question are within the scope of paragraph No. 13. Consequently we hold them to have been validly mad] under the said paragraph of Martial Law Regulation No. 118. 11. Having held that the rules in question have been validly made under paragraph No. 13 of M. L. R. 118, it is. Not necessary to deal with the contentions whether the said rules can be deemed to have been made under section 23 of the Punjab Civil Servants Act, 1974. 12. We now come to the question, whether the provision of rule 4(2) of the Rules relating to the teachers and rule 5 of the Rules relating to teachers of Colleges (which have decategorised the headmasters in the first mentioned case and the principals, professors and assistant professors in the second case) are ultra vires of paragraph No. 7(2) as being violative of the guarantees given by that paragraph to the teachers of nationalised institutions. Lengthy arguments were put forward by the learned counsel for the parties on this point but we donot propose to deal with the contentions which were only peripheral or ancillary and shall deal only with those which are necessary for the purpose of deciding the question in issue. One of the…
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