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Cases Nos, 291, 292, 293 and 320 of 1982, decided on 16th August, 1982.

‑‑‑Para. 13‑‑Punjab Nationalised Schools (Men and Women Section) Rules, 1974‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑Jurisdiction of Tribunal‑‑Tribunal not competent to interpret judgments of Supreme Court‑‑Tribunal competent to adjudicate matters relating to terms and conditions of service of civil servants‑‑Declaration by Supreme Court about intra vires nature of Punjab Nationalised Schools (Men and Women Section) Rules, framed in exercise of powers conferred by pare. 13 of M.L.H. 118‑‑Does not empower Government to downgrade Teachers of nationalised schools who though not as of right entitled to be accommodated as Headmasters/Headmistresses can legally claim to be of separate category other than S.S.Ts.‑‑Letter from Department to Director Public Instruction and Director's memo. to Government envisaging such degradation not stipulated in judgment of Supreme Court challenged before Service Tribunal by appellants affected thereby‑‑Service Tribunal repelling contention that judgment of Supreme Court reported vide PLD 1982 S C 2 needs any interpretation and judgment of Supreme Court, held gave clear cut verdicts on all issues involved and Tribunal, further held not competent to interpret judgments of Supreme Court‑ ‑Objection on behalf of respondent‑Government that impugned letters were not of nature of final order and that no review or representation having been filed there-against appeal was not maintainable‑‑Tribunal coming to conclusion that impugned letter and memo definitely spelling the shape of things to come and affecting terms and conditions of service of appellants as declared by Supreme Court‑‑Objection as to maintainability of appeal, in circumstances, repelled and Tribunal expressing view that it would have certainly set aside impugned letter and memo if same had attained finality after having been approved by Governor‑ Appeal, in circumstances, disposed of as premature with directions that the respondent‑Department will look into the case keeping in view guidelines given by the Governor according to verdict of Supreme Court.

Province of Punjab v. Syed Bashir Ahmad Bukhari P L D 1982 S C 27 ref.

Haji Hamiduddin, Wasim Sajjad and Hamid Khan for Appellants.

M. Arif, Ejaz Ahmad Khan, Abdul Ghaffar Khan and Haroonur Rashid Cheema,, District Attorney for Respondents.

These four appeals have been filed by Abdul Rashid Qayyum and 39 others, Maqsood Ahmad and 22 others, Sardar Khan and 3 others, and Mst. Shakira Khanum, under section 4 of the Punjab Service Tribunals Act, 1974, against the orders passed by respondent No.l as contained in Memo. No SONS) 5‑33/76 Vol. III, dated 12‑4‑1982, read with Memo. No. 7023/NS‑1, dated 25‑4‑1982, issued by respondent No. 1 and/or any other consequential order pursuant thereto. Since almost identical questions of law and facts are involved in these appeals so these are being disposed of by a common judgment. Maqsood Ahmad and others, Sardar Khan and others, and Mst. Shakira Khanum have impleaded Province of the Punjab through the Secretary Education and Director, Public Instructions, Punjab, Lahore, only as respondents, while Abdul Rashid Qayyum etc. have impleaded Province of the Punjab through Secretary to Government of the Punjab, Education Department, Lahore, Director Public Instructions Lahore and 15 others as respondents.

2. By virtue of these appeals they have prayed that these appeals be accepted with costs and impugned order be declared to be illegal and without jurisdiction as they run counter to the judgment of Supreme Court of Pakistan reported in P L D 1982 S C 27.

3. Brief facts of the case are that the appellants were serving as Headmasters/Headmistresses since before 14-3‑1972, in their respective privately‑managed schools at the time of promulgation of M.L.R. 118 or. 1‑4‑1972. This was notified vide notification issued on 30‑9‑1972, with effect from 1‑10‑1972. In consequence of the above‑cited notification appellants were also awarded N.P.S. 17. In the year 1974, the Government issued a notification in exercise of the powers conferred on it by para 13 of M.L.R. 118 by which it notified the Punjab Nationalised Schools (Men and Women Section) Teaching Posts Rules, 1974. These Rules were promulgated through notification, dated 26‑9‑1974. By virtue of promulgation of above Rules of 1974, the appellants reversion to the posts of S.S.T. were envisaged and thus they stood decategorised and brought at par with the class of S.S.T. This led to the filing of numerous writ petitions including Writ Petitions No. 933‑S of 1974 and No. 337‑S of 1975, in the Lahore High Court. All these writ petitions were dismissed on 20‑7‑1975 by Mr. Justice Dr. Nasim Hassan Shah on account of bar of jurisdiction under Article 212 of the Constitution: The appellants filed L.P.As. 130 and 132 of 1975 but by order dated 14‑10‑1976, passed by Mr. Justice Sardar Muhammad lqbal, the then Chief Justice and Mr. Justice Aftab Hussain although the appellants were entitled to the guarantees under para. 7(2) of M.L.R. 118 of 1972, yet the appeals stood dismissed on the point of jurisdiction. The matter was agitated before the Supreme Court of Pakistan by the appellants in L.P.A. No. 130 of 1975, while appellants in L.P.A. No. 132 of 1975, filed an appeal before this Tribunal. The Supreme Court of Pakistan vide their order dated 10‑5‑1978, reported in 1981 S C M R 433 allowed the appellants to withdraw the appeals, whereas the appeals before the Service Tribunal were accepted vide its judgment reported in 1981 P L C (C.S.) 130. The order of this Tribunal was challenged by respondent No. 1 before the Supreme Court of Pakistan. These appeals were ultimately disposed of by the Supreme Court of Pakistan on 10‑11‑1981 vide their judgment reported in P L D 1982 S C 27. After the decision of Supreme Court of Pakistan on 10‑11‑1981, the matter was placed before the functionaries of Education, Law and Finance Departments, Government of the Punjab, for implementa tion of the said judgment. A meeting was held on 26‑12‑1981, under the Chairmanship of Sh. Ijaz Nisar, Secretary. Law Department, in which Additional Secretary Education, Director Public Instructions Schools, Qazi Saghirul Haq, Mr. Anwar Rai, Deputy Director Colleges, General Secretary Headmasters Association Abdul Rashid Qayyum, office -bearers of the Punjab Nationalised Teachers Association Sh. Muhammad Yousaf and Muhammad Arshad, office‑bearers of the Punjab Nationalised Colleges, Professor Ghulam Rasul Ansari and Professor Khurshid Ahmad participated. The deliberations and the decisions made in the said meeting also came before the high‑powered committee headed by the Governor/ M.L.A. Punjab and certain observations were made in this matter and it was ordered that a fresh exercise was to be undertaken keeping also into consideration, the decision made in similar cases by the Sind Government. The respondents also agitated the matter before the Governor of Punjab after coming to know this decision of the said high‑powered Committee. A further meeting was held under the Chairman ship of Law Minister in which Education Minister, Secretary Education, Director Public Instructions (Schools/Colleges) and Rana Muhammad Arshad of the Teachers Association and Abdul Rashid Qayyum of the Headmasters Association participated. In consequence of the above meeting, the matter was referred to Finance Department, by the Education Department and on the advice of Finance Department letter dated 12‑4‑1982 (now impugned) has been issued by respondent No. 1 to the Director, Public Instructions, in reply to which memo dated 25‑4‑1982, has been addressed by respondent No. 2 to respondent No. 1.

4. Aggrieved against these Letter and memo so mentioned above the appellants filed on 6‑5‑1982, Writ Petitions Nos. 1649‑S and 1650‑S of 1982, in the Lahore High Court, challenging the said Letter and Memo dated 12‑4‑1982 and 25‑4‑1982, issued by respondents Nos. 1 and 2, respectively. Vide order dated 7‑6‑1982, the said Writ Petitions were dismissed by Mr. Justice Muhammad Afzal Lone with various observations, ultimately concluding that the High Court has no jurisdic tion to entertain these writ petitions, which were dismissed in limine. However, it was also observed that the petitioners may seek their remedies before the Service Tribunal, if so advised. Aggrieved against this order of dismissal in limine, the appellants filed I.C. As. Nos. 149 and 150 of 1982, which came up for hearing before the Division Bench consisting of Mr. Justice A.S. Salam and Mr. Justice Muhammad Aslam Mian on 12‑6‑1982. The counsel of the appellants Haji Hamiduddin Advocate, after advancing some arguments before the Hon'ble Judges of the Division Bench, conceded in the I.C.A. by submitting that he would like to withdraw the appeals in order to avail the remedy before the Service Tribunal. In view of the above request, the appeals were dismissed as withdrawn. Hence these appeals.

5. These appeals were admitted by this Tribunal on 13‑6‑1982, after hearing at length and by perusing the record so produced before it by the Appellants and an interim injunction was also allowed till the decision of these appeals subject to the representation for vacation of stay by the respondents. As this case had already seen all the forums of law in this country, at various stages and stood ultimately decided by the Supreme Court of Pakistan, it was considered imperative to dispose of these appeals expeditiously, therefore, the case was heard when the respondents made their appearance and has been concluded on 27‑7‑1982, within a period of 1‑1/2 months. This exercise, we were able to conclude, as we heard the case continuously affording full opportunity to the parties to explain their positions.

6. Learned counsel for the appellants in his lengthy arguments, in nutshell has made out the following points in support of his case:‑

(i) That the impugned orders were vitiated in law as they were based on misconstruction and misapplication of the judgment dated 10‑11‑1981 delivered by the Supreme Court of Pakistan, reported in P L D 1982 S C 27.

(ii) That the respondents fell into error while interpreting the said judgment, by holding that the appellants had been allowed to be fixed in the higher pay scale as personal to them instead of regular pay scale thus minimising and abridging the pay scale already admissible to the appellants as compared to their counter parts in the Government maintained schools.

(iii) That the observation of the Supreme Court of Pakistan has been completely ignored which clearly laid down that while discovering the counter‑part of any particular teacher of a taken over institution, in similar institutions maintained by the Government all the three factors namely, qualification, experience and seniority have to be compared one after the other and has thus abridged the guarantee so given to them by the Supreme Court of Pakistan, by these impugned orders.

(iv) That any other interpretation which would affect the appellants and make them static by single exercise of their pay scale at a particular stage admissible to them ran counter to the interpreta tion made by the Supreme Court of Pakistan, in so far as the guarantee of the same scale of pay and stage in the scale of pay, allowed to the appellants, will be whittled down, because counter‑parts would be coming up but the same benefits would be denied to the appellants illegally.

(v) That despite clear pronouncement, by the Supreme Court of Pakistan that the appellants would be treated as a separate category and on the said basis, they would be entitled to be compared with their counterparts in the schools maintained by the Government provided that they fulfil the conditions of qualifications, experience, seniority which the appellants do fulfil, the impugned letter and memo have completely destroyed the effect of the said pronouncement and in this manner the department had committed flagrant violation of the said verdict.

(vi) That the observation in the Supreme Court judgment that posts of Head masters/Headmistresses were not guaranteed under para. 7(2) of M.L.R. 118 of 1972, has been misconstrued and mis applied, as nowhere the said Court had held that the appellants cannot be accommodated against the posts carrying N.P.S.‑17 besides the posts of Headmasters/Headmistresses.

(vii) That the impugned orders have stretched to an illegal extent the observation of the Supreme Court of Pakistan when it only declared the two contingencies as an impediment in the way of respondents i.e. either the posts were not available due to curtailment of such posts and merger of any high school or appellant to any said post, and did not place any embargo to accommodate them to the posts equivalent in N.P.S.‑17.

(viii) That the observation of the Supreme Court of Pakistan which gave directions about the seniority of the appellants to be fixed on the strength of their length of service in the same grade or category has been completely ignored.

In the end learned counsel has laid lot of stress on the opinion of Law Department which in unequivocal terms declared that the Supreme Court of Pakistan has positively held that the appellants would be treated as absolutely a different category even than of S.S.T. (the respondents) in this case.

7. On the other hand learned counsel for the respondents Mr. Muhammad Arif and learned District Attorney, assisted by the representative of the Department, besides entering into merits of the case, have ‑‑raised the following preliminary objections:‑

(1) That the Letter and Memo dated 12‑4‑1982 and 25‑4‑1982, impugned by the appellants in the instant appeals do not answer the description of final order under section 4 of the Punjab Service Tribunals Act, 1974, therefore, the appeals were not maintainable,

(2) That subject to preliminary objection No. 1 the appellats have neither filed an application for review nor representation before the Departmental Authority, therefore, the appeals would not lie under proviso (a) to subsection (1) of section 4 of Act IX of 1974, read with Punjab Civil Servants Act, 1974.

(3) That as the decision in the case reported as Province of Punjab v. Syed Bashir Ahmad Bukhari P L D 1982 S C 27, the Supreme Court of Pakistan was pleased to declare rules as intra vires, therefore, any action against the said Rules, cannot be challenged before this Tribunal

(4) That the appellants have no cause of action whatsoever before this Tribunal under section 4 of the Punjab Service Tribunals Act, 1974, as the orders impugned, were not final in nature and the case was at the stage of being processed, which has to be submitted back to the Governor of Punjab, for his ultimate decision.

8. With regard to the merits of the case it was submitted by the learned counsel for the respondents:

(1) That the grant of N.P.S.‑17 to the appellants vide Notification, dated 4‑4‑1977, was provisional and on ad hoc basis, therefore, no vested right in this respect, can be claimed by the appellants.

(2) That the Supreme Court of Pakistan has clearly held that the appellants were not entitled to the posts of Headmasters/ Headmistresses and only their pay, drawn at the time of nationali zation was protected, therefore, the claim of the appellants that they should be absorbed against equivalent posts in N.P.S.‑17 available with the Government, was not tenable.

(3) That the prayer of the appellants about the interpretation of the Supreme Court of Pakistan judgment was a prayer, without any force, as the Supreme Court of Pakistan has the plenary powers to enforce their Judgment and to issue any appropriate directions to secure the implementation of their decision.

(4) That the judgment of the Supreme Court of Pakistan was being implemented by the Department after having consultations with the Finance Department and other functionaries of the Government including Law Department and the matter was still under consideration, therefore, the appeals are liable to be dismissed as being premature.

(5) That the action which is being taken under Rules of 1974, is fully justified in view of the fact that these rules have been declared intra vires of para. 7(2) of M.L.R. 118, by the Supreme Court of Pakistan, therefore, no exception can be taken to the merger of the appellants in the cadre of S.S.Ts. which is strictly in accordance with the said Rules of 1974.

(6) That the continuance of these appeals as well as stay orders passed by the Tribunal, would tantamount to thwarting the implementation of the judgment of the Supreme Court of Pakistan as well as Rules of 1974, governing the status of the appellants via‑a‑via respondents.

9. We have given our anxious thoughts to the contentions raised by the parties before us and have perused with respect the judgment of their Lordships of Supreme Court of Pakistan in this case. We have also taken note of various judgments of Lahore High Court, which were given earlier as well as after the judgment of the supreme Court of Pakistan, passed in various Writ Petitions before the said Court. It may also be mentioned at this stage that some of the Headmasters have filed a Writ Petition before the Lahore High Court claiming therein that Judgment of the Supreme Court of Pakistan P L D 1982 S C 27, will not be applicable to them as the respondent No.l did not file any appeal against the judgment of this Tribunal, dated 4 5‑1980. which declared the Rules of 1974, as ultra vires of M.L.R. 118. The said Writ Petition has been admitted by Mr. Justice Muhammad Afzal Lone vide his detailed order dated 27‑4‑1982 with the directions that departmental proceedings in respect of the implementation of the Supreme Court's judgment may continue but no final order, adverse to the petitioners in the said case, be passed meanwhile. After careful reading of the Supreme Court's judgment as reported in P L D 1982 S C 27, in Civil Appeal No. 1 of 1981 Province of the Punjab v. Syed Bashir Ahmed Bokhari and Civil Appeals Nos. 2 to 15 of 1981, Sh. Muhammad Yousaf, etc. v. Province of the Punjab through Secretary Education Lahore, etc., we have no hesitation to repel the contention of the appellants in this case that this judgment needs any interpretation by us. Their Lordships have given clear cut verdicts on all the issues involved and need no further elaboration. Even otherwise, we are not within our competence to interpret the said judgment, as the Supreme Court of Pakistan has plenary powers to enforce its judgments and issue any appropriate direction to secure the implementation of its own decision. What this Tribunal can adjudicate are only the matters relating to terms and conditions of service and nothing else. In this respect we are in no doubt that this Tribunal is vested with wide powers and is exclusive Court established for said purpose under Article 212 of the Constitution, which bars the jurisdiction of all other Courts, including the High Courts subject to the decision of Supreme Court of Pakistan which is the only Court of Appeal, exercising Appellate Powers, on being satisfied that case involves substantial question of law of public importance and that too after the grant of leave to said Appeal.

10. In view of above we will only highlight the observation of the Supreme Court for the guidance of respondent No.1, who is seized of the case, without any reference to the case of Fazal Elahi Ejaz and 22 others reported in P L D 1977 Lah. 549, as the view taken in said case in favour of the appellant has been overruled by their Lordships of Supreme Court of Pakistan in Judgment so before us P L D 1982 SC 27. There can be no dispute about the fact that in P L D 1982 S C 27, it has been clearly held that Rules of 1974 are intra vires of M.L.R. 118 and the appellants cannot claim as right that they should be posted Headmasters‑‑the status which they enjoyed on the date previous to the date when Government of Pakistan announced its Educational Policy, involving a scheme for nationalization of privately‑managed schools and colleges. But it can also be not denied that same Court of ultimate jurisdiction has positively held that appellants would be a category separate and distinct from the Secondary School Teachers. We will reproduce the verdict of Supreme Court of Pakistan which is as under in order to dispel any other conclusion:‑

"(15) The next and the most crucial question is as to what are the rights guaranteed to the teachers of the nationalised institutions by paragraph No.7 (2). It is manifest from a reading of this paragraph that it guarantees to the teachers of all taken over institutions:

The same scales of pay, as admissible to the teachers of colleges and schools maintained by the Government provided they have equivalent qualifications, seniority and experience.

Through this provision the Government has carried out one of its promises to the teachers of the taken over schools, namely, that they shall be 'brought at par with their brothers and sisters working in Government schools and colleges". To discover as to who is the counterpart of any particular teacher of a taken over institution in a similar institution maintained by Government, all the three factors namely, qualifications, experience, and seniority have to be compared one after the other; qualifications with qualifications to determine eligibility, experience with similar experience to determine the comparable class or category of the post and seniority, i.e. length of service with the length of service to find out the stage in the scale of pay admissible to a teacher in that category. Naturally, the first thing that must be seen is whether a teacher of the nationalised school has the basic academic qualifications required for appointment to a particular post in the Government institutions. If not, he must be compared with a teacher of next lower grade or category, for which lower basic academic qualification is required. If, however, he has the requisite academic qualification then the next thing to be compared is his 'experience. In order to determine whether a particular teacher in a nationalised school or college has similar experience, the nature of the experience shall have to be kept in mind. This would depend on the nature of his duties as a teacher. It is obvious that the experience of Drawing Master would be similar to that of a Drawing Master, and a Physical Instructor will have to be compared with that of a Physical Instructor employed in a Government‑maintained school. Similarly, the experience of a Vernacular Teachers with Vernacular Teachers, S.E.Ts. with S.E.Ts., and Headmasters with Head masters of Government‑maintained schools. No other meaning can be attached to the word 'experience' as used in paragraph No.7 (2). Although it is evident that experience of each class of teachers is different to that of the other class, it may be mentioned here that the experience of Headmasters, who have to perform administrative duties, is entirely different to that of any other category of teachers. Reference in this connection may be made to Ordinance XI of 1962, which provides for the registration of privately managed schools in the Province. All the privately managed schools which have been nationalised under M.L.R. 118 were in fact 'recognised' and registered under section 3 of the Ordinance. One of the conditions for registration required to be satisfied for the purpose of registration under section 4(2) read with Part B of the Schedule is that:‑‑

in the case of High or Middle school, the Headmaster is recognised as the sole authority in all matters connected with the internal organisation of the institution including class promotion, teacher's time‑table and assignment of work as well as discipline, freeship grant of leave and prescription of books.'

It is, therefore, evident that the kind of administrative experience that is acquired by Headmasters is of a very special nature, which no other category of teachers can claim to possess. Again, in the Government‑owned High Schools the Headmasters are treated as a separate category from the other teachers and are governed by separate rules of service called 'West Pakistan Education Service (Class II Administrative Branch) (Men's Section) Rules, 1963. Rule 3(2) of these Rules provides that the 'Service' governed by these Rules shall comprise Headmasters of High Schools, District Inspectors of Schools, Deputy Inspectors of Schools. The S.E.Ts., and other Senior Teachers are not included in the service and are governed by a separate set of rules framed in 1963. From what has been observed above we are of the view that while determining the scale of pay, as far as their experience is concerned, the Headmasters of taken over schools can be compared only with the Headmasters of Schools managed by the Government and other teachers with teachers having similar experience, i.e. doing similar work and performing the same functions in Government‑maintained schools (or colleges as the case may be).

The last factor to be considered while comparing the teachers would be 'Seniority' which means length of service in the same grade or category. It may be recalled that even in the policy letter dated 22‑5‑1974, issued by the Government it was stated that 'the basis for determining the seniority is the total length of service in the grade. In other words, for determining the pay to which he is entitled under para. 7(2), the seniority of a teacher in a nationalised school can be compared only with the seniority of a teacher in a Government‑maintained school in the same grade and doing the same job or performing the same duties or functions because seniority, for instance, of a Drawing Master, cannot, obviously be compared with the seniority or length of service of S.E.Ts. or Headmasters. We, therefore, hold that paragraph No. 7(2) ensures that once the three factors in the case of any particular teacher in a taken‑over school are compared and found equal to that of his counterpart in a Government managed institution, then, he shall be entitled to the s e pay as the latter. This guarantee cannot naturally be taken away or abridged by any subordinate legislation, e.g. rules relating to their service framed under the relevant statutes."

11.‑ We had also the benefit of perusing the case file and find that Law Secretary, as well as Additional Law Secretary candidly expressed the same view, which we have now taken with respect to this aspect of the case and submitted before the worthy Governor, when he presided over the meeting for implementation of the judgment of the Supreme Court of Pakistan. We also reproduce the submission of the Law Secretary as well as Additional Law Secretary which they made before the Governor/M.L.A. Punjab:‑

"Law Secretary stated that the crucial question as to what were the rights guaranteed to the teachers of the nationalised institutions under M.L.R. 118 has been dealt with in paragraph 15 of the Supreme Court's judgment. The teachers of all taken- over institutions are guaranteed the same scales of pay as admissible to the teachers of colleges and schools maintained by the Government provided they have equivalent qualifications, seniority and experience. To discover as to who is the counterpart of any particular teacher of a taken‑over institution in a similar institution maintained by Government all the three factors, namely, qualifications, experience and seniority have to be compared one after the other; qualifications with qualification to determine the eligibility, experience with similar experience to determine the comparable class or category of the post and seniority i.e. length of service with the length of service to find out the stage in the scale of pay admissible to a teacher in that category.

Additional Law Secretary was also of the opinion that the Supreme Court has treated the Headmasters as a category separate and distinct from that of Secondary School Teachers (S.S.Ts.). Accordingly the Headmasters are to be considered separately and not jointly with the S.S.Ts. for the purpose of determining as to what scale of pay is admissible to them. Those who fulfil the requisite qualifications, experience and seniority laid down for the post of Headmasters in Government institutions should be eligible to the scale of pay admissible to Headmasters in Government institutions. Others who do not possess any pf these requisites shall be compared with the teachers of next lower grade or category."

12. It was only then that Governor was pleased to decide that the Representatives of Education Department, Law Department and Finance Department should sit together examine the implementation and consult other Provinces, particularly the Sind Province and fresh exercise should be undertaken by treating Headmasters as a separate category and determining which of the Headmasters (appellants) were entitled to the scale of pay admissible to the Headmasters of Government institutions at the time of nationalisation. This decision was made on 4‑1‑1982. We have also read the summary for the Governor submitted by respondent No.1 which is dated 18‑1‑1982. In the said summary the respondent No.1 has submitted as under:‑

"Further progress made in this regard since then is as under:‑

(i) The Sind Province was consulted and it is learnt that the problem did not assume any serious dimensions there. Two notifications were issued by them in February, 1975. The first notification awarded N.P.S. 17 to all the teachers who ranked senior for appointments as Headmasters in the combined seniority pool of S.S.Ts. whose services were nationalised. The second notification was in respect of those who held the post as Headmasters of the privately, managed institutions on the crucial date of 14‑3‑1972 prescribed in M.L.R. 118 and also possessed requisite qualifica tions but failed to qualify for the post of Headmaster due to short length of service in the combined seniority list. They too were, however, awarded N.P.S.‑17 through adjustment/absorption against Grade‑17 posts of upgraded Middle Schools, subject Specialists and Officers on Special Duty. Some of them were even appointed as Lecturers and their services placed at the disposal of Director, College Education for further posting.

(ii) As regards the home exercise to analyse and evaluate the spread- effect of implementing the judgment as advised by the Law Department, the exercise is in full swing. A cell of three officials with Assistant Director (Regulations) as incharge fully conversant with the historical facts of nationalisation has been set up with express mandate to complete the task at the earliest. It would be appreciated that the exercises undertaken involve a colossal job as collection and compilation of data and its analytical appraisal is a must before the matter can be scrutinised in its true perspective. The exact position in this regard is likely to crystallise by the end of this month when a final summary with appropriate recommendations for implementing the judgment of the Supreme Court will be submitted."

The worthy Governor of the Punjab has seen the same on 30‑1‑1982.

13. Keeping in view all what has happened in connection with the implementation of Supreme Court of Pakistan's judgment with respect to appellants' case, we are surprised to peruse the impugned letter and memo so produced before us, as appended with these appeals and are of the considered opinion that these are absolutely contrary to what has been said or done and it seems that channel of thinking has been diverted solely on the advice of Finance Department, whereas the directions of the worthy Governor was to have a joint exercise, with positive guideline in this behalf, holding the appellants a category separate than the teachers. We are of the firm view that appellants are rightly apprehensive that if these letters ultimately attain the shape of final orders, the terms and conditions of their service are going to be badly affected for the reasons that this letter as well as memo. so impugned before us, relegate the appellants from N.P.S. 17 to N.P.S. 14 and allows the status in N.P.S.‑17 as personal, making the appellants static by single exercise of fixation of their pay scale at a particular stage, admissible to their counter‑parts. We are aware that this exercise will abridge and whittle down the chances of their promotion, as while their counter‑parts will be going up in the stage of pay scale admissible to them, the same benefit will be denied to the appellants. This sort of treatment will be against the verdict of the Supreme Court of Pakistan as well as directive of 'the worthy Governor given at the high powered meeting.

14. We are not at all impressed by the argument advanced by learned counsel for respondents that once it has been held by the Supreme Court that Rules of 1974 are intra vires of M.L.R. 118, the respondents are at liberty to treat the appellants as a class of S.S.Ts. and down grade them under the said Rules. The reasons for not accepting this argument is that judgment of the Supreme Court is to be read as whole and not in parts, while it has held the Rules of 1974 as intra vires of M.L.R. 118 and refused to accept the claim of appellants that they have to be accommodated as Headmasters but at the same time has declared the appellants a category separate than the S.S.Ts. and has directed that their pay scale will be guaranteed after finding their counter‑parts in the Government institutions subject to possession of qualification, experience, etc. via‑a‑via of said counter‑parts.

15. We also repel the preliminary objections of the respondents that the present appeal does not relate to any terms and conditions of services of the appellants the same would not be maintainable. This argument is falacious keeping in view the above analysis of the said case wherein we have held that these two impugned letter and memo definitely spell the shape of things to come and does effect the terms and conditions of the appellants as declared by the Supreme Court of Pakistan in para. 15 of its judgment.

16. We are also aware of certain queries which were made at the instance of the respondents and have perused the opinion of the Law Department in this respect. We do not feel any material deviation by the 'Law Department from the earlier opinion which they gave in the presence of worthy Governor at the time when he presided over the high powered meeting.

17. We would have certainly set aside the impugned letter and memo, if we would have found that they have attained finality after the same have been approved by the worthy Governor but as the case being still under process and has not yet been finalized, we do not consider these orders as final in any manner. We, therefore, dispose of these appeals as premature, with the directions that the respondent No.1 will look into the case keeping in view the guideline given by the worthy Governor as well as the action taken by the Sind Government in this behalf, a mention of which has been made by respondent No.l in the summary for the Governor. However, there will be no order as to costs.

A. E.

Order accordingly.

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