1980 PLP (C (PLC(CS))

In so far as the rules published on 26th September, 1974 had the effect of denying the aforesaid status to the appellants the same were clearly retrospective in operation. The law is well settled that the rules could not operate retrospectively. The learned counsel in this regard cited: (1) P L D 1958 Lah. 180 (2) P L D 1977 Lah. 549 (3) P L D 1961 S C 605 (4) P L D 1975 S C 106 (iv) That the Rules of 1974 were ultra vires the Article 241 of the Constitution. According to the learned counsel under Article 240 the terms and conditions of service of Provincial servants had to be regulated by law made by Provincial Assembly and the rules have to be framed under the Act of the Provincial Assembly and till such time the existing rules were to continue in terms of Article 241 of the Constitution. The contention of the learned counsel was that the 1974 Rules having been issued under para. 13 of M. L. R. 118 could not be treated to have been framed by or under the Act of the Provincial Assembly. (v) That the case of respondents consistently had been that the Regulation as such did not nationalise the services of the appel lants nor the M. L. R. 118 in any way related to the status of the appellants. Thus para. 13 which authorised the Provincial Government to frame rules for carrying out the purpose of this Regulation could not conceivably authorise the framing of rules affecting the status of the appellants. (vi) The learned counsel contended that even the instruction/notifi cation dated 15th May, 1974 issued by the D. P. I. Punjab was not supported by any law. With the above contentions the learned counsel pressed for accept ance of the appeals.

12. Ch. Hamiduddin, Advocate, appearing for teachers submitted that M. L. R. 118 which endeavoured to implement the Education policy was published on Ist April, 1972 and the notification for nationalization of schools was published on 30th September, 1972 and the notification nationalizing the services of the appellants was issued on 24th October, 1972. On 22nd May, 1974 the D. P. I. issued orders categorising the appellants Headmasters/Headmistresses as S. E. T. and eventually the Punjab Nationalization of Schools (Teaching Posts) Rules, 1974 were noti fied on 26th September, 1974 which had the similar effect. Writ petition was filed on 18th February 1975 which was rejected on 21st July, 1975 and the I. C. A. was also rejected on 14th October, 1976 as incompetent. Present appeal was filed on 11th November, 1976. The department on 5th August, 1976 had provisionally allowed N. P. S. 17 to the appellants. In this appeal they assailed the vires of Rules dated 26th September, 1974 and the orders dated 6th August, 1976 allowing N. P. S. 17 provisionally to the appellants. The appellants particularly questioned the vires of rule 4 of the 1974 Teaching Rules which was as under :‑ "4.‑(1) Any person who is in the service of a nationalized school on or before the 4th of March, 1972 and continued in such service till 31st August, 1972, was below the age of 58 years on the later date and is a citizen of Pakistan possessing the qualifications and other conditions of eligibility prescribed by Government for the teachers of the schools maintained by it, shall be deemed to have been appointed, to the post, other than the post of Head master or Headmistress of a High School, which he was holding at the time of the nationalization of the schools: Provided that a person holding the post of Headmaster or Head mistress of a High School at the time of nationalization of the school, and possessing the qualification prescribed for the post of Senior English Teacher shall be deemed to have been appointed as Senior English Teacher and the posts of Headmasters or Head mistresses shall be filled in accordance with these Rules. (2) Total number of posts of Headmasters or Headmistresses of High Schools as terminated immediately before coming into force of those rules shall be filled by selection from among the persons holding posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce), and Headmasters of Middle Schools under these Rules and thereafter 85 percent. vacancies occurring in such posts, shall be filled by selection from among the persons holding the posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) and Headmasters of Middle Schools under these Rules with not less than 8 years service as such and the remaining 15 percent. of such vacant posts shall stand abolished from the cadre and stand transferred to the appropriate cadre of the teachers of the Schools maintained by Government. (3) Total vacancies in the posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Com merce) and Headmasters of Middle Schools, existing immediately before coming into force of these rules shall be filled by promotion from among the persons who possess the qualifications prescribed for the post of Senior English Teacher but are holding lower posts under these rules and thereafter 50 percent. of the vacancies occurring in such posts shall be filled by promotion from among the persons referred to above and the remaining 50 percent. of such vacant posts shall stand abolished from the cadre and stand transferred to the appropriate cadre of the teachers of the School maintained by the Government. (4) The posts of S. V. Ts.: C. T s., and J. V. C s., falling vacant in a cadre stand abolished from the cadre and transferred to the appropriate cadre of teachers of the Schools maintained by the Government." According to the learned counsel the aforesaid Rules are ultra vires of M. L. R. 118 which guaranteed pay and status to the appellants and Article 268 of the Constitution which guaranteed the right to continue service in the same terms and conditions. He argued that the enblock appointment of the appellants as S. E. Ts., was wholly unauthorised and unwarranted. He also reiterated the arguments advanced by Mr. Shahzad Jehangir that the Rules framed under para. 13 of the M. L. R. 118 travel beyond the scope of the Regulation. The appellants submitted that in September, 1974 the terms and conditions of the appellants were to be governed by the Civil Servants Act, 1974 or the Rules framed thereunder which had come into force long ago. The learned counsel went on to contend that the nationalization in its scope also included the nationaliza tion of staff and students. He relied upon the definition of School as appeared at page 1478 of the Corpus Juris: "The word `School' is a generic term of many definitions, denoting an institution or place for instructions or education the collective body of instructors and pupils in any such place or institution. The number of persons being taught does not deter mine whether the place is a School." The learned counsel relying upon the above definition submitted that the School included the staff and the students. He submitted that Schools are nationalized vide notification dated 30th September, 1972 (effective from 1st October, 1972), services of the appellants were nation alized vide Notification dated 24th October, 1972 and service books were directed to be prepared on 22nd March, 1973 and services of about 578 Headmasters were nationalized vide Notification dated 26th February, 1974. Thus the appellants were entitled to continue in service as Head masters without any interference. He heavily relied upon para. 7 read with para. 5 of M. L. R 118 to elicit the guarantees to continue in service on the same terms and conditions i.e., in the capacity of Headmasters. He also brought to our notice that M. L. R. 118 contained express pro visions to prohibit the Management of private Schools to effect any change in the terms and conditions of service of any employee who was in service before 15th March, 1972. He also raised objection as to the retrospective operation of the 1974 Rules. He argued that the Rules were ultra vires of the Constitution and section 15 of the Punjab Civil Servants Act according to which the civil servants were liable to such disciplinary action and penalties and in accordance with such procedure as may be prescribed. According to the appellant the impugned rules having not been framed under the Civil Servants Act, the rules framed under para. 13 of the M. L. R., 118 were clearly ultra vires. Mr. Wasim Sajjad, Advocate, who appeared in Appeals Nos. 178, 179 and 180 also stressed that the departmental authority had no power to fix seniority afresh of the teachers of the nationalized institution, the status and pay of whom was guaranteed by M. L. R.

118. According to him, there was no power with the authorities to appoint the appellants as S. E. T's. He also submitted that para. 13 of M. L. R. 118 did not autho rise the framing of rules regarding appellants' status. He contended that M. L. R. 118 could not be treated as an Act of the Provincial Assembly in terms of Article 240 of the Constitution and thus there was no authority for framing any rules in pursuance to M. L. R. 118 after enforcement of the Constitution. According to him after the promulgation of the Constitution it was only by or under an Act of the Provincial Assembly which could validly provide for the frame of Rules. He referred to Article 260 of the Constitution which defined the Provincial Law to mean "law made by or under the authority of the Provincial Assembly". It was argued that M. L. R. 118 at the best could be treated as an existing law under Article 268 of the Constitution. He placed reliance on P L D 1964 S C 673 in this regard. Mr. A. K. Dogar, Advocate, appearing in Appeals Nos. 386, 342 and 260 appearing for unqualified Headmasters, assailed the provisions of rule 4 of the Teaching Rules, 1974 and Memo. No. 1/7‑75/24537/HS‑1, dated 20th November, 1976 issued by the D. P. I. Punjab which purported to appoint the appellants as S. E. T's. He contended that the appellants have been working as Headmasters since long and the requirement as to the qualifications could not be prescribed with retrospective effect. He relied upon P L D 1965 Lah. 147 in support of his contention above. He submitted that the qualifications were necessary for initial entry into service and not for promotion. Mr. Abid Hassan Minto appearing in Appeal No. 157 did not add anything to the contentions already raised by other appellants before us. He rather adopted the same. Mr. Muhammad Yasin and Mr. Saadullah, Advocates, appearing in Appeals Nos. 170 and 344 submitted written arguments containing pleas which were covered the arguments already advanced by other counsel. Dr. Farooq A. Hasan appearing for some of the respondents, in the first instance raised the plea that there was nothing in para. 7(2) which guaranteed the status or pay to the staff of the nationalized institutions. Services of the staff were not at all nationalized under M. L. R. 118 and para. 7 has no application to their case. He pointed out that para. 7 applied only to those Schools which had not been nationalized and were still allowed to function under private management. He invited our attention to para, 12 of the Regulation which empowered the Govern ment to make exceptions in favour of schools. He submitted that it was undisputable that some of the schools were still running under the private Management. Thus the condition in para. 7(2) with regard to payment of salary to the teachers employed in such schools comparable to the teachers of equal experience, qualifications and seniority with those employed in Government Schools was meant for such schools. He sub mitted that the expression `such' used in para. 5 of M. L. R. 118 clearly implied the existence of the schools under the private Management even after the promulgation of M. L. R.

118. He endeavoured to reinforce his contention by making reference to an amendment in para. 7 of M. L. R. No. 118 vide Punjab Ordinance No. V of 1976 which made the amendment to the following effect :‑ "Provided that, with the general or special permission of the Provincial Government, any person may be promoted, employ ed or engaged on such terms and conditions as may be approved by the Provincial Government, against a newly created post or a vacancy caused by the retirement, or expiry of the stipulated period of employment, or termination of services in accordance with the terms and conditions of employment, of a person who was employed or engaged before the fifteenth day of March, 1972." He also referred to the definition of College/School as contained in para. 2 of the Regulation which did not indicate that the school included the staff. In the alternate he argued that even if para. 7(2) was applicable, to the taken-over schools, it only guaranteed equal scale of pay to the teacher as were availed by teachers employed in Government schools within similar qualifications, seniority and experience. He seriously disputed the conclusions arrived at in P L D 1977 Lah. 549 and submitted that contrary view expressed by his Lordship Mr. Justice Shafiur Rehman in W. P. No. 541‑S 73 in Hasan Ara Bokhari's case as decided in November, 1973 was correct. He also relied upon the decision of the Division Bench of the High Court in I. C. A. No. 129/73 decided on 25th November, 1974. The following observations from the aforesaid judgments were implicitly relied upon: "What has therefore been protected in express terms is comparable remuneration of the teachers. They would, therefore, claim as of right under law continuation of their service under same conditions of service. The law does not guarantee them the post as such but only the remuneration according to specified scale." (By Mr. Justice Shafi‑ur‑Rehman). And from the Division Bench decision: "So it is school itself and such property as is attached to the school and it does not per se catapulate employees of school into Government service in the capacity in which they were serving. At least there are no gurantees held out." He also submitted that the rules were clearly intra wires. He further sub mitted that even if the rules were held to be ultra vires still under the rules of equity and good policy, the appellants were not entitled to con tinue as Headmasters. He contended that there is no warrant for the proposition that there was intention to validate the appointments of un qualified and unsuitable persons. It was certainly not in keeping with the education policy. He went on to argue that appointments of the appellants in any case have to be regulated by West Pakistan Education Service Rules 1963 which require minimum service of 8 years as set to be eligible to the appointment of Headmaster. Thus unqualified persons were not entitled to continue as Headmaster. He also pointed out that on 4th April, 1977 appellants were allowed N. P. S. 17 provisionally which contained Condition No. 3 that they were liable to reversion as S. E. T. without notice which condition corresponds to the similar condition in the notification dated 24th October, 1972 and thus the appellants were estopp ed to raise this objection at such a belated stage. With these submissions the learned counsel pressed for the rejection of the appeals. Ch. Muhammad Arif, Advocate, appearing for some of the respon dents invited our attention to the definition clause of M. L. R. 118 which defined the school. He stated that there was nothing in para. 5 or para. 7 of M. L. R. 118 about the staff. According to him the omission was deli berate and could not be supplied by the Court. He argued that the appel lants were asking this Court to read something in paras. 5 and 7 of M.L.R. 118 which was not there. He submitted that the rules were intra wires as something had to be done to carry out the purpose of the M. L. R. Mian Hidayat Ali Talib, Advocate, argued that the finding of the High Court in Fazal Elahi Ejaz's case was obiter and should be ignored. According to him, once the Division Bench has come to the conclusion that this case was triable by the Service Tribunal, the condition to reject the appeal was irresistible and the decision was complete. Thus the rest of the findings were surplusage and merits to be ignored. He cited P L D 1974 S C 124, PLD 1973 S C 230 and P L D 1952 Lah. 31 in support of his contention above. Lastly, Mr. A. G. Hamayun, Government pleader pointed out that the cases of Headmaster could be divided into six categories :‑‑ (a) Headmasters who were qualified and appointed before 14th March, 1972 and awarded N. P. S. 17 with effect from 1st October, 1972 (9 appeals). (b) Headmasters who were qualified and appointed before 14th March, 1972 but were not in receipt of pay in N. P. S. 17. (200 appeals). (c) Headmasters/Headmistresses who were qualified and appointed as such w. e. f. 1st October, 1972 and awarded N. P. S. 17 with effect from the same date (4 appeals). (d) Headmasters/Headmistresses who were qualified and appointed on or after Ist October, 1972, as incharge of the institutions due to occurrence of sudden vacancies (4 appeals). (e) Headmasters/Headmistresses who were not qualified but were appointed as such before 14th March, 1972 or on after 1st October, 1972 in their own pay scale (5 appeals). (f) Headmasters/Headmistresses of middle school who were not qualified as S. E. Ts. (4 appeals). He submitted that the last four categories were mostly the appointees as Headmasters after nationalisation, therefore, there was no question of any protection to them by M. L. R.

118. Even in the few cases the appointment though dated pre 14th March, 1970 but they were admittedly unqualified hands and as such were not entitled to any protection as they lacked the prescribed qualifications. He submitted that on the terms and conditions of their appointment they were not entitled to continue and they could not have any grievance if they were appointed as S. E. Ts. With regard to the first two categories be adopted the arguments advanced by other counsel. In addition he submitted that they were merely contractual employees and were not civil servants till Ist October, 1972 as they acquired the status of civil servants for the first time after nationalisation. Therefore, their grievances prior to 1st October, 1972 were not justiciable. With these submissions the learned Government Pleader prays for dismissal of the appeal. After hearing the parties and also going through the relevant records we are of the opinion that the Punjab Nationalised Schools (Men and Women Sections) Teaching Post Rules, 1974 framed by the Government of Punjab and notified on 26th September, 1974 under paragraph (13) of the M. L. R. 118 are ultra wires. Para. 13 of M. L. R. 118 provides as follows :‑ "The appropriate Government may; by notification in the official Gazette, make such rules as appear to it necessary or expedient for carrying out the purposes of this Regulation. Explanation.‑In this paragraph, "Appropriate Government" means‑ (a) in relation to the Islamabad Capital Territory, the Central Government ; and (b) in relation to a Province, the Provincial Government." Evidently paragraph 13 allowed the rules to be framed only to carry out the purposes of M. L. R. 118 itself. During the course of argu ments before us the contesting respondents and the Department have unanimously and vehemently contended that there is nothing, in M. L. R. 118 except the scale of pay which could possibly relate or cover the case as to the status or the staff employed in the taken over institutions. It was rather represented before us that even para. 7 of the M. L. R. 118 pertained to the cases of staff employed in the privately managed schools which had not yet been taken over. In this context we asked the respondents to apprise us of any previsions in the M. L. R. 118 embodying the purposes (other than scale of pay) which purportedly were carried out by framing the Rules on 26th September, 1974 qua the status of the appellants. The learned counsel appearing for the respondents have not been able to point out any provisions in M. L. R. which could possibly cover this aspect of the case or authorise the frame of the Rules in question. Since the power of the Government to frame the Rules was restricted to carry out the purposes of M. L. R. and since none of the provisions contained under M.L.R. 118 concerned the status of the emplo yees of the taken over institutions, therefore, the impugned Rules, in so far as they purported to determine and fix the status of the appellants before us, were ultra vises of M.L.R.

118. At the best the Rules as framed and notified on 26th September, 1974 could relate to fixing the scales of pay in terms of para 7 (2) of the M. L. R.

118. Even the decision in Writ Petition No. 441‑A of 1977 in Hasan Ara Bukhari's case also laid down that the M. L. R. only concerned the employees of the taken over institutions to the extent of their pay. We respectfully follow the same. As regards the contention of the respondents that para. 7 (2) applied only to the persons working in the privately managed schools, not yet taken over, the same is not acceptable. The plain reading of para. 7 shows that the provisions contained therein apply to schools and colleges alike. Vide para. 4, all the colleges in the Province without any exception stood nationalized. As such there was no need to make any provision in respect of "colleges" in para. 7 (2) in respect of privately managed colleges as there was none. Thus the intention appeared to the contrary that it also applied to schools and colleges which were in private Management before 1st October, 1972 or 1st November, 1972 respectively. We are also in agreement with the reasoning and the decision of the Division Bench reported as P L D 1977 Lah. 549 that the rules framed under M.L.R. could not be deemed to have been framed under section 23 of the Punjab Civil Servants Act, 1974. The following observations appearing in para. 24 of the aforesaid judgment may be reproduced with advantage :‑ "

24. There is no legal justification for holding that a rule under one statute can be validated as a rule under another enact ment. A rule‑making power in an enactment is given for the purposes of carrying out the purposes of that particular statute. The authority to make rules is delegated by the parliament or the Provincial Assembly to particular authori ties. In each case, the rule‑making powers are considered to be subordinate legislation as they are subordinate to the enactment under which they have been framed. If the rule framed under one enactment, is considered by the Court to be a rule under another enactment, which was never in contemp lation of the rule‑making authority, though the same authority may have the power of rule‑making under both enactments, the Courts will be considered to be substituting themselves for the rule‑making authority under that enactment. This is certainly not the object of law. The question whether a rule has been made within the powers granted by a particular enactment or is within the four corners of that enactment, can be considered only with reference to that particular statute. If the rule‑making authority under different statutes feels inclined to frame the same rule under that statute, it must be left open to that authority to frame such rule and not to force a rule framed under another enactment upon such authority." We respectfully follow the conclusion and the reasoning indicated above. It may be observed that none of decisions of Lahore High Court cited before us stand in the way of the conclusions as to the vises of Rules. In Writ Petition No. 441‑S/73 (decided by Mr. Justice Shafi‑ur‑Rehman) and L. P. A. No. 129/1973 in Hussan Ara Bukhari's case the High Court held that M. L. R. 118 did not nationalise the services of the staff nor it provided for any protection of status. Even on the reasoning employed and the conclusion arrived at in P L D 1977 Lah. 549 the status of the teachers was protected and para. 13 could not authorise the framing of Rules adversely affecting the status of appellants. Thus in either case the Rules had to be held as ultra vises. In the result the appeals filed by College Teachers and the Headmasters who were qualified and too appointed as such on or before 14‑3‑1972 are hereby accepted and the Government is directed to frame the Rules afresh in accordance with the law. It is needless to observe that fresh Rules will be framed without any further loss of time in order to conclude the controversy which is quite old. However, in case of Headmasters falling in categories (c) to (f) (page 21 of this judgment) i.e. unqualified, though appointed before 14th March, 1972, or thereafter, on ad hoc basis or as stop gap arrange ments and others who being senior most were just put m charge as Headmasters/Headmistresses or were posted to work in their own pay and scale on/after 1‑10‑72, the learned Government pleader contented that they could not be treated as Headmasters/Headmistresses till the time of the nationalistion and their appointments were either ad hoc or purely temporary, liable to be terminated at the will of the Government. The case of such teachers is clearly distinguishable and they could not possibly claim any protection under paragraph 7 of the M.L. R.

118. They hold appointments on the terms sanctioned by the authorities concerned. In any event the protection envisaged vide para 7 of M. L. R. 118 was conditioned by comparable qualifications, experience and seniority. Even if no rules were framed, the persons who lacked requisite qualifi cation prescribed for Headmasters or S. E. Ts. working in Government schools could not be considered to have any right to continue as Headmasters/Headmistresses not they could have any valid grievance if they were appointed as SETs in accordance with the terms of service specified in various Notifications issued from time to time by the authori ties concerned. Their Appeals Nos. 145/185, 178/191, 179/194, 180/195, 170/197, 358, 369, 332/256,273,329/255, 348/260, 386, 366, 41/196, 343/259 and 344 all of 1978 and No. 7 of 1979 thus have no force and are hereby dismissed. However, there will be no orders as to costs. Before concluding this judgment we may observe that in view of our conclusion above the rest of the contentions raised by the respective parties did not call for any adjudication by us. Appeals dismissed.