1998 PLP 686 (SCMR)

AJMAL MIAN, C.J.

By this common judgment we intend to dispose of the above 23 Civil Appeals as they are directed against a common judgment, dated 5-1-1997 passed by the Federal Service Tribunal (hereinafter referred to as the Tribunal) in Appeals Nos.329(R) to 351(R) of 1996 filed by the present appellants for the following relief: "In view of above it is, therefore, respectfully prayed that the Selection Grade Posts (BPS-17) of the Teaching Staff be included for the purpose of inducing Four Tier Service Structure to remove the anomaly and the appellant may be given proper place in the set up w.e.f. the due date after summoning the record and the respondents. Any other relief which this learned Tribunal may deem expedient and proper be also granted. It is further prayed that all consequential benefits be also granted to the appellant". The above appeals were dismissed by the Tribunal under a common judgment the operative portion of which reads as follows:

"In pursuance of the Establishment Division u.o. the Ministry of Education gave the details which is not being confronted. The case is to be decided on the merits, if there was any ambiguity. It does not mean that ineligible persons could be upgraded and Mr. Hafiz S.A. Rehman, the learned counsel for the appellants has not been able to convince us whether the appellants who were TGTs could be designated as Headmasters/Headmistresses and thereafter, they could be eligible for promotion to B-18. In case we hold that all selection grade holders automatically become eligible for advancement to other cadres and promotion to next higher grade, this will be unjust and beyond our scope. For the foregoing reasons, we dismiss all these 23 appeals, with no order as to costs. "

2. The brief facts are that the appellants were working as Trained Graduate Teachers under the Federal Directorate of Education, Islamabad in BPS-15. They were granted selection grade B.P.S.-17 in 1983 in accordance with the procedure prescribed for the grant of above grade. It appears that the posts in BPS-17 were subsequently upgraded under a proposal of the Establishment Division. It seems that a summary, dated 11-2-1993 was placed before the Prime Minister of Pakistan for introducing 4-tier system and up-gradation (hereinafter referred to as the Scheme) of the ^posts relating to the Federal Government Educational Institutions mentioned therein. The above summary reads as follows: "Government of Pakistan Ministry of Education . Subject: Introduction of four-tier service Structure for Federal Government Schools Teachers of Islamabad. On the analogy of introduction of 4-tier (1:15:34:50) structure approved by N.W.F.P. and Punjab Governments, the question of providing better service prospects to Federal Government School Teachers was considered in consultation with the Finance and Establishment Divisions (Annexure 1 and Annexure 11), adoption of above four-tier system and up-gradation of the following posts in Federal Government Educational Institutions has been agreed to:-- (i) 3 posts from B-19 to B-20 under the designation of Principal. (ii) 45 posts from B-18 to B-19 under the designation of Headmaster. (iii) 101 posts from B-17 to B-18 under the designation of Deputy Headmaster. (i) 4 posts from B-19 to B-20 under the designation of Principal. (ii) 52 posts from B-18 to B-19 under the designation of Headmistress. . (iii) 119 posts from B-17 to B-18 under the designation of Deputy Headmistress. 2 Up-gradation of above posts will take effect from the date the posts are actually filled in by the eligible persons in the higher pay scale, subject to the approval of the Prime Minister.

3. The Minister for Education has already approved the proposal 4 Approval of the Prime Minister to the proposal cleared by Establishment/Finance Division as under para. l is solicited. (Sd.) (Mazharul Haq Siddiqui) Education Secretary Through Secretary, Establishment Division, Secretary to the Prime Minister, Prime Minister's Secretariat, Government of Pakistan Islamabad M/0 Education's U.0. No,F-a 33/90-CEI, dated 11-2-1992, The same was approved in March, 1992 by the Prime Minister, The relevant communication approving the summary reads as follows: "Subject: INTRODUCTION OF FOUR TIER SERVICE STRUCTURE FOR FEDERAL GOVERNMENT SCHOOLS TEACHERS OF ISLAMABAD. Reference Ministry of Education's summary for the Prime Minister bearing U.0, No.F.4-33/90-CEI, dated the 11th February, 1992 on the subject mentioned above.

2. The Prime Minister has been pleased to approve the four tier system/structure for the Federal Government schools teachers of Islamabad and the upgradation of the posts set out in para.10 of the summary under reference w,e.f. the date the upgraded posts are actually filled in by the eligible persons in the higher pay scales.

3. Ministry of Education is advised to upgrade the posts in the manner and style as contained in the Establishment Division's O,M, No.S/10/53 R.I, dated the 6th March 1953 (copy enclosed), (Sd,) (Shams Khalid) Deputy Secretary Ministry of Education (Mr Niaz Muhammad, S.O.) Islamabad. Estt. Div, u,o. No,8/43/91-R,1, dated I2-3-1992, 3, It may be noticed that under caption Male In sub-para, (iii) 101 posts are mentioned froth BPS-17 to BPS-15, whereas under caption Female in sub-para, (iii) 119 posts have been mentioned from BPS-17 to BPS-15, It is the ease of the appellants that the above figures of 101 for the Male and 119 for the Female Included the Trained Teachers which were granted selection grade BPS-17, However, it seems that the Cabinet Secretariat, Establishment Division by its Office Memorandum dated 21st September, 1993 revised the above figures and reduced BPS-17 posts from 101 to 42 for the Male and 37 from 119 for the Female, By this revision the Trained Teachers who were granted selection grade of BPS-17 were excluded which included the appellants. The appellants agitated the above matter in the department and then filed the above appeals before the Tribunal without success. Thereupon they filed in this Court petitions for leave to appeal which were granted to consider the question whether the impugned judgment of the Tribunal is contrary to the judgment of this Court in the case of Government of the Punjab v. Muhammad Awais Shahid (1991 SCMR 696).

4. In support of the above appeals Khawaja Muhammad Farooq, learned counsel for the appellants urged two points; firstly, that the Trained Teachers who were granted selection grade BPS-17 were included in the Scheme which was approved by the Prime Minister in March 1992 and their exclusion by the Cabinet Secretariat without referring back the matter to the Prime Minister was illegal; and secondly, that as late as on 26-7-1997 the 33% of BPS-17 (Selection Grade) belonging to the cadre of lady teachers in BPS-16 have been granted the benefit of the Scheme through Government of Pakistan, Finance Division (Regulation Wing) Office Memorandum No. F.1(23)Imp/96 dated 26-7-1997 and therefore, the appellants have been discriminated in violation of Article 25 of the Constitution of Pakistan. Mian Tariq Mehmood, learned Deputy Attorney-General has urged that the appellants had no vested right to claim that they should be included in the Scheme. However, he was unable to submit as to whether the exclusion of the Trained Teachers on the basis of the aforesaid Cabinet Secretariat Office Memorandum dated 21-9-1992 was after making reference back to the Prime Minister. As regards the alleged discrimination, his submission was that he had not received copy of the Finance Division (Regulations Wing) Office Memorandum dated 26-7-1997 and therefore was unable to make any statement in this regard, His further submission was that in any case, this Office Memorandum was not the subject-matter of the appeals before the Tribunal and that the appellants are introducing new plea at this stage.

5. It may be observed that in the case of Government of the Punjab v, Muhammad Awais Shahid (1991 SCMR 696) (supra) this Court has held as follows: " It is tilt admitted fact that the higher scale NPS-15 in the case of Civil Judges, and the higher settle NPS-20 In the case of District & Sessions Judges, is enjoyed by the same post holder of the respective category, In other words, there is no higher post to which their appointment tales place on such improvement in the status. Nevertheless, there to ate improvement in the Grade, as the Civil Judge from NPS-17 goes to NPS-15 and the District & Sessions Judge from NPS-19 to PS-20, On the strength of definition of the word 'promotion' as provided In the official documents, even this change of grade or scale of pay for the better would amount to promotion." The above view was reiterated In the case of Muhammad Aslant v. General Manager, Pakistan Railways, Lahore (1994 SCMR 1626) while declining leave against the judgment of the Service Tribunal which had taken the view in line with the former case, It appears that the Cabinet Secretariat had not taken into consideration the above aspect while issuing the aforesaid Office Memorandum dated 21-9-1992 and reducing the number of posts of BPS-17 for inclusion of the same in the Scheme. Secondly, there is nothing on the record to indicate that a back reference was made to the Prime Minister for re-approval of the revised Scheme. The above Office Memorandum of the Finance Division (Regulations Wing) dated 26-7-1997 indicates that 33 % posts of BPS-17 (selection grade) belonging to the cadre of lady teachers in BPS-16 have been granted the benefit of the Scheme. The above Memorandum reads as under:-- "No. F.1(23)Imp/96 Islamabad, the 26th July, 1997 Subject: INTRODUCTION OF FOUR-TIER PAY SCALES IN THE RRIMARY SET UP OF ISLAMABAD MODEL COLLEGES. The undersigned is directed to say that in compliance with the Finance Minister's d.o. letter No.212-FM/91, dated 17-1-1991, Four-Tier Service Structure is introduced in the Primary Set up of Islamabad Model Colleges as detailed below: (i) Four-Tier (1:15:34:50) service structure is introduced w.e.f. 1-6-1997 in the School teaching staff of Primary Set up of Islamabad Model Colleges in BPS-17 and above. (ii) The posts of lady teachers in BPS-16 shall be manned 67% in BPS-16 and 33% in BPS-17 (Selection Grade) w.e.f. 1-6-1997. Note: 33% posts of BPS-17 (Selection Grade) belonging to the cadre of lady teachers in BPS-16 shall be reckoned for the purpose of calculation under the above Four-Tier (1:15:34:50) Service Structure. "

6. We are, therefore, of the view that it will be just and proper to refer the matter back to the respondents with the direction that the appellants' case may be re-examined. If the reduction of the above posts for inclusion in the Scheme has been made without making any back reference to the Prime Minister, the matter may be placed for re-examination before the Prime Minister in which it may also be pointed out that recent 33 % posts of BPS-17 (Selection Grade) belonging to the cadre of lady teachers in BPS-16 relating to Islamabad Model Colleges have been included in the Scheme under the above Office Memorandum. It may also be examined, as to whether the appellants are placed in the same position as the Trained Teachers working in Islamabad Model Colleges. The appeals are disposed of in the above terms, with no order as to costs A.A./I-10/S Case remanded