1976 PLP [C (PLC(CS))

MUHAMMAD DAUD KHAN (CHAIRMAN).‑ Arguments heard in detail. The appellant joined as a Junior Vernacular Teacher in the Central Govern ment Boys School on 17‑9‑1960. On provincialization of some of the schools he was transferred to the Government of West Pakistan in 1963. On 1‑6‑1966 he opted to serve under the Central Government on the terms and conditions mentioned in the Ministry of Education's letter No. F. 3‑12/65. School, dated 11‑5‑1966 at the time the schools were taken over from the Provincial Government. The post held was that of Physical Training Instruc tor. The petitioner possessed a University Degree with Diploma in Physical Education. The appellant claims that under the Provincial Government of West Pakistan, B. Ed. Teachers and Physical Training Instructors with senior Diploma in Physical Education were grouped in the same cadre and for the purpose of promotion etc. a common seniority roster was maintained. It is contended that in the provisional seniority list circulated by the Ministry of Education, on the basis of the particulars made available to them by the Provincial Government's Department of Education, the petitioner's name appeared among the trained Graduates cadre and that later on in 1968, it was shown separately. It is further contended the recruitment rules of the Central Government for the relevant categories published in April. 1972 about 4 years later, cannot be applied with retrospective effect in the case of the appellant in view of the Supreme Court judgment in C. A. No. 27 of 1964. The petitioner was promoted to the selection grade with effect from 1‑6‑70, as a "Trained Graduate Teacher". He, however, obtained the Degree of B. Ed. in May, 1973. It has, therefore, been prayed that the seniority be kept intact. Against the arguments put forward by the learned counsel for the appellant, it has been urged by the learned counsels for the respondents that the appellant being a P. T. I., a Graduate Diploma in Physical Education could not be brac ketted with B. Ed. Teacher. He was assigned seniority in the cadre of Physical. Training Instructors. A distinction has been drawn in regard to the nature of duties and qualifications required for each category of posts. A combined seniority is not contemplated‑what is intended is identical grade‑and promotion in the specific field and that in case the appellant was interested in the cadre of trained Graduate Teachers, then subject to eligibility he could be considered for recruitment to such cadre etc. It has further been asserted that no term and condition has been altered to the disadvantage of the appellant. If anything, he has benefited. On the basis of the arguments put forward by the parties, it is necessary to examine the position vis‑a‑vis the Rules governing seniority etc. and the orders relating to other terms and conditions such as emoluments. The question of seniority vis‑a‑vis respondents 3 to 8 has evidently arisen as a result of the taking over some of the schools from the Provincial Government in 1966. It would therefore be relevant to refer to the West Pakistan Education Department Subordinate Regional Service (Administrative Branch) (Men's Section) Rules 1962. The rules "come into force at once" i.e. on the date of notification viz. 11th October, 1962 and were, therefore, appli cable in the instant case. Rules 3 (1) relates to constitution and composition of the service. Rules 3 (2) provides that the service shall consist of regional cadres members of one cadre not being eligible save as provided in rule 11 for appointment to a post borne on any other cadre of the service, hereby implying that there were more cadres than one, in the service. Rule 8 (1) relates to qualifications and provides "No person shall be appointed to a post in the service, unless he possesses the qualifications pre scribed for the post in column 3 of the Appendix," It would be seen that the Appendix has reference to rules 3 (1) and 8 (1) The nomenclature of the posts is given in column 2 and the minimum qualifications laid down for appointment by initial recruitment are indicated in column

3. Item I, relates to Senior English Teachers whereas Physical Training Instructors are shown at Serial No.

5. The qualifications for a Senior English Teacher are a Degree of B. A/B. So with B. Ed. from a recognized University or an equivalent or higher qualifications e.g. M. A. in Education, the qualification for a Physical Training Instructor is Matric with a diploma in Physical Education. The two categories, though in subordinate service, have separate qualifications, and are, therefore, distinguishable. It is, therefore inconceivable that there could be a `common' seniority of the two categories. Common seniority or combined seniority would not make a person eligible for promotion to a higher post, unless the Rules of Retirement or the Service Rules so provide. No such Rule, of the Provincial Government have been produced, although asked fur. The rule relating to seniority (rule 10) has reference to various grades'. This clearly implies that there would be separate seniority in each grade in the first instant and then seniority inter se among the members of various grades in the subordinate service. No such list has been produced. Other terms and conditions such as the pay scales etc., would be governed by Pay Revision and other relevant rules. No violation of terms and conditions relating to pay etc., in the post held, has been alleged. As regards seniority in the subordinate service, it has not been established that the appellant on the basis of the Rules cited was senior prior to transfer or could be declared senior even after transfer to the Federal Government. The Central Government's Rules regulating recruitment to Class III posts were published under Notification S. R. U. 1534 (K)/68, dated 31‑8‑

68. Annexure to the Rules provides for separate qualifications for the two categories (1) (1) Trained Graduate Teachers. (ii) (4) Physical Training Instructor (Trained Graduate) B. A/B. Se. B. or Equivalent qualifications. Graduate with Senior Diploma in Physical Education or equivalent qualifi cations. A scrutiny of the Nest Pakistan Government's Rules, 1962 and the Central Government Rules, 1968 would indicate that the minimum educational qualification prescribed for Physical Training Instructor is Matric under the West Pakistan Rules whereas under tae Central Government Rules, it is graduation. It is further to be noted that the two designations differ from each other under the two sets of rules. The Senior English Teacher, under the West Pakistan Government Rules, 1962 is the Trained Graduate Teacher" under the Central Government Rules, 1968. The Physical Training Instructor under the 1968 Rules with the following words in brackets "Trained Graduate." The word 'Teacher' does not exist, in this case and the omission makes all the difference. In the case of the petitioner, however the Rules of 1968 have not been made applicable. The question of the Rules having been given retrospective e86ot does not arise. The learned counsel for the appellant, however, made a reference to the Rules of 1972 (although he did not produce a copy thereof) not knowing that Rules existed in 1968 already. In any case neither the Rules of 1968 (Subordinate Service Class III) nor the Rules of 1972 (Non‑Gazetted Class II), affect the petitioner adversely. Accordingly we hold that none of the terms and conditions of the petitioner have been affected adversely and that his seniority in the grade of Physical Training Instructor on the basis of the Rules applicable both in West Pakistan and under the Central Government remains unaffected. The claim to common seniority is untenble. Ordered accordingly Parties to be informed.