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Petitioner: ABDUL RASHID QAYYUM VS Respondent: SECRETARY, EDUCATION
1992 P L C (C
1992 P L C (C.S.) 575
[Service Tribunal Punjab]
Present: Muhammad Mehmud Aslam Pirzada, Chairman and Abdul Hamid Khan, Member
ABDUL RASHID QAYYUM and others
Versus
SECRETARY, EDUCATION and 1564 others
Appeals Nos. 501, 513, 514, 5 7, 508, 512 and 531 of 1985, decided on 15th October, 1991.
(a) Privately Managed Schools and Colleges (Taking over) Regulation, 1972 [M.L.R.118]---
----Service conditions---Seniority---Entitlement to benefits---Teachers of all privately-managed schools and colleges which were nationalised, were guaranteed entitlement under para. 7 of Martial Law Regulation No. 118 to such scales of pay, allowances and other benefits as were not less favourable than those to which teachers of equivalent qualifications, seniority and experience in colleges and schools maintained by Government, were entitled-- Protection envisaged in para. 7 of M.L.R. 118, was conditioned by comparable qualifications, experience and seniority---Teachers who lacked requisite qualifications prescribed for Headmasters or Senior English Teachers of schools maintained by Government thus could not be considered to have any right to continue as Headmasters/Headmistresses nor they could have any valid grievance if they were appointed as Senior English Teachers in accordance with terms and conditions of service specified in Notifications issued from time to time for that purpose---Civil servants having been appointed as subject specialists in Basic Pay Scale 17, which could only be termed as an act of benevolence on part of Government, Government under M.L.R. 118 was not under obligation to grant even Scale 17 to them---Ad hoc tenure of civil servant as Headmaster who was not qualified, was irrelevant for purpose of grant of Scale 17---Unqualified teachers could not be retained even as Senior English Teachers much less as Headmaster---Basic pay scale was personal to subject specialists because they could not be selected for appointment as Headmaster on regular basis---Unless and until subject specialists were selected as such on their turn on basis of their position in the pooled seniority list, they were to continue to form part of list of Senior English Teachers---Civil servants having vacated posts of subject specialist, temporary posts would stand reverted to the cadre of Senior English Teachers---Contention that seniority as Subject Specialist should be maintained separately, was untenable.
Fazal Elahi Ejaz v. Province of Punjab PLD 1977 Lah. 549; Bashir Ahmad Bokhari v. Province of Punjab and others 1981 PLC (C.S.) 130; PLD 1982 SC 27; 1986 PLC (C.S.) 35 ref.
(b) Punjab Nationalised Schools (Men & Women Section) Teaching Posts Rules, 1974---
----R. 4---Privately Managed Schools and Colleges (Taking over) Regulation, 1972 (M.L.R. 118), para. 7---Supreme Court declared Rules, 1974 intra vires of para. 7 of M.L.R. 118---Verdict of Supreme Court was in general terms in the context of teaching staff of taken-over schools as a cadre and not so much with particular reference to appellant in appeals before Supreme Court---Since Supreme Court had overruled the Tribunal on particular point, it was immaterial whether civil servants were party to proceedings in appeals before Supreme Court or not---Set of Rules, could not be intra vices for one section of a cadre and ultra wires for others in same cadre as same would be illogical and a contradiction in terms---Unless there was a specific provision in a particular statute or set of Rules itself excluding a section of service or cadre which was distinguishable as a sub-cadre of main cadre or a distinct section of main ,service or body of civil servants or unless a new set of Rules was framed for that Section separately, main Rules would cover all Sections of Service or Cadre to whom preamble to those Rules made them applicable---Only express words could exclude them.
1982 PLD SC 27; Fazal Elahi Ejaz v. Province of Punjab PLD 1977 Lah. 549; Bashir Ahmad Bokhari v. Province of Punjab and others 1981 PLC (C.S.) 130 ref.
(c) Interpretation of statutes---
---- Infra vires and ultra vices---One set of Rules could not be intra vices for one section of cadre and ultra vires for others in same cadre.
(d) Punjab Nationalised Schools (Men and Women Section) Teaching Posts Rules, 1974----
---R. 4(2)---Promotion---Determination of pay scale---Qualifications alone could not be made sole basis for determining pay scale of a teacher of taken over schools selected and appointed as Headmaster on regular basis---In order to make appropriate determination as to class or category in which post was to be placed, experience or nature of duties of the post would also have to be taken into account---Experience would not necessarily mean past experience of a teacher, but for determining whether a particular teacher in a nationalised school had similar experience, it referred to the nature of experience---For determining scale of pay of a Headmaster or Senior English Teacher of a taken-over school, he was to be compared with a Headmaster or Senior English teacher serving in Government maintained school, possessing same qualification, doing similar work and performing same functions.
(e) Punjab Nationalised Schools (Men and Women Section) Teaching Posts Rules 1974----
----R. 4(2)---Privately Managed Schools and Colleges (Taking over) Regulation, 1972 (M.L.R. 118), para 7(2)---Seniority and determination of pay scale---After selection and appointment on regular basis as Headmaster under Rules, 1974, teachers so appointed were entitled, on basis of their qualifications, experience and nature of duties, to Basic Pay Scale of the same scale of pay which their counterparts were entitled to---Once category and scale of pay of post of Headmaster had been determined, the last factor, `seniority' or `length of service', was to be compared for determining the pay, the stage in scale of pay to which he would be entitled with seniority of a teacher in Government nationalised schools in the same grade and doing same job or performing same duties or functions---Pay was to be fixed in the same maner in which pay of a Headmaster working in a Government Institution with comparable seniority was fixed.
(f) Punjab Service Tribunals Act (IX of 1974)----
---S. 4---Punjab Civil Servants Act (VIII of 1974), S. 21---Appeal-- Maietaisability of---Since orders impugned in appeal had been issued by Provincial Government with express approval and in name of Governor, no representation could be made under section 21 of Act IX of 1974 which had prescribed such a representation to the next higher Authority---Only a review petition could be moved---Orders impugned in appeal being final orders, appeal against those orders was maintainable.
(g) Civil service----
---- Review ---Review being creation of Statute Rules framed by Government would not provide for review to Government.
D.M. Awan, Ch. Hamid-ud-Din and MA. Riaz for Appellant (in Appeals Nos. 501, 513 and 514).
MA. Riaz for Appellants (in Appeal Nos. 507, 508, 512 and 531).
A.G. Humayun, DA and Malik Muhammad Rashid for Respondent Government.
Dr. A. Basit on behalf of the contesting Respondents.
Date of hearing: 23rd January, 1991.