M. SALEEM CHAUDHRY (CHAIRMAN).-Appellant in this case was originally an employee of a privately managed college, named K. A. Islamia Inter College, Jamia Muhammadi Sharif, where he started his service as a Junior Clerk on 29th May 1968 at a starting salary of Rs.
75. The said institute was nationalised under M. L. R. 118 vide Notification No. SO (NC) 6-3/73, dated 4th September 1972, wherein appellant was shown to be appointed as Senior Clerk. The appointment shown in the notification was admittedly as a stop-gap arrangement subject to verifi--cation of eligibility with regard to age, qualifications etc. The Director Education, Rawalpindi Region consequently by an order of 25th September, 1972 issued appointment orders of the appellant and some other officials in the said institute showing the appellant as Senior Clerk with the observation that all the appointments shown in that order were on Pro--visional and purely temporary basis until further orders and subject to the constitutional provisions regarding age of superannuation, citizenship and such rules as may be framed in regard to the service conditions of the aforesaid staff by Government. By a later notification dated 12 April, 1975, which is assailed before us in the present appeal, the appellant was shown as Jr. Clerk and consequently his pay was fixed in N. P. S. 5 at Rs.
168 with effect from 1st September, 1972. The appellant claims that during the course of his service in the private Institute, he had been pro--moted as Sr. Clerk with effect from 1st December 1971 and was allowed starting pay of the Sr. Clerk in the scale of 135-7-170 EB/10-220-FB/15-315. The appellant contends that on the crucial date i.e. 15th March, 1972 he was holding the rank of Sr. Clerk and he had a right to the grade of Sr. Clerk on nationalization. In support of his contention of promotion as Sr. Clerk, he has produced before us a photostat copy of his apple--cation addressed to the Chairman, Governing Body, K. A. Islamia Inter College through the Principal,th requesting for promotion to the grade of. Sr. Clerk with two increments on the ground of his satisfactory service for four years and the general rise in the price index. This application was favourably endorsed by the Principal recommending the, grant of starting pay of Sr. Clerk i.e. Rs. 135 with effect from 1st December, 1971 to which the Chairman, Governing Body appended his approval.
We also find that this position is reflected in the acquittance roll register produced by the respondents wherein the pay of the appellant has been shown to be Rs. 75 with effect from the date of joining service (i.e. 29th May, 1968), Rs. 105 with effect from 5th March, 1963 and Rs. 135 with effect from 1st December, 1971. The appellant also fortifies his arguments by relying upon the staff statement submitted by the Principal to the Government for the purpose of nationalization of the institution under M. L. R. 118 and showing the position of the staff as it stood on 3rd December 1971 in which the status of the appellant was admittedly shown as Sr. Clerk. The appellant also relies upon the statement submitted by the Principal to the Government showing particulars of the non- teaching staff as it stood on 15th March, 1972 in which status of the appellant was again shown as Sr. Clerk. On the basis of the aforesaid arguments it is urged that the claim of the appellant is not an afterthought but right from the beginning he was being considered and shown in the relevant records as Senior Clerk. It is submitted that the Pay Verification Committee constituted by the department, on whose recommendation the status of the appellant was reduced from Senior Clerk to Junior Clerk, made an arbit--rary decision and had no evidence before them to counter the evidence produced by the appellant before them. With these submissions the appellant presses for his claim of being nationalised in the rank of Senior Clerk and acceptance of his appeal.
2. The learned Government Pleader however mainly relies upon the fact that the acquittance rolls throughout show his designation as a clerk and there is no change in the name either on 1st December or thereafter. The entries made with respect to the appellant in the staff statements of December, 1971 and arch, 1972 are disbelieved on the ground that at the relevant time nationalisation was in view and. Consequently the status of the appellant was inflated to get an undue advantage. It is further argued that although the pay of the appellant was raised to Rs. 135 but there is no order to show that he was promoted as Senior Clerk and there is also no corresponding resolution of the Governing Body recorded in the relevant register. On the legal side it is contended by the learned Government Pleader that the jurisdiction of this Tribunal is barred under proviso (b) to section 4 of the Punjab Service Tribunals Act whereby the Tribunal cannot look into an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. With these submissions it is pressed that the appeal may be dismissed being incompe--tent and also having no merit.
3. We have heard the parties at length. As regards the question of jurisdiction, it may be observed that the question for determination is not one of fitness of the appellant to hold a post but that what post he was holding at the time of nationalisation. The argument of the learned Government Pleader is thus totally misdirected and in our opinion issue does not come within the mischief of proviso (b) to section 4 and there is no bar to the jurisdiction of this Tribunal to look into the issues involved in this case and is accordingly repelled.
4. The appellant was an employee of a privately managed institution and there is no denying the fact that in such institutions the administrative matters are not dealt with in accordance with the rules and the regulations that are prescribed for and adhered to in the Government service and thus proceedings cannot be strictly construed to conform to the same. In common parlance a clerk is a clerk whether he is of junior or senior category. Thus it is not justified to reject a claim merely on the ground that he has not been particularly shown as Senior Clerk in the acquittance rolls. The argument is self-defeating on the ground that the appellant has also not been shown as `junior' clerk when he was admittedly appointed in that capacity. We are, therefore, not impressed by this argument, and I in the absence of any conclusive evidence in the acquittance rolls, we are entitled to look for evidence aliunde which is a recognised rule of construction PLD 1966 SC 725. As stated earlier, the appellant has produced before us a photo copy of the original application addressed by him to the Chairman, Governing Body of K. A. Islamia Inter College through the Principal in which a request for promotion to the grade of Senior Clerk with two increments has been made on the ground of his satisfactory service of four years, Endorsement of the Principal favourably recommending his case to the Chairman, Governing Body also appears on the same application and the approval of the Chairman with his signature over the rubber stamp are also recorded thereon. Respondents have not been able to rebut this argument. It was first argued that there is no record of such a decision in the Register in which resolutions of the Governing Body are recorded. The respondents were asked to produce before us the said register, for which they were given sufficient time, but the same was not produced and it was thus apparent that no such register appeared to have been maintained by the Governing Body. No other evidence was produced in support of the contention that the aforesaid document was the result of forgery or otherwise was not genuine. We, therefore, find no ground to brush aside this piece of evidence in favour of the appellant. Similarly, the bald statement that the two staff statements submitted by the Principal tender to inflate the status of the appellant in view of the impending nationalisation and the benefits likely to accrue to him thereby, cannot be accepted in the absence of any evidence in support of this contention. This argument per se would be applicable to all the staff shown in the staff statements and no distinction could be made in the case of the appellant only.
We had given them to the respondents to produce any additional evidence to assail the genuineness of the staff statements submitted by the Principal, but nothing has been produced before us. The fact that these statements were prepared by the appellant himself as the dealing band is not material as the statements were admittedly signed and certified to be correct by the Principal. In both she aforesaid statements the appellant rise been shown as Senior Clerk in the relevant grade of 135-7-170-EB/10-220-EB/15---315. In the light of the above finding the issue of genuineness or otherwise of the entries in the service book (which was claimed to have been main--tained by the private body in their own way) does not remain relevant.
5. The upshot of the above discussion is that the appeal succeeds and we set aside the impugned order in so far as it affects the appellant, with the result that the appellant's service will be deemed to have been nationalised in the rank of a Senior Clerk, entitling him to all the benefits flowing therefrom. The parties are left to bear their own costs.