Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Cases Nos. 549/1986 and 529/2004 of 1982, decided on 8th December, 1983.
‑‑S. 4‑‑Review‑‑Tribunal has no power to review its earlier decision‑ Appeals agitating issue already decided dismissed for want of jurisdiction but certified for appeal to Supreme Court.
Dr. Khalid Ranja & Appellant in person for Appellant (in Case No.549/1986 of 1982).
A. G. Humayun, District Attorney for Respondents Nos. 1 to 5.
Riaz Anwar for Respondent No. 6.
Abdul Hakeem Sahuta for Appellants (in Case No.529/2004 of 1982)
A.G. Humayun, District Attorney for Respondents (in Case No.52912004 of 1982)
‑‑Malik Mazharul Haq, S.S.T. Government High School, Shahpur Saddar, District Sargodha has filed Appeal No.549/82 and has impleaded Government of the Punjab through Secretary, Education Department, Lahore and Director, Public Instructions, Punjab and M/s Sh. Ammar Maftoon, Muhammad Rashid, Nisar Ahmad and Muhammad Rashid Kirmani, as respondents and Mls Sultan Ali and 3 others in Appeal No. 529/2004/82. have impleaded Director of Education, Rawalpindi Region and others as respondents.
2. By virtue of these appeals, the appellants have prayed that they alongwith others described as belonging to the Provincialised Cadre (Self‑diminishing sub‑cadre) be treated at par with those similarly qualified and coming from the Government owned schools (described as General Cadre) and the discrimination shown towards the appellant and others while determining fitness to be appointed to hold a particular post or to be promoted to higher grade, in view of their coming from the taken‑over schools be declared as illegal, unlawful and of no consequence.
3. As the point of law involved in these two appeals is identical, therefore, we will dispose of these appeals with our this single judgment.
4. Brief facts leading to these appeals are that the appellants were the employees of the District Councils when in May, 1970, West Pakistan Local Council High Schools Taking‑over Ordinance was promulgated. By virtue of this Ordinance, the appellants were also Provincialised. The grievance of the appellant is not attracted against a particular order but in general it is their case that as their cadre has been merged into General Cadre they should be treated at par with them and all the promotions etc. which are to be made in the said cadre, the appellants would be entitled to the same carrying with them the entire service which they rendered before coming to the Provincial Cadre. Hence these appeals.
5. We have heard the learned counsel Dr. Khalid Ranja, Mr. Abdul Hakeem Sahuta for the appellants and learned counsel for the respondents Mr. Riaz Anwar, Syed Jamshed Ali as well as learned District Attorney Mr. A.G. Humayun and other contesting respondents who appeared themselves and have taken into account the written statements so made before us and have gone through the entire record so summoned by us.
6. Learned counsel for the appellants have laid stress on section 5 of the said Ordinance and have submitted that by virtue of said section the District Council Schools and staff thereof became merged with the schools and staff already under the control of the Provincial Government and henceforth all personnel of the High Schools, whether coming from originally Government owned schools or from those merged in. the event of Ordinance XV of 1970, were to be treated at par for the purposes of promotion, seniority and appointments. They have made a grievance that the aforesaid law and rules were given a twist by the respondents and the appellant as well as their other colleagues coming from the District Council High Schools were styled as belonging to a separate cadre within the framework of the existing education cadre of high schools known as self‑diminishing cadre and in this way have injured their rights. Learned counsel for the appellants have vehemently argued that this treatment to the appellants as a separate cadre is illegal and unlawful and was repugnant to the Ordinance of 1970. While arguing this point learned counsel for the appellants have submitted that the case of the appellants is identical to those of taken‑over schools under M.L.R‑117 read with M.L.R.‑118, and this issue went right upto the Supreme Court of Pakistan and finally it was held that the merger does not leave any room for any discrimination. Learned counsel also submitted that the appellant Malik Mazharul Haq went to the High Court in W.P. No. 569 of 1982, and the learned Advocate‑General appearing on behalf of the Government had made a statement at the Bar that the grievance of the appellants would be redressed by the Government itself. In this way lot of time was wasted and ultimately the High Court ordered that the appellant should approach the Service Tribunal which was the correct forum for redress of the grievance.
7. On the other hand learned District Attorney has submitted that he has no dispute with the conditions so laid down in the notification and section 5 of the Ordinance but has vehemently resisted the claim of the appellant that they would take/enjoy seniority with the General Cadre and Provincialised Cadre. In this manner he has relied on our judgment given on this issue in case of Ghulam Mustafa Ch. as well as Abdul Rashid and 11 others, give by us on 27‑4‑1982 and 28‑2‑1982, respectively. According to the learned District Attorney this issue has been settled down once for all and this Tribunal was pleased to hold that despite the three mergers into one cadre, the persons of appellants category would continue as self‑diminishing cadre. It has been pointed out further by the learned District Attorney that this Tribunal has clearly held in the judgment of Abdur Rashid and 11 others that the order of Governor is supreme over any other letters issued by .the Services, General Administration and Information Department and that in accordance with Governor's own decision the personnel of the provincialised schools would be considered to have been inducted into service on the date they were merged and not earlier.
8. Learned counsel for the contesting respondent No. 6 in Malik Mazharul Haq's case has raised a number of preliminary objections for the maintainability of this appeal on the ground that the appeal was not directed against any specific order or appellate order of departmental authority and as such is not competent under section 4 of the Punjab Service Tribunal Act, 1974. It was further argued that if it is accepted though not conceded that the appeal was not directed against the order, dated 10‑5‑1981 Annexure "K", passed by respondent No. 2, effecting promotion and transfers of various S.S.Ts. and Headmasters then the appeal was barred under proviso (a) to section 4, as no appeal was filed against this order to the next authority as provided by section 21 of the Punjab Civil Servants Act, 1974. Learned counsel for contesting respondent while dealing with the case on merits, has submitted that the Government has also created a separate self diminishing cadre of the teachers and the Headmasters of nationalized schools vide Punjab Nationalized Schools (Men and Women Section Teaching Posts) Rules, 1974, framed under para. 13 of M.L.R. 118 and the Supreme Court of Pakistan upheld the validity of the said rule vide its judgment reported in P L D 1982 S C 27. Ultimately it was argued that the case of appellant Malik Mazharul Haq was highly misconcieved as the creation of a separate and self diminishing cadre, was for the benefits of the teachers and Headmasters of High Schools so that they could have the chances of promotion on the basis of their inter se seniority to fill the vacancies in their schools. It was submitted that if they were placed in the General cadre they would have been placed at the bottom of the seniority list as their date of appointment is 1‑6‑1970. In this way none of them would have remained as Headmaster and would have been immediately reverted because most of them did not fulfil the condition of eight years service as S. S. T. as prescribed by rule 6 of West Pakistan Education Services (Class II‑Administrative Branch) (Women Section) Rules, 1963, and further not a single S.S.T. would have been promoted as Headmaster nor they would have got any selection grade which was usually given after 10/12 years service.
9. We have given our anxious thought to the arguments so advanced by the parties and without going into the merits of the arguments advanced by the learned counsel for the respondent, what we find is that we have already in our two judgments so mentioned above, have given clear cut decision regarding this issue. and cannot deviate from the same. We have told the learned counsel for the appellant that there is no provision available to us under the Punjab Service Tribunal Act, 1974 or Rules framed thereunder by which we can review our earlier decision and the only remedy would be to seek redress through an appeal before the Supreme Court of Pakistan. There are already two appeals before the Supreme Court for adjudication. Confronted with this situation the learned counsel for the appellants have submitted that they have no dispute with the same in view of the clear cut position of law with regard to the powers of review of this Tribunal so settled down by various judgments of this Tribunal as well as Supreme Court of Pakistan and have requested that this case may be certified for appeal to the Supreme Court of Pakistan as this legal issue is already under consideration before their Lordships. We agree to the same and certify this case for appeal while dismissing the same as without any justification. However, there will be no order as to costs. Judgment be communicated to the parties.
M. I.
Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer