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Cases Nos. 230/310, 452/396, 470/395 and 530/389 of 1983, decided on 2nd February, 1984.

‑‑‑ R. 4 (2)‑Appointment of Headmasters and Headmistresses of Nationalised Schools‑ Existing Headmasters and Headmistresses decategorised as Senior English Teachers and common seniority list of all S. E. Ts. of Nationalised Schools prepared‑Case of Pro motion to existing posts processed through Departmental Com mittee and on basis of recommendations of Committee promotion of appellants approved by Governor and notified on 23rd June, 1977 ---Department instead of appointing appellants as Headmasters/ Headmistresses in Nationalised Schools appointing persons belonging to General cadre against such vacancies‑Action of Department in circumstances, held, violative of rules and great injustice to appel lants‑Department, in circumstances, held, had no right to transfer persons of General Cadre and Post them as Headmasters/ Head mistresses against existing vacancies of Nationalised cadre‑Impugned orders of posting such persons set aside by Service Tribunals with directions that appellants as well as other members of such category should be posted seniority‑wise as Headmasters/Headmis tresses‑Punjab Service Tribunals Act (IX of 1974), S. 4.

P L D 1982 S C 27 ref.

Masud Ahmad Riaz for Appellants.

A. G. Humayun, District Attorney for Respondents.

‑‑These are four appeals filed by Mrs. S. Maqbool, Mrs. Iqbal Ikram, Mrs. K. Butt and Muhammad Ibrahim, under section 4 of the Punjab Service Tribunals Act, 1974, and have impleaded Secretary to Government of the Punjab, Education Depart ment, Lahore, Director Public Instructions (Schools), Punjab, Lahore, and Mst. Riaz Anjam, Mrs. Ruqqia Zahoor, Mrs. Nusrat Saeed and Mr, Muhammad Mukhtar, as mentioned above against each of the appeal, respectively.

2. By virtue of these appeals, it has been prayed that the impugned orders, dated 14th April, 1983 (in Appeal No. 230/310 of 1983‑Mrs. S. Maqbool), dated 27th August, 1983 (in Appeal No. 452/396 of 1983‑‑Mrs. Jqbal Akram), dated 24th August, 1983 (in Appeal No. 470/395 of 1983-- Mrs. K. Butt), and dated 25th October, 1983 (in Appeal No. 530/389 of 1983‑Muhammad Ibrahim) be set aside as being without lawful authority and the respondents Nos. 1 and 2 be directed to post the appel lants as Headmistress/ Headmaster in compliance with the orders of Governor of Punjab, as contained in Notification, dated 23rd June, 1977/ 3rd July, 1977.

3. As the facts and point of law involved in all these appeals are identical in nature, therefore, we will dispose of the same with our this single judgment.

4. Brief facts leading to each of the appeals are as under :‑

Mrs. S Maqbool: She was appointed as S. E. T. at Islamia Girls High School, Brandreth Road. Lahore, since 1962. The said school was nationalized under M. L. R. 118 and the services of the appellant was also nationalized. In order to give effect to the provisions of M. L. R. 118, Government framed Punjab Nationalized Schools (Men and Women Section) Teaching Posts Rules, 1974, on 26th September, 1974. Relevant rule for the purpose of this case is rule 4 (2), and in accordance with this rule, all the existing Headmasters/Headmistresses were decategorised as S. E. Ts. and after that decategorization a common seniority list of S. E. Ts. of all the nationalized Schools was prepared, which is placed at Annexure C' with the appeal. On the basis of that seniority list, case of pro motion of S. E. Ts. to the existing posts of Headmasters/Headmistresses, was taken up. The Departmental Promotion Committee determined their suitability on the basis of their service record and recommended various persons including the appellant for promotion to the post of Headmistress. On the basis of these recommendations, the Governor of the Punjab approved the promotion of the appellant and a notification, dated 23rd June, 1977 was issued with certain condition as incorporated in the same. The post of Headmistress of that school fell vacant on 21st March, 1982, due to retirement of Mrs. K. Latif. The appellant was not posted against that post but respondent No. 3, who was a Headmistress of General Cadre was appointed vide order, dated 14th April, 1983, against the existing vacancy.

Mrs. Iqbal Akram : She was working as S. E. T. at Fatima Jinnah Government Girls High School, Rawalpindi, from 16th September, 1957, prior to nationalization. On promulgation of M. L. R. 118 the said school was nationalized and services of the appellant stood nationalized. In order to give effect to the provisions of M. L. R. 118, the Governor of Punjab, framed Punjab Nationalized Schools (Men and Women Section) Teaching Posts Rules, 1974, on 26th September, 1974. Rule 4 (2) is relevant rule for the purpose and according to this rule all the existing Headmaster/Headmistress were decategorised as S. E. Ts. and after that decategorization a common seniority list of S. E. Ts. of all the Nationalized Schools was prepared which is annexed with the appeal. On the basis of that seniority list, case of promotion of S. E. Ts. to the existing posts of Headmasters/ Headmistresses was taken up. The Departmental Promotion Committee determined their suitability on the basis of their service record and recommended various persons including the appellant for promotion to the post of Headmistress. On the basis of this recommendation, Governor of the Punjab approved the promotion of the appellant and notification, dated 23rd June, 1977 was issued with certain conditions as incorporated in the same. The post of Headmistress of Government Zeenat Sikandaria Girls High School, Rawalpindi, which was a nationalized school, fell vacant due to the death of Mrs. Salima Riaz during the year 1983. Accordingly the appellant was transferred as S. S. T. against that vacancy and was directed to look after the affair of the School as Incharge Headmistress in addition to her own duties, till further orders as such. The Secretary Education Punjab, issued impugned order, dated 27th August, 1983, where by respondent No. 3, who was a member of General Cadre, was trans ferred and posted as Headmistress in that School.

Mrs. K. Butt: She was working as S. S. T. Modern Girls High School, Dabbi Bazar, Lahore, prior to nationalization. With the pro mulgation of M. L. R. 118, the said School was nationalized and services of the appellant were also nationalized. According to rule 4 (2) of Punjab Nationalized Schools (Men and Women Section) Teaching Posts Rules, 1974, all the existing Headmasters/Headmistresses were decategorized as S. E. Ts. and after that decategorization, a common seniority list of S. E. Ts. of all the Nationalized Schools, was prepared which is duly placed with the appeal. On the basis of said seniority list of S. E. Ts., case for promotion of S. E. Ts. against the existing posts of Headmasters/ Headmistresses was taken up. The Departmental Promotion Committee determined their suitability on the basis of their service record and recommended various persons including the appellant for promotion to the post of Headmistress. On the basis of this recommendation, Governor of the Punjab approved the promotion of the appellant and a notification, dated 23rd June, 1977, was issued with certain conditions as incorporated in the same. The post of Headmistress at Government Modern Girls High School, Dabbi Bazar, Lahore, fell vacant on 4th September, 1980. By virtuo of letter, dated 4th September, 1980 the appellant was informed that she would work as Incharge Headmistress in place of Mrs. King who was going to retire on 5th September, 1980, till further order. However, Mrs. Nusrat Saeed, who was a Member of General Cadre, was posted against that vacancy, vide order, dated 11th June, 1983 to which the appel lant protested but her orders were withdrawn by subsequent orders, dated 25th June, 1983, with the result that appellant continued working as Head mistress of the said School. After two months, Secretary Education issued another order by virtue of which, respondent No. 3 has again been appoin ted as Headmistress of that School and is working as such.

Muhammad Ibrahim: He had been working as S. S. T. prior to nationalization in a privately‑managed School of Okara. On the promulga tion of M. L. R. 118, the said School was nationalized and the services of the appellant were also nationalized. According to rule 4 (2) of the Punjab Nationalized Schools (Men and Women Section) Teaching Posts Rules, 1974, all the existing Headmasters/Headmistresses were decategori zed as S. E. Ts. and after that decategortzation, a common seniority list of S. E. Ts. of all the Nationalized Schools, was prepared which has been annexed with the appeal. On the basis of the said seniority list of S. E. Ts. case of promotion of S. E. Ts. against the existing posts of Headmasters/Headmistresses was taken up. The Departmental Promotion Committee determined their suitability on the basis of their service record and recommended various persons including the appellant for promotion to the post of Headmaster. On the basis of this recommendation, Governor of Punjab approved the promotion of the appellant and a notification, dated 23rd June, 1977, was issued containing certain conditions so incorporated therein. The appellant figured at Serial No. 355 of that promotion notification and he kept on waiting the orders of his posting as Headmaster in the implementation of the afforesaid notification, dated 23rd June, 1977. However, no such orders were issued but instead Syed Habibur Rehman, S. S. T. of Sutlej High School was posted as Head master in the said School and when the said Habibur Rehman retired on 3rd May, 1975, the appellant took over as Headmaster under the orders of Directorate of Education, Multan, on 3rd May, 1975, and continued working as Headmaster till April, 1976. When the appellant was trans ferred as Incharge Headmaster to Mission High School, 148/9‑L, Sahiwal and one Mr. Abdul Aziz who was far junior to the appellant, was appoin ted as Incharge Headmaster at Sutlej High School, Okara. Subsequently in October, 1976, appellant was posted as S. S. T. at Mission High School, 48‑4/R, Sahiwal. However, M. Akram Shauq Incharge Head master, who had previously been appointed, was not able to run Millat High School, Renala Khurd and then Director of Education, transferred the appellant to Millat High School, Renala Khurd in October, 1980 as Incharge Headmaster. Then by impugned order, dated 25th October, 1983, respondent No. 3 who is member of General Cadre, has been trans ferred and appointed as Headmaster of that School against the existing vacancy. Hence these appeals.

5. We have heard the learned counsel for the appellants as well as learned District Attorney assisted by the representative of the Depart ment and have perused the record of their cases with their assistance.

6. Learned counsel for the appellants, while recounting the entire history of the case, has submitted that when the valid order of the Governor fully consistent with the Rules, was in the field, in favour of the appellants, the respondents had no business to bypass the same and to make orders in arbitrary manner, at their own whim and fancy and to their choice, which were in complete violation of the Governor's order as well as of the rights of the appellants. While relying on rule 4 (2) of the Punjab Nationalized Schools (Men and Women Sections) Teaching Posts Rules, 1974, learned counsel for the appellants has vehemently argued that method of filling up the posts of Headmasters/Headmistresses has been laid down under the rules as under :‑

(1) Total number of posts of Headmasters, Headmistresses of High Schools as determined immediately before coming into force of those rules, shall be filled by selection from among the persons holding posts of Senior English Teachers, (etc.) of nationalized cadre.

(2) Thereafter 85% vacancies occurring in each such posts, shall be filled by selection from among the persons holding posts of S. S. Ts. of the Nationalized Cadre and remaining 15% of vacant posts shall stand abolished from the Cadre and stand transferred to the General Cadre.

It was vehemently argued that in view of the method so enumerated above, where the word 'shall' has been used for a methodology to be adopted in filling the vacancies of Headmasters/Headmistresses, the respondents have already disregarded these rules and have devised the method of their own, which they are not permitted to do so. While elaborating his contention, be pointed out that it will be a matter of an interest, to note that accord ing to the first stage, mentioned above, the appellants were positively the persons to be appointed against the posts of Headmasters/Headmistresses as the requirement according to the said rule, was still to be fulfilled, and the appellants were entitled to be appointed against such posts against 100% vacancies. He has further submitted that if the compliance is made in accordance with clause (I) above, the grievance of the appellants still remains in the field, as there were fair number of vacancies, which would be filled by them, and still large number of vacancies have to be filled by the persons of their category. Learned counsel for the appellants, in support of his arguments has pointed out that this fact has been admitted in para, 3 of written statement of the respondents. Learned counsel for the appellants, while referring to second prerequisite of the rules so mentioned above, has submitted that people from General Cadre could only come into field if the first requirement of rule 4 (2) had become completed and 15% posts belonging to the nationalized cadre, would have abolished and, transferred to the General Cadre, only then the people of General Cadre could have to be accommodated. While concluding his arguments, he forcefully contended that proviso of rules particularly provides that "posts of Headmasters or Headmistresses shall be filled in accordance with these rules", therefore, there would be no other method, except the one on which he has relied. Learned counsel for the appellants, has further relied on letter. dated 4th October, 1980, addressed by the Secretary, Education to the Director Public Instruction, that no one from General Cadre, should be promoted against the vacancies occurring in that cadre. Reliance has been placed on P L D 1982 S C 27 in support of his arguments.

7. On the other hand learned District Attorney has submitted that in fact no violation of the Governor's order has been made and neither there is any intention to do so as the Governor being the Head of the Executive of the Province, could pass any order and the same is to be obeyed. However, he has submitted that factual position is that in com pliance of the rules so made by the Governor in the year 1974, seniority list was formulated in 1977 decategorising the Headmasters/Headmistresses as S. S. Ts. and existing S. S. Ts. and it was only then that this notifica tion came into being. Meanwhile the Headmasters/Headmistresses whose services had been decategorised filed writ petition before the Lahore High Court which became subject‑matter of appeal before the Supreme Court of Pakistan, and on the direction of the Supreme Court of Pakistan, have approached this Tribunal. This Tribunal decided that the rules so made in 1974, were ultra vires and said Headmasters/Headmistresses could not be decategorised, vide its judgment, dated 4th May, 1980. The Govern ment went in appeal before the Supreme Court of Pakistan and it was held by their Lordships of the Supreme Court of Pakistan, vide their judg ment dated 10th November, 1981 that Rules were intro 'vires. However, they made certain observation with regard to the work and status of the Headmasters/Headmistresses and disposed of the case accordingly. After the said judgment, the respondents issued notification of 1977, but the Headmasters/Headmistresses approached this Tribunal with the request that the judgment of the Supreme Court be implemented as it was and made a grievance that Department was interpreting the same in their own way, which was not the intention of their Lordships of the Supreme Court of Pakistan. This Tribunal while disposing of the appeal as premature, made certain observations with regard to the status of the Headmasters/ Headmistresses and matter once again went before the Supreme Court of Pakistan at the instance of the Government ; but according to the learned District Attorney, the case is still sub judice before the Supreme Court of Pakistan and no clear cut decision has been made in the said case, although at the stage of preliminary hearing their Lordships made certain observations and directed the respondents to complete the case at their own end. According to the learned District Attorney, in case they started implementing the notification of Governor of order of 1977 and fill the vacancies accordingly, it is apprehended by him that respondents may not be guilty of contempt of Court as well as of this Tribunal and has requested that no decision may be given in this case, till the final adjudica tion by the Supreme Court of Pakistan. He has also informed this Tribunal that the matter is to be taken by the Supreme Court of Pakistan in the month of February, 1984, as per his instructions.

8. Besides the above practical difficulties, learned District Attorney has submitted that reliance placed by the learned counsel for the appellant on rule 4 (2), in no way debars the respondents to make transfer of a civil servant from one post to another and thus the respondent are within their rights to post Headmasters/Headmistresses from the General Cadre to the posts of Nationalized Cadre. He has further submitted that even if the notification of 1977 is implemented as it is still in the field and has not yet been cancelled by the Governor, even then the appellants would hardly gain any benefit from the same. It has been pointed out by the learned District Attorney that in case this Tribunal directs the respondents to implement the notification of 1977 so passed by the Governor but as the Supreme Court of Pakistan had at a later stage, declared the Head masters/Headmistresses as separate category, then this entire list, would stand cancelled in view of the said declaration and a new exercise would have to be taken to formulate the list of S. S. Ts. and that of Headmasters/ Headmistresses separately and the promotions would be made on the basis of two seniority lists. In this manner, it has been submitted that it would be most appropriate to wait for the judgment of the Supreme Court of Pakistan and save the respondents from this extra exercise.

9. We have given our anxious thought to the arguments so advanced by the parties and find that the Governor of the Punjab on the recommen dations of the Departmental Promotion Committee of the Education Department was pleased to order the promotions of the appellants and others of their category, vide notification, dated 23rd June, 1977, on the basis of seniority list framed by the Government under the Punjab Nationalized Schools (Men and Women Section) Teaching Post Rules, 1974. It is further established on the record that this notification is still in the field and has not yet been cancelled by the Governor. However, in the said notification, it was stated that their appointments as such would not give them any right to these posts if the Supreme. Court of Pakistan in the appeal pending before them, give a verdict that the above‑mentioned Rules are ultra vires. Since the publication of this notification the Supreme Court of Pakistan in its judgment reported as P L D 1982 S C 27 have held the rules as intra vires and thus condition No. 1 in the said notification does not stand in the way of the appellants in any manner whatsoever.

10. We have taken into consideration the arguments of the learned District Attorney by which he has submitted that as the Tribunal has given a judgment in case of Abdur Rashid Qayyum and 39 others Maqsood Ahmad and 22 others and Sardar Khan and Shakira Kbanam on 16th August 1982, elucidating the observation of the Supreme Court of Pakistan vis‑a‑vis Headmasters/Headmistresses holding them us separate category, therefore, if the claim of the appellants is accepted, (lie judgment of this Tribunal will be nullified and the respondent Government will be faced with lot of practical difficulties, as they shall have to start a fresh exercise once again. In view of the said argument, we have once again, perused our judgment very carefully and have no hesitation to hold that the above argument of the learned District Attorney is fully misconceived. 1n the said judgment, we have nowhere referred to the notification of 23rd June, 1977 and we also find that present issue involved was never a subject‑matter of discussion in any manner whatsoever.

11. The main issue in this case, would be that the notification of 23rd June, 1977, which is a valid notification, should be implemented or not. We called upon the respondents' representative to show us any ground as to why the order of the Governor has not so far been implemented but to this query. he had no answer, except referring to the same irrelevant matters which in our considered opinion, can only be termed as lame excuse. We in no way intend to re‑open the issue of the claim of the Headmasters/Headmistresses which came under our purview in the above‑noted judgment, dated 16th August, 1982, as the same being pending before the Supreme Court of Pakistan, for adjudication, but we are of the positive view that the respondents‑Government had no justification to withhold in implementing the order of the Governor for full six long years and to deprive the appellants and others of their category for promotions, in their favour, in view of the above‑cited notification. We have also noted a peculiar feature of this case and that is, that not only the department has failed to implement the Notification but have devised a nova] method of importing the people from General Cadre, to the Nationalized Cadre although they have all along been claiming before us that General Cadre and Nationalized Cadre were two different categories and people of the Nationalized Cadre have no clam to enter to General Cadre. This being so, the respondent Government/Education Department has no right to transfer people to the General Cadre and post them as Headmasters/Headmistresses, against the existing vacancies of the Nationalized Cadre. For our this observation, we place reliance on the proviso of rule 4(1) and (2) of the aforesaid Punjab Nationalised Schools (Men and Women Section) Teaching Posts Rules, 1974. which laid down the method of filling the posts of Head masters/Headmistresses of the Nationalized schools. We reproduce the entire said Rules as under :‑

"4(1) Any person who was in the service of a Nationalized School on or before the 14th of March, 1972, and continued in such service till 31st August, 1972, was below the age of 58 years on the latter date and is a citizen of Pakistan possessing the qualifications and other conditions of eligibility prescribed by Government for teachers of the schools maintained by it shall be deemed to have been appointed, to the post, other than the post of Headmaster or Headmistress of a High School which he was holding at the time of the Nationalization of the School

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 Headmistresses shall be filled in accordance with these rules.

(2) Total number of posts of Headmasters of Headmistresses of High Schools as determined immediately before coming into force of these 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 per cent vacancies occurring in such posts, shall be tilled 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 per cent 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.

The relevancy of the said Rules vis‑a‑vis the case of the appellants would be that it has been clearly laid down in the rules that the posts of Headmasters/Headmistresses "shall be filled in accordance with these rules", (underlining is ours). It has been further emphasized that 100% of the existing vacancies shall go to the S.S.T.'s of the Nationalized Cadre so earlier promoted vide Notification of 23^rd September, 1977 and after the said process is completed, then 15% of the posts of the Headmasters/Headmistresses in the Nationalized Cadre shall stand abolished from that cadre and stand transferred to the General Cadre. It would be now clear that no other method except the one, so quoted above, was available to the Department. To our utter surprise, we find that besides bypassing the mandatory provision of these rules, the Department has, by its own mechanisation, started transferring regular Headmasters/Headmistresses of General Cadre to the vacancies in the Nationalized Cadre and by this manner, as perpetuated to a great injustice by depriving them of their promotions visualized by these rules.

12. In view of the detailed discussions made by us of the entire situation of this case, we are of the confirmed view that the impugned orders are liable to be set aside and we are under legal obligation to give directions to the respondents/Education Department, not to transfer any further any member of the General Cadre and post them against the vacancies so available in the Nationalized Cadre, so that the aforesaid Nationalized Rules are not violated.

13. The result is we accept the appeals, set aside the impugned orders and direct that the appellants as well as other Members of the category should be posted as Headmaster/Headmistress in accordance with their seniority in pursuance of the Governor's order, dated 23rd June, 1977, which is still in the field. There will be no order as to costs.

A. E. Appeal accepted.

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