Find a Lawyer

Civil Appeal No. 448 of 1980, decided on 1st December, 1984.

(On appeal from the judgment and order, dated 6‑1‑1980 passed by the Punjab Service Tribunal, Lahore in Appeal No. 222/171 of 1978).

‑‑‑Art. 212(3)‑‑Privately Managed Schools and Colleges (Taking Over) Regulation, 1972 [M.L.R. 118], para. 7(2)‑‑Leave to appeal granted to consider question as to what were rights of appellants under M.L.R. 118 and extent to which they had been given effect to in their adjustment after nationalization of institutions.

(b) Privately Managed Schools and Colleges (Taking Over) Regulation, 1972 [M.L.R. 118]‑‑

‑‑‑Para. 7(2) read with Punjab Nationalized Schools (Men and Women Sections) Teaching Posts Rules, 1974, r. 4(3)‑‑Privately managed schools‑‑Nationalization of‑‑Scales of pay guaranteed to teachers‑ Director of Education, on 2‑5‑1974, appointing appellants as Senior English Teachers in revised pay scales with effect from 1‑10‑1972, subject to condition that their appointment and fixation of pay was purely temporary, ad hoc and subject to revision‑‑Later, appellants denied pay in revised scale for period prior to date when they actually joined as Senior English Teachers‑‑Order impugned‑‑Appellants failing to establish that they were either holding posts of Senior English Teachers or were even qualified for such posts on 1‑10‑1972‑‑No vested rights having accrued to appellants, neither they could be given status of Senior English Teachers from date of nationalization nor their pay could be fixed in that grade from that date‑‑Impugned order being unexceptionable, upheld‑‑Appeal dismissed.

Mian Ata‑ur‑Rahman, Advocate‑on‑Record for Appellants.

Rao M. Yousaf Khan, Advocate Supreme Court for Respondents.

Date of hearing: 1st December, 1984.

‑This appeal, by special leave arises from the order of the Punjab Service Tribunal, Lahore, dated the 6th of January, 1980, by which Appeal No. 222/171 of 1978, was dismissed.

Appellants Rashid Ahmad Bhatti, Abdur Rashid Malik, Ghulam Sabir, Muhammad Ashraf Chaudhry, Ch. Muhammad Ashraf and Abdul Hameed Javaid were employed as Junior English Teachers in Sutlej High School, Okara. Appellant Abdul Hameed also served as a Junior English Teacher in one of the private schools. Except for appellant No. 3 all others were trained graduates.

On 1st of October, 1972, the privately managed schools were nationalised under Martial Law Regulation No. 118. The Director of Education, Multan Division, Multan, by order, dated 2nd of May, 1974, appointed them as Senior English Teachers in the Revised Consolidated Pay Scale of Rs.300‑25‑450‑30‑750 with effect from 1‑10‑1972 or the date of nationalisation of their service subject to the condition that their appointment and fixation of pay in the National Pay Scale No. 14 was purely temporary, ad hoc and subject to revision at any time with or without notice. Their pay was initially fixed at Rs.300 per month in the Revised Consolidated Pay Scale.

The appellants drew their salary in the National Pay Scale No. 14 from May, 1974 to June, 1974, when by order, dated .9th of July, 1974, the Secretary, Education Department, Government of Punjab ordered that they were not entitled to draw this pay scale as they were declared as surplus Senior English Teachers and instead were allowed to draw their salary at the old rate as on 30th of September, 1972, until such time as they were adjusted or transferred against the existing posts. Thereafter, they were transferred to various schools against existing posts of Senior English Teachers lying vacant since 1st of October, 1972, and drew their salaries in the Revised Consolidated Pay Scale as authorised by the Director, Education Department, Multan, by his order, dated 2nd of May, 1974.

The Governor of Punjab promulgated the Punjab Nationalized Schools (Men and Women Sections) Teaching Posts Rules, 1974, on 26th of September, 1974, in exercise of the powers conferred by paragraph 13 of Martial Law Regulation No. 118. Rule 4(3) which is relevant runs as under:‑‑

"(3) Total vacancies in the posts of Senior Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) and Headmasters of Middle Schools, existing immediately before coming into force of these rules shall be filled by promotion from among the persons who possess the qualifications prescribed for the post of Senior English Teachers but are holding lower posts under these rules and thereafter, 50 per cent of the vacancies occurring in such posts shall be filled by promotion from among the persons referred to above and the remaining 50 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 the Government."

By order, dated 20th of November, 1974, adjustments and transfers were accordingly made in terms of this provision and the principle adopted was as contained in the Government of Punjab, Education Department, Memorandum No. SO (R s B) 1‑88/74, dated 19th of December, 1974, of which paras. 1 and 2 are relevant and need to be reproduced:‑

"I am directed to refer to your letter No.27643/S, dated the 16th September, 1974, on the subject noted above and to state that the case regarding adjustment of S.E.Ts. has been examined in this Department and it has been decided that:‑

(i) According to the norm approved by Government for each School, B.A., B.Ed. teachers who can be adjusted in their school unit may be awarded S.E.T grade with effect from 1‑10‑1972 provided that:‑

(a) They were holding the post of S. E. T. or were working as S.E.Ts. on 1‑10‑1972.

(b) They were duly qualified for the posts of S.E.Ts. on the said date.

(2) If S.E.Ts. posts still remain vacant after the award of S.E.T. grade mentioned at (1) above, the posts be given to B.A., B.Ed. teachers with effect from the date, they are appointed against the posts."

Again in the Memorandum No.1/R‑75/40316/NS‑I, dated 24th of October, 1975, it was emphasized that according to the pay fixation formula evolved by the Government all trained graduates who were working against the posts of S.E.Ts. on Ist of October, 1972 were being considered for the award of S.E.T. grade with effect from Ist October, 1972.

However, it appears that on the basis of an "account objection" that the appellants were not entitled to draw their pay in the Revised Consolidated Pay Scale as from 1‑10‑1972 but from the date when they actually joined as Senior English Teachers on their adjustment or transfer against the existing posts lying vacant, the case was ultimately examined by the Government and by order, dated 16th of May, 1975 of the Secretary, Education Department, Government of Punjab, their status as Senior English Teachers was re‑adjusted as from the date of their joining the existing posts in modification of the earlier order of the Director Education, Multan Division, Multan, dated 2nd of May, 1974. It is the case of the appellants that on their representations, the Director of Education,. Multan Division, Multan, after consulting the Director of Public Instructions, again declared the status of the appellants as Senior English Teachers and fixed their pay in terms of the order, dated 2nd of May, 1974. But the District Accounts Officer, Sabiwal, objected to the drawal of this pay in June, 1978, when the Day bills were submitted which were returned with the remarks that "the appellants had overdrawn their pay." Thereupon they invoked the jurisdiction of the Punjab Service Tribunal, but they did not succeed as aforesaid.

In this connection the grievance of the appellants before the Tribunal was that they should be allowed to draw their salaries as Senior English Teachers as from the date on which schools were nationalized, that is, 1‑10‑1972 in terms of the order of the Director, Education Department, Multan Division. Reliance was placed by the Government on the instructions contained in the memorandum, dated 19th of December, 1974 of the Government of Punjab and, it was also the case of the Government that the order of the Director, Education Department, Multan Division, dated 2nd of May, 1974, fixing their seniority as Senior English Teachers with effect from 1‑10‑1972 was not valid as he was not empowered to make such appointments, and further that the second order, dated 2nd of November, 1974, was only operative after 24th of October, 1975, when the Director Education, Multan Division, was empowered to fill the vacancies and that both these orders could not be construed as giving retrospective effect to their seniority on 1st of October, 1972, when the appellants were not actually holding the posts of Senior English Teachers.

The Tribunal agreed with the contention of the respondents that it wag only the second order which could be considered as valid after the Director 'of Education had been authorised to issue such orders, and accordingly, the first order, dated 2nd of May, 1974, which gives retrospective effect to the status of the appellants as Senior English Teachers and also fixed their pay in National Pay Scale No. 14 "was incompetent."

Leave to appeal was granted to consider the question as to what were the rights of the appellants under Martial Law Regulation No.1181 and the extent to which they have been given effect to in their adjustment after nationalization of the institutions.

Coming now to the question posed for consideration, the law which guarantees the rights of the appellants is para. 7 (2) of Martial Law Regulation No.118. It reads:‑

"(2) As from the 1st day of October, 1972, the teachers of all privately managed colleges and privately managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the colleges and school's maintained by Government are entitled."

Additionally, paras. l and 2 of the Government of Punjab, Education Department, memorandum dated 19th of December, 1974, lay down the criterion in terms of the sub‑rule. Eminently, therefore, to avail the guarantee the appellants had to establish that they were holding the posts of Senior English Teachers or were working as such on 1st of October, 1972, and further that they were duly qualified for the posts of Senior English Teachers on the said date. This formula being the touchstone, it was for the appellants to establish that they satisfied these two requirements, but as is apparent from the record, they have failed to do so.

The appellants themselves in their representations, dated 21st of May, 1974 and 26th of December, 1975, admitted that they were appointed as Senior English Teachers with effect from 1‑10‑1972 by order, dated 2nd of May, 1974. Again in the list of the staff of Satluj High School, Okara, appellants Rashid Ahmad Bhatti, Abdul Rashid Malik, Ghulam Sabir, Muhammad Ashraf Chaudhri, Muhammad Ashraf and Abdul Hamid Javaid are shown on the crucial date as Junior English Teachers drawing the salary of Rs.230, Rs. 193, Rs. 171, Rs. 209, Rs.201, and Rs.201 respectively as on 30th of September, 1972. Appellant Abdul Hameed served in another school and has also failed to show that he was a Senior English Teacher on that date. Besides, Ghulam Sabir was also not qualified to hold the post of Senior English Teacher

In this milieu reliance was heavily placed on the order of the Director of Education, Multan Division, dated 2nd of May, 1974, but we fail to see how they could claim the status of Senior English Teachers on this basis when they did not fill those posts on the crucial date nor drew their salaries in that scale as it was only then that they could avail the guarantee provided by para. 7 (2) of the Martial Law Regulation 118.

It appears that it was after the promulgation of the rules that they were adjusted and transferred in terms of rule 4 (3) on 20^th December, 1974, and from the date on which they joined after being adjusted or transferred that they stood promoted and were entitled to draw the salaries of Senior English Teachers, The memorandum, dated 2nd May, 1974, was clearly against the guarantee provided by rule (2) of Martial Law Regulation 118, and even otherwise para. 4 of that letter eminently showed that the arrangement was temporary and revisable at any time. No vested right could, therefore, accrue under this letter in view of this condition. Accordingly, neither they could be given the status of Senior English Teachers as from the date of nationalization nor their pay could be fixed in that grade from that date. For these reasons, the "account objection" was unexceptionable and the order of the Service Tribunal is upheld.

There is, therefore, no merit in this appeal which is dismissed but with no order as to costs.

M. I. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.