1972 PLP 556 (PLC)

Inspector of Schools, Lahore Division.

4. The petitioner has come up in writ petition against the aforesaid direction as contained in Annex. "D", whereby it was directed that the upgrading of the Post of the Accountant suffered from serious irregularity and that he should be reverted to his original post and grade viz., that of Rs. 75-6‑105/7‑175 with effect from 1‑7‑1962 and the excess payment should be checked up and recovered from the petitioner.

5. Learned counsel for the petitioner has argued that the aforesaid order as contained in Annex. "D" is without lawful authority. For this purpose he referred to sections 6, 10 and 13 of the Ordinance. These sections read as follows:

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6. Transfer of staff" and property on provincialisation.‑As from the said date, subject to the provisions of section 5‑ (a) all properties and assets vested in a local council for the purposes of primary education shall vest in Government for the purposes of primary education ; (b) all teachers and other staff employed by a local council in connection with primary education shall stand transferred for service to and be employed by Government on such terms and conditions including the terms regarding pay, pension and contribution to Provident Fund, as the Govern ment may determine ; provided that such terms and conditions shall not be less favourable than the terms and conditions on which such persons were employed by the local council, and (c) all rights, liabilities an 'J obligations of the local council, relating to properties and assets or to contracts, debts or payments or receipts of money, accrued or incurred immediately before the said date shall become the rights, liabilities and obligations of Government.

10. Conduct of business.‑(1) The business of the District Primary Education Committee shall be conducted at its meeting in such manner as may be prescribed. (2) Save as otherwise provided in the rules, the executive powers of a District Primary Education Committee shall vest in and be exercised by‑ (a) in the case of boys' schools, the District Inspector of Schools ; (b) in the case of girls' schools, the District Inspectress of Schools. (3) Subject to rules, the executive powers of a District Primary Education Committee shall extend to the‑ (a) conduct of day‑to‑day administration ; (b) general superintendence and inspection of Government Primary Schools ; (c) appointment of teachers and other staff for Government Primary Schools, their promotion, transfer, punishment and removal ; and (d) incurring of expenditure on any one item up to such amount as may be prescribed, or in the absence of rules, as may be specified by the District Primary Education Com mittee.

13. Staff.‑(I) A District Primary Education Committee may from time to time, with the previous sanction of Govern ment, draw up an establishment schedule specifying the establishment to be entertained for the purposes of primary education in Government Primary Schools in the District. (2) No appointment shall be made against a post not provided for in the establishment schedule except with the previous sanction of Government. (3) Government may prescribe‑ (a) the conditions of service of persons employed for the purposes of primary education in Government Primary Schools ; (b) the grades of pay of such persons ; (c) the principles to be followed in making appointments, promotions and transfers of such persons ; (d) the method of holding enquiries in cases where disciplin ary action is proposed to be taken against such persons, the penalties that may be imposed, and the manner of preferring appeals against order imposing penalties; and (e) other matters necessary for efficient discharge by such persons of their duties. (4) Save as otherwise provided by or under this Ordinance, all persons employed in a District for the purposes of primary education shall be Government servants."

6. By means of the West Pakistan Primary Education Amendment Ordinance (XXIII of 19 4), promulgated on 3‑12‑1964 certain amendments were brought about in the West Pakistan Ordinance XXIX of 1962, but as the action taken by the District Primary Education Committee in the instant case, was of 4‑2‑1963 (when it had placed a resolution granting an enhanced grade to the petitioner or to put it otherwise upgrading his post) learned counsel for the petitioner did not refer to the amended law but argued the case, when reference to the law as it stood in an amended form at the relevant time. He justified the earlier action of the District Primary Education Committee (hereinafter called the Committee) on the ground that it was a case of promotion. The argument of the learned counsel was that according to section 10(3) ibid, it was within the executive powers of the Committee to make appointments of teachers or other staff, and to grant them promotions, make transfers, and inflict punishments or removal etc. In this way, the order and resolution of the Committee, it was contended, was quite lawful and no exception could have been taken to the same. The argument is not correct for various reasons Firstly, in section 6(b) it was laid down that the previous staff was to stand transferred to the Government on such terms and conditions as the Government was to determine with the only safeguard that such terms and conditions were not to be lose favourable than the previous terms and conditions of any employee. In this way, it was for the Government to determine the new terms and conditions of the petitioner and to decide whether the post of any particular incumbent was to be upgraded or he was to be given any new enhanced grade. This job was to be performed by the Government and not the Committee. Secondly, no doubt the appointment of teachers and other staff for Government Primary Schools, and their promotion and transfer etc., fell within the executive powers of the Committee but this was neither a case of promotion nor of fresh appointment as contemplated in section 10(3)(c) on the Ordinance. Promotion is an elevation of an employee from a Junior Post to a Higher Post in the same hierarchy of service and to the prospects of which he can reasonably expect. 4 in accordance with the relevant rules on the subject. On tie other hand, upgrading of a particular post is not promotion. When a post is upgraded, the incumbent remains the same and he is not promoted from a Junior Post to a Higher Post. In other words, promotion is of a man while upgrading is of a post. It means that posts are never promoted and it is only men who are promoted.

7. When confronted with the above situation, learned counsel for the petitioners argued that the case of his client was covered by section 13 of the Ordinance as well‑inasmuch as the Committee had drawn up an "Establishment Schedule" under section 13(1) which was duly submitted to the Govern ment and to which the Government took no objection at any stage and in this way, the upgrading of the Post can legitimately be said to have been approved by the Government. This contention again is not correct. "Establishment Schedule", contemplated in section 13(1) is to be made with the previous sanction of the Government and it is admitted that no previous sanction of the Government was taken for upgrading the post in dispute or, for passing the resolution hereinbefore mentioned. A copy of the so‑called Establishment Schedule has been placed on record and its perusal will show that information with regard to the petitioner as shown therein was neither explicit nor correct. It did not disclose that the Committee had upgraded this Post. and to put it in other words, it was rather an attempt in camouflage to show as if the petitioner was already in the upgraded scale of pay and it was nowhere disclosed that it was the Committee which had itself done that. Learned counsel even otherwise could not explain to me the implication of entries in Columns Nos. 12, 13 and 14 in the aforesaid schedule. Moreover, this Schedule was never prepared with any prior sanction qua each item contained therein.

8. The last point argued was that the impugned order in the instant case had been passed by the Inspector of Schools who, according to the learned counsel, had no jurisdiction or authority to do so, especially, when he had not issued any show cause notice to the petitioner and nor had he heard him in this respect. The contention has no merit. In Para. 6 of the parawise comments, the position has been duly explained by the respondent concerned. The said paragraph reads as follows :‑ "Respondent No. 1 holds charge of the Lahore Division while respondent No. 2 of the Gujranwala District in the Lahore Division and he is thus incharge of an office subordinate to that of respondent No.

1. Moreover, respondent No. 1 Was duly authorised to check the Establishment schedule of the office of respondent No. 2 vide portions marked "A", "B" and "C" of the Government of West Pakistan Education Department's Letter No. D. E. A. 2/2063, dated the 1st of July 1964 addressed to the District Inspectors of Schools in the Lahore and Rawalpindi Regions, copies endorsed to the Directors of Education, Lahore and Rawalpindi Regions and Divisional Inspectors of Schools/Divisional Inspectresses of Schools in Lahore and Rawalpindi Regions, an extract copy of which Is enclosed as Annexure "F". It was only after this check that the irregularity was pointed out to the District Inspector of School, Gujranwala, vide Memo. No. 10346/And. dated 19‑81964 addressed to respondent No. 2 and a copy of the Memo. was also submitted to Government under endorsement No. 10347/And. dated 19‑8‑1964." No exception has been taken to the position explained by respondent No. 1 in his aforesaid parawise comments (written statement). The Divisional Inspector (respondent No. 1) had full authority to inspect the accounts and the establishment schedule which as has transpired in this case was being prepared in a camouflaged manner. The question of issuing show‑cause notice to the petitioner in the circumstances, hereinbefore mentioned, did not arise, inasmuch as, the resolution of the Committee being itself void had no status In the eye of law and could be ignored by any competent authority in that respect. Be that as it may since the petitioner has not been, able to make out any case on merits and has not been able to show that the resolution hereinbefore mentioned or the factum of the upgrading of his post was lawful, therefore, I am not, in the exercise of my discretionary jurisdiction under Article 98 of the Constitution, prepared to issue any process or to give the aid of this Court to the petitioner which would have had the effect of perpetuating an illegality and would lead to injustice.

9. The upshot of the above discussion is that this writ petition fails and is hereby dismissed with costs. Petition dismissed.