1984 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN).‑Mrs. Fizza Qasim alias Mrs. Fazeela Zohra Qasim Khan and Mst. Mukhtar Akhtar, Headmistresses, have filed these appeals under section 4 of the Punjab Service Tribunal Act, 1974 against the order of respondent No. 2, contained in his order No. 11136/ HE‑1, dated 6th December, 1981. They have impleaded the Punjab Govern ment through the Secretary, Department of Education, Civil Secretariat, Lahore, the District Education Officer (Women) Lahore, Mrs. Zarina Yasoob, S. S. T., Zia Girls Middle School, Kasurpura, Lahore, (in Appeal No. 252/1679 of 1982) and Mst. Ruqaya Bano, S. S. T. Bona Dea Girls Middle School, New Samanabad, Lahore (in Appeal No. 251/1678 of 1982), as respondents. 2. By virtue of these appeals they have prayed that the appeals be accepted and impugned order, dated 6th December, 1981 be declared as being without lawful authority and of no legal effect. 3. As in both these appeals, point of law is identical and the facts are almost the same except the date of birth of these two appellants. So we will dispose of these appeals with one single judgment. 4. Brief facts of the case are that both the appellants are Matriculate and passed their Matriculation Examination in 1953 and 1949, from the University of the Punjab. Mrs. Fizza Qasim alias Mrs. Fazeela Zohra Qasim Khan was born on 1st July, 1938 and Mst. Mukhtar Akhtar on 28th November, 1928. We will give service history of each of the appellants as under Mrs. Fizza Qasim alias Mrs. Fazeela Zohra Qasim Khan This appellant established Zia Girls Middle School, Kasurpura, Lahore, and assumed the office of Headmistress thereof. This school was duly register ed with the Department of Education under the West Pakistan Registration of Unrecognized Educational Institutions Ordinance, 1962. Subsequently in 1968, the school was upgraded as a Middle School and the appellant con tinued to run it as Headmistress. From the date of its establishment to the date of appeal so filed, the appellant had been running the said school as a Headmistress. The school of the appellant was nationalized under MLR‑118 commonly known as a Privately Managed Schools and Colleges (Taking Over) Regulation, 1972. This school stood nationalized on ‑19th February, 1973 under para. 5 of MLR‑118, with retrospective effect from 1st October, 1972. On 6th December, 1981 Respondent No. 2 issued order No. 11136/NE‑I which is now impugned before us. According to this order the appellant was reverted to the status of a teacheress on the sole ground that she did not possess the requisite qualification of B .A., B. Ed., which was a qualification for the Headmistress of the Middle School. Mst. Mukhtar Akhtar The appellant passed Matriculation examination in 1949 and attended a two years training course at the Lady Maclagan Training College, Lahore in the' Session 1951‑53. On successful completion of the said course, the appellant was declared "qualified to teach in the Middle and Primary Department of an Anglo‑Vernacular or Vernacular School". A copy of the certificate, dated 17th May, 1954 granted by the Education Department, Punjab, was placed on record as Annexure `B'. After teaching in various institutions from 1955 to 1962, on 1st October, 1962 the appellant established the Bona Dea Model Girls Middle School and assumed the office of Headmistress thereof. The said school was registered under the West Pakistan Registration of Unrecognized Educational Institutions Ordinance, 1962, copy of certificate of registration, dated 27th April, 1963 is annexed as `C' on the record. The appellant remained Headmistress from the date of establishment of said school uptil the time, the impugned order was passed. The school of the appellant was duly nationalized under MLR‑118, with retrospective effect from 1st October, 1972 vide notification, dated 19th February, 1973. However, vide impugned order, dated 6th December, 1981 passed by the Respondent No. 2, the status of the appellant was reduced to that of Teacheress against which both the appellants filed writ petition before the High Court and later on I.C.A. before the said Court, but they were directed to approach the Tribunal as the matter before the High Court related to terms and conditions of their service and the Punjab Service Tribunal being a Court of exclusive jurisdiction in this respect, they were directed to file appeal before the same. 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 Department and have perused the record of their cases carefully with their assistance. 6. Learned counsel for the appellant has submitted that till to date no law/rules have been made with respect to the appellant's class/category and the Punjab Nationalized Schools (Men and Women Sections) Teaching Posts Rules, 1974, do not apply to the appellant regarding whose class/ category, no provision has been made therein. Learned counsel has also challenged the validity of the order on the ground that no order can be Passed unless the executive authorities have the authority to do so under properly by framed Service Rules. Learned counsel for the appellants had based his claim for assailing the order on the ground that it violated the constitutional guarantees/safeguards provided to the appellants under the interim Constitution of 1973, the Laws (Continuance in Force) Order, 1977, and continued by the Provisional Constitutional Order, 1981. It has been further argued that the argument of the respondents that the appellant possess lower qualification, is falacious on the ground that no basic academic qualification for Headmistress of Middle Schools ire anywhere prescribed. It was also further submitted that the teaching experience of the appellants, which is fairly a long period, has been absolutely ignored. 7. On the other hand, the claim of the appellants has been repelled by the learned counsel for the respondent, on the sole ground, that they being Matriculate only, did not fulfil the requisite qualification of B.A., B. Ed., which was laid down for the post of Headmistress. It was also denied that the appellants were in any way reduced in rank by virtue of the order, dated 6th December, 1981 issued by respondent No. 2, whereas they were adjusted against their original posts and according to the Service Rules. He has vehemently argued that in view of the Supreme Court's ruling in Civil Appeals Nos. 1 to 15 of 1981 announced on 10th November, 1981 it was held that para. 7 of MLR‑118 did not grant the post but only protected their pays etc. and not the status. 8. We have given our anxious thought to the argument, so advanced by the parties before us and find that the reliance of the respondents is mainly on the West Pakistan Education Department Subordinate Regional Service (Administrative Branch) (Men's Section) Rules, 1962, dated 11th October, 1962 in defence of the impugned order. We have also seen in this respect the West Pakistan Education Department Subordinate Regional Service (Teaching and Administrative Branch) (Women's Section) Rules, 1965, dated 2nd June, 1965 and find that the same are not applicable for the following reasons (a) That the said Rules only lay down the minimum qualification pres cribed for appointments by initial recruitment while the appellants' case is not one of the initial recruitment. (b) That the said Rules do not even mention the post of Headmistress of Middle Schools nor is any qualification prescribed therein for the said post. (c) Rules 6 and 7 of the said Rules regarding method of recruitment and age make it abundantly clear that they do not apply to the appellant. We have taken into consideration the arguments of the respondents that the Punjab Nationalized Schools (Men and Women Sections) Teaching Posts Rules, 1974, although held to be intra vires by the Supreme Court of Pakistan in Bashir Ahmad Bukhari's case (PLD 1982SC 27) yet the case of the appellants is different from the basic reasons that these Rules only regulate the appoint ments of persons holding qualifications as per 1962 and 1965 Rules. Sin the case of the appellants is neither covered by Rules of 1962 and 1965 Rules, the question of application of 1974 Rules does not arise. The Rules of 1962 and 1965 do not provide any qualifications for the post of Headmistress o the Middle Schools as such the case of the appellants is not attracted to the mischief of the said Rules. The case of the appellants being a case of promotees and not the case of initial appointment recruitment, therefore, their case do not fall within the purview of the ruling of the Supreme Court in Bashir Ahmad Bukhari's case, as this aspect of the case had never come under consideration. However, it is a well‑established principle of law that the rules are always applied prospectively and not retrospectively. We also further find that the claim of the appellants for protection of their salaries virtue of para, 7 (2) of MLR‑118, read with the Constitutional Provision given Article 180(7) combined with the fact that the Rules Makin Authority failed to make rules with respect to the appellants class category, we are of the considered opinion that the protection taken by the respon dents as laid down in Bashir Ahmad Bukhari's case by the Supreme Court of Pakistan, is not available to them. The appellants have served for a pretty long time as Headmistresses of the Middle Schools, the institutions which were initially established by them, it would be against the principle of locus poenitentiae as laid down in Muhammad Nawaz scale by the Supreme Court of Pakistan to reduce them to a status of Teacheress, when, as discussed in the earlier part of our judgment, we do not find any particular rule framed anywhere for holding of such posts by the category of persons like appellants. 9. Learned counsel for the appellants has also relied on the following rulings (1) P L D 1978 Lah. 738 (2) P L D 1969 Lah. 786 (3) P L D 1979 S C 1 (4) P L D 1978 Kar. 744 (5) P L D 1970 Lah. 6 (6) P L D 1960 Dacca 854 We have perused these rulings and find that the ratio decidendi of all the judgments is in favour of the appellants, as no particular rules being in the field the case of the appellants should have been attended according to their existing status. 10. In view of the above discussion, we do not find any force of the arguments of the learned counsel for the respondents, and therefore, proceed to accept the appeals, set aside the impugned order. There will be no order as to costs. Judgment may be communicated to the parties. A. P. Appeals accepted.