P L D 1972 Lahore 1 (PLP)

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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 Government 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 and 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 rights, liabilities and obligations of Government.

7. This section was amended by section 3 of Ordinance XXIII of 1964, promulgated on the 3rd of December 1964. The amending section may be reproduced here with advantage:- "

3. Amendment of section 6, W. P. Ordinance XXIX of 1962.--In section 6 of the principal Ordinance- (a) in clause (a), in between the word "assets" and the word "vested", the brackets and the words "(including any unspent grants or unspent part of grants)" shall be inserted ; (b) for clause (b), the following clause shall be substituted, namely:-- "(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 the same terms and conditions as are applicable from time to time to teachers and staff of corresponding categories in Government service ;" and (c) in clause (c), the full-stop occurring at the end shall be replaced by a colon; and thereafter the following provisos shall be added, namely :- "Provided that nothing contained in this clause shall affect the liability of the Local Council in respect of arrears of salaries, allowances, contributions to the General Provident Fund, and other dues of the teachers transferred for service to Government under clause (b), accrued up to the thirteenth June 1962; Provided further that Government may exempt, either wholly or to such extent as it may deem fit, any local council from the liability referred to in the proceeding proviso."

8. It will be seen that whereas the unamended clause (b) of section 6 of the Ordinance contained a guarantee that the terms and conditions of employment of the transferred personnel shall not be less favourable than those on which such persons were employed by the Local Councils, the amendment introduced by Ordinance XXIII of 1964, provides that such persons shall be employed by Government on the same terms and conditions as are applicable from time to time the teachers and staff of corresponding categories in Government service. This legislative change thus bad the effect of doing away with a comparison between the old terms and conditions of service of such employees under the Local Councils and those made applicable to them under the Provincial Government, and instead brought them on par with teachers and staff of corresponding categories in government service. Now, the question is regarding the effect of this Legislative provision on the pension admissible to the plaintiff-respondent.

9. On the 7th of June 1963 West Pakistan Civil Services Pension Rules, 1963, were promulgated and it was provided that they shall have effect from the 14th of October 1955. Rule 4.1 (1) of these Rules, lays down that "The amount of pension that may be granted is determined by the length of completed years of qualifying service of a Government servant as set forth in rule 4.4." Rule 2.1 spells out the conditions of qualification as being (i) the service must be under Government, (ii) the service must not be non-pensionable, and (iii) the service must be paid by Government from the provincial Consolidated Fund. There is a note appended to this rule which says that for the previous service of displaced Government servants which qualifies for pensions see Chapter VII". A reference to Chapter VII (rule) 7-2 shows that a displaced Government servant shall be entitled to count previous service towards pension under the Government of West Pakistan provided that certain conditions, mentioned in clauses (i) to (vi) of the rule are fulfilled. Absorption into Government service of the teachers.--It seems to me that the effect of the compulsory and other staff employed by a Local Council in connection with the primary education is that for purposes relating to terms and conditions of service such teachers and employees are to be regarded as Government servants of the corresponding categories, with the necessary consequence that the pension would have to be allowed in accordance with the provisions contained in the West Pakistan Civil Services Pension Rules, 1963. These Rules, as already seen, contain provisions in Chapter VII thereof to the effect that the service rendered by displaced persons in India would be counted provided certain conditions are fulfilled. The condition that such service must be under Government would, of necessity, have to be interpreted in the present context as meaning continuous service under the local body concerned, for the reason that these employees have been transformed into Government employees by operation of law, namely, Ordinance XXIX of 1962. Any other interpretation would amount to depriving these employees of the benefit of long continuous service rendered by them in the corresponding grades prior to the 1st of July 1962. In the unamended clause (c) of section 6 of the relevant Ordinance, it was laid down that "all rights, liabilities and 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". However, by the amending clause, introduced by section 3 of Ordinance XXIII of 1964, the following proviso was added in this behalf, namely, "Provided that nothing contained in this clause shall affect the liability of the Local Council in respect of arrears of salaries, allowances, contributions to the General Provident Fund, and other dues of the teachers transferred for service to Government under clause (b), accrued up to the thirteenth June 1962". It was submitted by the learned Additional Advocate-General that the proviso added in 1964 showed that the intention was that the liability for pension or provident fund accruing up to the 13th of June 1962 would be met by the Local Council and not by the Provincial Government, and, therefore, the plaintiff could not claim his full pension from the Provincial Government. The argument is misconceived. Clause (c) of section 6 of the Ordinance, as amended in 1964, only seeks to fix the liability of the Local Councils vis-a-vis the Provincial Government; it has A nothing to do with the pension claimed by a retiring teacher or other employee who has to be deemed to be a Government servant by operation of law. It is not the headache of the Government servant concerned as to how his pensionary liability is to be shared by his present employer and the previous employer from whose control his services were compulsorily acquired by the Government. To put it differently, the proviso introduced in 1964 merely takes care of the allocation of financial liability between the Provincial Government and the Local Councils, without any reference to the right of the individual employee to receive the salary, allowances or pension due to him under the rules applicable to Government servants of the corresponding categories.

12. The learned Additional Advocate-General has placed on the record a large number of circular letters containing the instruction of Government on the question of payment of pensions etc., to the category of employees like the plaintiff. A brief reference to these letters appears to be of some advantage in answering the question raised here.

13. Letter dated the 6th of January 1971, bearing No. S. O. VI (PRO)-11-84/70, from the Government of the Punjab, Basic Democracies, Social Welfare and Local Government Department to all Commissioners etc., lays down that "After careful consideration it has been decided by the Government of the Punjab. That the benefit of the past service of the displaced refugee employees of the various local bodies rendered by them in Local bodies in the Punjab and the Punjab States of India will be allowed to them by counting their pre-Independence period of service towards their pension. This additional expenditure shall be borne by the respective local bodies in the Punjab Province (Pakistan) where the refugee employees have served or are still serving". Again, in a letter dated the 23rd of April 1969 bearing No. DE.A-1/32-64, from the Advisor (General Education) & Ex-Officio Joint Secretary-I, Government of West Pakistan. Education Department, Lahore, it was contemplated that "The Liability of each District Council/Town Committee, towards pension contribution in respect of the persons transferred to Government on 1-7-62 is to be worked out in accordance with the formula prescribed in Appendix B of Chapter X of the Civil Service Rules (Punjab) Vol. I, supposing that the staff in question started their career as Government servants and remained on deputation with the local councils concerned up to 30-6-62."

14. In still another letter, bearing No. DEA-1-32-64, dated the 20th of September 1969 from the Secretary to Govern ment of West Pakistan, Education Department, Lahore, it was laid down that "It has now been decided by the Government to give pension to the employees of the schools to question from the date they entered the Local Body Service. The notification of the Government in this regard will be issued shortly". The same position was reiterated with regard to teachers of primary schools in letter No. DEA-1/32-64, dated the 18th of March 1970. Clause (1) of this letter stated that "The teachers of the former Punjab employed by Local Councils in connection with primary education whose services were provincialised on 1-7-1962, would be eligible to receive pension on the basis of their total service i.e. before 1-7-1962 under the local councils and from 1-7-62 under the Government of West Pakistan." The last paragraph of this letter stated that a similar proposal to give pensionary rights to other categories of staff was under consideration.

15. The cumulative effect of the communications, mentioned in the preceding paragraphs, leaves no doubt that intention of Government has all along been to count the entire continuous service of those employees for the purpose of pension and other benefits. However, on the 21st of December 1970 memorandum bearing No. DEA. 1/32-64, was issued by the Secretary to the Government of the Punjab in the Education Department to certain Directors of Education laying down, in paragraph 2 thereof that the service rendered by the teachers prior to Independence under the local bodies now forming part of India, should not be treated as service qualifying for pension. Clause (a) of para. 1 of this letter nevertheless indicates that service rendered under the local bodies in Pakistan prior to the 1st of July 1962 is to be counted although the financial liability is to be separately allocated to the Provincial Government and the local bodies concerned.

16. It was submitted by the learned Additional Advocate General that the instructions embodied in this latest circular show that the service rendered by the plaintiff respondent before Independence cannot be counted, and to that extent the Courts below have erred in calculating the pension by including this service. There is, however no merit in this submission. In the first place, the letter does not in terms apply to the non-teaching staff, and, therefore, the case of the plaintiff-respondent is not covered by this circular. In the second place, the direction contained in para. 2 of the letter dated the 21st of December 1970, seems to me to run counter to the guarantee contained in clause (c) of section 6 of Ordinance XXIX of 1962 to the effect that the teachers and other staff employed for the purpose of primary education under the Local Councils shall be given the same terms and conditions as are, from time to time, applicable to Government servants of corresponding categories. I have heady pointed out that under the West Pakistan Civil Services Pension Rules, 1963, service rendered prior to Independence is to be counted, subject to certain qualifications mentioned in Chapter VII of those rules. Such being the case, it would be ultra vires of the statute to lay down that previous service shall not be counted. The law, under which the services of these employees were provincialised does not permit of a different treatment being accorded to them in the matter of counting pre-Independence service In one of the circulars, mentioned by me earlier, it has already been stated that such employees are to be deemed to have entered Government service right from the beginning. This is the only interpretation which can be placed on the relevant statutory provisions, which do not contain any saving clause with regard to the service rendered by these employees prior to the date of provincialisation.

14. For the foregoing reasons, no doubt is left in my mind that the two Courts below were right in holding that the plaintiff-respondent was entitled to full pension for the continuous service rendered by him for over 39 years, commencing from the 22nd of August 1927. At the same time, it is clear that if the plaintiff has received any benefits by way of contributory provident fund or gratuity from the Local Council to which he would not otherwise be entitled as a Government servant of the corresponding category, then such benefits will have to be refunded by him in order to enable him to receive the full pension of Rs. 210 per mensem calculated on the basis of his continuous service from 1927. To put it briefly, the intention of the law is that the plaintiff -respondent and all other teachers and employees of his category must be treated as Government servants of the corresponding category and given benefit of their continuous service as if they had entered Government service right from the beginning. The appeal, therefore, fails, and is hereby dismissed. In view, however, of the legal questions involved, the parties are left to bear their own costs. Appeal dismissed.