2006 PLP 535 (SCMR)

RAJA FAYYAZ AHMED, J.

Civil Petitions Nos.1032 and 1033 of 2003 are directed against a common judgment, dated 5-3-2003 of the learned Federal Service Tribunal, Islamabad passed in Appeals Nos.642 and 643(R)/CS of 2001 dated 5-3-2003, whereby the appeals filed by petitioners Nos.1 and 2 namely, Inayatullah, Director Physical Education (D.P.E.) in BPS-17 (In C.P. No.1032 of 2003) and Muhammad Javed Iqbal, Physical Training Instructor (PTI) in BPS-16 (In C.P. No.1033 of 2003) have been dismissed.

2. We propose to dispose of the above mentioned civil petitions by this judgment, as common questions of facts and law are involved therein.

3. The brief facts of the case are that the Ministry of Education re-organized the `General Cadre' of the teachers working in Federal Government Educational Institutions at Islamabad and the Federal Area into a `4-Tier Structure' vide Notification dated 4-9-2000, reproduced hereinbelow:-- "Government of Pakistan, Ministry of Education Islamabad Dated 4-9-2000 Notification No.F.3-12/96-SA(FDE)A.III. The competent authority has been pleased to approve re-organization of the existing cadre of Principal/Vice-Principal/ Headmaster/ Headmistress/ Deputy Headmaster/Deputy Headmistress/Senior Teacher and Trained Graduate Teachers (SG) working in Federal Government Schools/Higher Secondary Schools Islamabad and Federal Area as per revised 4-Tier Structure for Federal Government School Teaches in the ratio of 1:15:34:50 for BPS-20, BPS-19, BPS-18 and BPS-17 respectively. Resultantly, the present sanctioned strength of 348 (male) and 443 (female) posts of the Schools/Higher Secondary School Teachers (General Cadre) as on 30-11-1999 are upgraded and re-designated to BPS-20, BPS-19, BPS-18, BPS-17 as detailed below:-- Cadre Principal (BPS-20) 1% of total Strength Principal (BPS-19) 1.5% of Total? Strength H/Master/H/ Mistress/ V.P./? TGT(SG)/ S. Teacher (B- 18)( 34% of total strength Dy. Head? Master/ Dy. Headmistress/ TGT(SG) Senior Teacher (B- 17) 50% of total strength Total Male 4 52 118 174 348 Female 4 66 151 222 443 The above revised upgradation/re-designation will be subject to the following: (i) The advance increments for acquiring/possession higher qualification will not be admissible for which higher scales are now sanctioned. (ii) The Ph.D. allowance for acquiring/possession higher educational qualification will continue to be admissible. (iii) The award of selection grade @ 33% will also cease to be admissible for which higher pay scales are now sanctioned. (iv) It shall be governed by such recruitment rules as framed/shall be framed from time to time for filling up the posts by promotion/recruitment as per prescribed rules. (v) The upgradation shall take effect from the date upgraded posts are actually filled in the prescribed manner. (Sd.) Muhammad Munir Arif Education Officer. The Manager, Gazette of Pakistan Printing Corporation of Pakistan Press, Karachi." In the above mentioned 4-Tier notified Scheme, the teachers of Physical Education are not included in the re-organization set up involving upgradation/re-designation of `General Cadre' of teachers. The petitioners claimed to have informally agitated against the stated discrimination meted out to them but their grievances were not redressed, so they filed written representation, dated 27-6-2001 requesting for induction of Trained Graduate PTIs (B-16) and DPEs (B-17) in the 4-Tier structure meant for teachers of Federal Government Educational Institutions. It is the case of the petitioners that as their representation remained un-responded, they filed separate service appeals before the learned Federal Service Tribunal, Islamabad, hereinafter referred to as `the learned Tribunal', in which the following reliefs were claimed: "Service appeal may kindly be accepted with costs and the cadre of Physical Training Instructors (SG) may kindly be included in the Re-organization Scheme, by modifying the impugned Notification, dated 4-9-2000, with all consequential back-benefits."

4. Record reveals that in the past the DPEs and PTIs were denied advance increments on acquisition of degrees and higher educational qualification, which was granted to them as a result of the judgment of the learned Tribunal but they were not upgraded to B-16, while the other teachers of the general cadre involved in imparting education to students were upgraded and their appeals regarding upgradation failed before the learned Tribunal against which they filed civil petitions before this Court and leave was granted, however; during the pendency of appeals, the department allowed upgradation to PTIs (senior) from B-15 to B-16 with effect from 22-8-1997, whereas; their claim was that they should be upgraded w.e.f. 1-6-1991 when other teachers were so upgraded. Eventually, their appeals were allowed by this Court vide judgment, dated 24-1-2001 reported in Ahmed Hussain and others v. Director of Education, Islamabad and others 2001 SCMR 955, wherein it was held that the appellants shall stand upgraded and placed in B-16 w.e.f. 1-6-1991 with all consequential benefits. The relevant observations of this Court made in the above quoted judgment are reproduced hereinbelow: "There does not seem to any reason to justify the refusal to grant upgradation to the appellants with effect from 1-6-1991 in that their cases are at par with all the existing Trained Graduate/Untrained Graduate Teachers i.e. B.A./B.Sc., B.Ed. working B-15 in Federal Government Educational Institutions Islamabad/Federal Area. Admittedly all the above teachers have been placed in B-16 with effect from upgradation of the post i.e. 1-6-1991, vide Notification No.F-90/91 (SA)FME. This being so, we see no reason why discriminatory treatment be meted out to the appellants qua the other teachers similarly placed."

5. Mr. Fazal Ellahi Siddiqui, the learned Advocate Supreme Court for the petitioners, Mr. Nasir Saeed Sheikh, the learned D.A.-G. have been heard at length.

6. It has been, inter alia, contended by Mr. Fazal Ellahi Siddiqui, the learned Advocate Supreme Court for the petitioners that the impugned notification runs counter to the letter and spirit of the judgment of this Court reported in 2001 SCMR 955 (supra), as discriminatory treatment has been meted out to the PTIs and DPEs, as they have been in violation of the above cited judgment of this Court and the constitutional guarantees stand excluded from the 4-Tier Structure formulae meant for the Federal Government School Teachers in the given ratio with the result that they despite enjoying equal status and having equal and even higher educational qualifications stand deprived in the line of promotion to further higher grades as compared to the Federal Government School Teachers governed vide impugned notification. According to the learned Advocate Supreme Court, PTIs and the DPEs have been described as a separate cadre with the same terms and conditions of service so as to exclude them from the common seniority list of the Federal Government Schools Teachers although; a good number of PTIs in view of their higher qualification are imparting education to the students. The learned Advocate Supreme Court maintained that for all intents and purposes the PTIs and the DPEs in view of their equal status and being at par with the other school teachers, as well as; having acquired higher qualifications are entitled to earn promotions to the next higher grades at par with the other school teachers, i.e. senior English' teachers, headmasters and so on and be included ratio-wise in the 4-Tier Structure re-organized by the Federal Government by impugned notification.

7. The learned D.A.-G. for the respondents controverting the contentions put forth on behalf of the petitioners contended that by no stretch, the impugned notification can be treated as discriminatory to Article 25 read with Article 4 of the Constitution of the Islamic Republic of Pakistan, as well as; none of the constitutional guarantees in such behalf by issuing the notification in question have been offended or violated. According to the learned D.A.-G., the notification exclusively relates to the school teachers of general cadre involved in the imparting education to the students including Headmasters and Deputy Headmasters, Principals and Vice-Principals in BPS-17 to BPS-20, directly concerned with and to act for ensuring effective education to the students and other allied matters, as well as; to objectively run such institutions, which thus, by dint of the nature of their duties are quite distinctive to the one entrusted and being discharged by the PTIs. and DPEs irrespective of their individual educational and higher qualifications, as it be. The marked distinction between the general cadre of teachers and the PTIs and DPEs relates to the nature of duties of each cadre hence the latter were not merged into general cadre of secondary school and higher secondary school teachers. The learned D.A.-G. pointed out that right from the very beginning PTIs and DPEs belong to a separate and distinctive cadre of service and get their further promotions up to the highest post and grade within the cadre which cannot be amalgamated with the school teachers etc. in the re-organization of the existing cadre of principal/vice-principal/headmaster/ headmistress/deputy headmaster/deputy headmistress/senior teachers and trained graduate teachers (SG) working in the Federal Government Schools/Higher Secondary Schools, Islamabad and Federal Area as per revised 4-Tier Structure, for the Federal Government School Teachers in the given ratio introduced vide notification in question which according to the learned D.A.-G., embraces the entire lot of the specified class of teachers etc. permissible, as a reasonable classification, not violative of the constitutional guarantees.

8. The contentions put forth by the learned Advocate Supreme Court for the petitioners and the learned D.A.-G. for the official respondents have been considered in the light of the impugned judgment and the documents available on record, gone through and scrutinized carefully. The case-law cited by the parties' learned counsel have also been considered and perused. It is an undisputed feature of the case that from, the very inception of the cadres comprising of the general cadre of the school teachers of the Federal Government and the Physical Training Instructors (PTIs) and so on including Directors Physical Education (DPEs) belonged to two separate and distinctive cadres irrespective of their grades, pay scales and other terms and conditions of their service, therefore, it can hardly be assumed that PTIs and other belonging to the category and class primarily concerned with the physical education of the students for their physical health, fitness etc. of the schools of the Federal Government perform and discharge their functions, as school teachers, who are directly concerned with and imparting education to the students for which they have been inducted into service. It is also an undisputed fact that by dint of the nature of their duties the PTIs and other staff members belonging to this group and cadre do not perform their duties and discharge their functions; as entrusted and being done by the school teachers belonging to general cadre of school teachers. In the past, DPEs and PTIs were denied advance increments on acquisition of Bachelor degrees and higher educational qualifications as extended to other school teachers belonging to the general cadre, however; such relief was granted to them, as a result of the judgment of the learned Tribunal, but they were not upgraded to B-16, while the teachers of the general cadre were upgraded and their appeals regarding upgradation failed before the learned Tribunal. Eventually upgradation was allowed to the PTIs (senior) from B-15 to B-16 w.e.f. 22-8-1997, during the pendency of their appeals before this Court, whereas; their claim was that they should be upgraded w.e.f. 1-6-1991 when other teachers were upgraded. Their appeals were allowed by this Court on 24-1-2001 and it was held that the appellants shall stand upgraded and placed in B-16 w.e.f. 1-6-1991 with all consequential benefits and it was observed that there does not seem to any reason to justify refusal to grant upgradation to the petitioners w.e.f.1-6-1991 being at par with all the existing Trained Graduate/Untrained Graduate Teachers i.e. B.A./B.Sc., B.Ed. working in B-15 in Federal Government Educational Institutions, Islamabad/Federal Area and admittedly all such teachers have been placed in B-16 with effect from the date of upgradation of the posts i.e. 1-6-1991 and this being so we see no reason to discriminate the appellants qua the other teachers similarly placed vide judgment of this Court reported in 2001 SCMR 955 (supra).

9. It has strenuously been contended before us by the learned Advocate Supreme Court for the petitioners that since the DPEs and PTIs belong to the teachers cadre though not involved in imparting education in the Federal Government Educational Institutions, Islamabad/Federal area enjoying the same pay scales of the grades, as well as; some of them in view of their higher educational qualifications have been at time entrusted with the duties to deliver lectures to students and taking classes, therefore, they could not be treated differently and discriminated as far as their merger into general cadre of school teachers is concerned. Undisputedly the PTIs are primarily concerned and entrusted with the duties concerning the physical education of the students of the above said institutions have been declared and notified as teachers of the institutions equal in grade as compared to other school teachers of general cadre including other terms and conditions of their service, enjoying the same pay and privileges despite some of them having acquired additional educational and higher qualifications, as contended before us, are not directly concerned nor entrusted with the duties to provide and impart education to the students of the above said educational institutions. Moreover; the PTIs and other staff members belonging this group were admittedly inducted in the services on the basis of their eligibility, as such; to provide physical education to the students for their physical fitness, alertness etc and they never before agitated or claimed by dint of their educational qualifications to be legally entitled, treated and dealt with, as school teachers belonging to the general cadre involved in providing education to the students in the light of the prescribed syllabus relating to various science, Mathematics and other subjects of studies nor merely on account of educational qualifications of the PTIs and other staff members acquired by them, if any, subsequent to their induction into service relating to physical education for which they were found to be fit for appointment; can claim as a matter of right to be amalgamated and merged into the general cadre of school teachers etc. directly inducted into the service for providing education to the students in view of their eligibility to impart education to the students, as per their courses of studies, therefore, it could not be said that discriminatory treatment has been meted out the petitioners by not merging them in the general cadre of school teachers, re-structured vide impugned notification, which exclusively related to the teachers of the general cadre, upgraded and re-designated to BPS-20, BPS-19, BPS-18 and BPS-17 in the given ratio keeping in view the present sanctioned strength of the male and female posts of the schools/higher secondary school teachers as on 30-11-1999. The general cadre of the school teachers, as it stood on 30-11-1999, has been upgraded and re-designated vide impugned notification, which abundantly shows that never before the PTIs and other staff members of the same group belonged to the general cadre of the school teachers and had it been so, of course, the petitioner could have validly claimed to have been treated with discrimination but, as noted above, it was never the claim of the petitioners since their induction into service that they for whatever reasons belonged to the general cadre of school teachers and for the first time subsequent to the issuance of impugned notification dated 4-9-2000, providing revised 4-Tier Structure for the Federal Government School Teachers in the given ratio resulting into upgradation and re-designation of the school teachers of the general cadre, as it stood on 30-11-1999, the petitioners, have belatedly started claiming to have been illegally excluded, as a class vide impugned notification, but such exclusion claim is not well-based for the simple reason that the petitioners never belonged to the general cadre of the school teaches to which they have been allegedly excluded and thereby deprived to further promotions in BPS-17 and to above grades. The fact remains that the general cadre of the school teachers, as it stood on 30-11-1999, has been restructured by introducing revised 4-Tier Structure Scheme involved upgradation and re-designation of the general cadre of the school teachers having no nexus or relevancy to the cadre to which the PTIs and other staff members including DPEs belonged; so their claim to have been discriminated appears to be devoid of any substance nor for the above mentioned reasons it could be legitimately claimed that the impugned notification runs counter to the letter and spirit of the judgment of this Court reported in 2001 SCMR A 955 (supra) which exclusively relates to the entire class and category of the school teachers of the physical education cadre of the Federal Government Education Institutions of Islamabad/Federal Area being run by the Federal Government. The impugned notification in our considered .view does not offend the provisions of Article 25 read with Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 and is not discriminatory. In the significant, an elaborate and frequently quoted judgment of this Court in the case of I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041 the question regarding equality of citizens before the law, entitlement to equal protection of law, and the principles of the reasonable classification as enshrined in Article 25(1) of the Constitution were dilated upon and examined in depth, relevant portion whereof for convenience and reference is reproduced hereinbelow:- "Following are the principles with regard to equal protection of law and reasonableness of classification:-- (i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;??????? (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable, it should be based- (a) on an intelligible differentia which distinguishes persons for things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification." Principles as to classification are as under:-- (a) A law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. (b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of 'the constitutional principles. The person, therefore, who pleads that Article 25, has been violated, must make out that not only has he been treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are restored to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact; (c) it must be presumed that the Legislature understands and correctly appreciate the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds; (d) the Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest; (e) in order to sustain the presumptions of 'constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; (f) while good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation; (g) as classification need not be scientifically perfect or logically complete; (h) the validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking, all aspects into consideration." In the above quoted judgment of this Court, seized of a pension matter, while dealing with the question of reasonable classification with reference to Article 25 of the Constitution, has held that a reasonable classification will be that all the pensioners as a group are to be treated as one class and all civil servants as a group or to be treated as a separate class and if pay scales of serving civil servants are raised, the civil servants, who have by then already retired cannot have any legitimate grievance to agitate for notional revision of their pay scales for re-computing their pension amounts for any purpose and there cannot be any uniformity in the amounts of pension among the civil servants despite of having equal rank and equal length of service, if they retire not on one date but on different dates and in between such dates pay scales are revised. The pensioner can, however, has a legitimate grievance if he is not treated alike with other pensioners.

10. The case of the petitioners has also been considered and examined on the touchstone of the principles and the guidelines provided in the above referred judgment of this Court with reference to the provisions of Article 25 of the Constitution, which makes it quite clear that the petitioners being the members of the staff of Physical Education Section of the Educational Institutions of the Federal Government, Islamabad/Federal Area throughout since its inception was and has been treated a separate group, as a whole which never belonged or merged to the general-cadre of the school teachers apparently by dint of their nature of duties i.e. a separate class. The impugned notification exclusively related to the school teaches of the general cadre and has not created or made any classification within the category or group of staff members of the physical education/section of the PTIs and so on, similarly placed and situated to be treated alike. The rationality of the existence of the general cadre of school teachers has never been questioned or assailed till date at any stage and all that can be gathered in view of the agitation of the claim of the petitioners is that by virtue of the impugned notification they claim to have been deprived to further promotions; at the face of it is without any substance for the simple reason that they admittedly do not belong to the group of general cadre of school teachers since existence from its very inception for decades and the petitioners to a separate cadre of physical education though enjoying similar pay scales, grades and posted in the Federal' Government Educational Institutions, Islamabad/Federal Area, undisputedly is a separate class and; are not discharging exactly the same or similar nature of duties rather; directly are concerned with the physical education of the students, therefore, right from the very beginning they have been treated and belonged to a separate class of teachers of physical education and such classification, decades old right from its inception is also not unreasonable nor offends the provisions of the Article 25 of the Constitution.

11. The judgment of this Court passed in the case Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others 2005 PLC (CS) 1335 is not applicable to the facts of the instant case, as the petitioners are not performing exactly the same duties, as are being discharged by the staff members of the general cadre of the school teachers. The contention of the learned counsel for the petitioners, even if be considered that some of the PTIs at time were entrusted with the duties to take classes or deliver lectures to students on a subject in view of their higher educational qualifications would not per se entitle them to be treated as members of the school teachers belonging to general cadre nor for such reason PTIs can be treated as having been merged into general cadre of the school teachers.

12. It has further been contended by the learned D.A.-G. that without prejudice to his other contentions since the departmental appeals filed by the petitioners were barred by time, consequently; the service appeals filed before the learned Tribunal were. also hit by limitation and the grounds urged in their miscellaneous applications filed before the learned Tribunal for condonation of delay being not plausible and convincing had rightly been rejected and; this proposition is contested by the learned Advocate Supreme Court for the petitioners on the ground that there was sufficient reason to condone the delay in filing the service appeals beyond prescribed period of limitation. However; he remained unable to refute the main contention raised in such behalf that departmental appeals against the impugned notification were not filed within the prescribed period of limitation. Such a proposition has been dealt with by this Court in its judgment passed in the case of State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.) 1213, wherein it has been held that it was a well-settled legal proposition that a service appeal would be incompetent in case the appeal before the departmental authority is time-barred. In the instant case, undisputedly the departmental appeal was not filed by the petitioners within the prescribed period of limitation, consequently; the service appeal filed before the learned Tribunal would be incompetent and there would be no reason for condonation of such delay in filing the appeal filed beyond the period of limitation before the learned Tribunal on any ground. In our considered view, the learned Tribunal appropriately rejected the application for condonation of delay and dismissed the service appeals on the point of limitation, as well. It has further been rightly held by the learned Tribunal that it has no jurisdiction to order or to modify the impugned notification or to include teachers of the physical education cadre in the general cadre of the secondary and higher secondary school teachers. The jurisdiction of the Tribunal by virtue of subsection (1) of section 4 before the Service Service Tribunals Act, 1973 conferred the right of an appeal Nether Tribunal to a civil servant if he is aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of his terms and conditions of the service within thirty days communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later subject to sub-class (a), which provides a precondition for filing of a service appeal by providing that an aggrieved civil servant before approached the Service Tribunal should file an appeal, review or representation as may be provided for under the relevant Rules before the departmental authority and should wait for the expiry of 90 days from the date on which such appeal, review or representation was preferred, if the same is not decided before the expiry of above period, whereas; sub-clauses (b) and (c) provide the cases in which no appeal shall lie to the Service Tribunal namely (i) against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to higher post or grade and (iii) against an order or decision of a departmental authority made at any time before the 1st July, 1969.

13. The case of the petitioners squarely does not fall within the domain of the learned Tribunal within the purview of subsection (1) of section 4 of the Services Tribunals Act, 1973 for the reason that no final order, whether; original or appellate made by the departmental authority in respect of the terms and conditions of the service of the petitioners was passed and the impugned notification as hereinabove discussed exclusively relates to the re-organization and re-designation of the various posts of teachers of `general cadre' to which the petitioners admittedly do not belong nor their terms and conditions of service have any nexus with the notification in question. The observations recorded by the learned Tribunal in such behalf are based on correct application of law and are immune from attack on any ground qua the observations recorded by the learned Tribunal in para. 9 of the impugned judgment reproduced hereinbelow:-- "

9. For the 'aforementioned reasons the appeals fail and are dismissed being misconceived and barred by time. Having said that, we would observe that the respondent Directorate of Education and the Ministry of Education would do well to examine the case of teachers of Physical Education sympathetically, devise an equitable formula for their advancement and remove any heart burning in the interests of good governance."

14. In view of the above discussion and reasons, the petitioners have failed to raise any substantial question of law of public importance under the Article 212(3) of the Constitution, therefore, these civil petitions are dismissed and leave to appeal is refused. M.H./I-1/SC??????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.