1. MUHAMMAD AKRAM, J.-This is a leave petition from the .Judgment of a Division Bench of the Lahore High Court, Lahore, dated 14th October, 1976, dismissing the Inter--Court Appeal filed by the petitioners herein against the respondents.
2. Briefly the relevant facts are these. On the 15th of March, 1972 the Government of Pakistan announced its Educational Policy outlining a scheme for the nationalisation of the privately managed colleges and schools in the country. It was followed by the Privately Managed Schools and Colleges (Taking Over) Regulations, 1972 (Martial Law Regulation No. 118) as subsequently amended by Martial Law Regulation No. 11'8 (Punjab Amendment) Ordinance XVI of 1972 and Martial Law Regulation No. 118 (Punjab Amendment) Act X of 1973, in order to provide legal cover to this policy. effect that the privately managed Primary, Middle and High Schools listed therein situated in the Province of the Punjab shall stand nationalised as from the forenoon of the 1st day of October, 1972.
3. By means of another Notification of even number dated the 24th October, 1972, the Governor of the Punjab announced tine appoint--ment of the officers as per list attached therewith as headmasters/ Headmistresses of the privately managed High Schools nationalized under Martial Law Regulation No. 118. The petitioners are some of the Headmasters/Headmistresses of these High Schools to which the educational policy was made applicable. According to them their status as Headmasters/ Headmistresses of the High Schools was guaranteed to them and they were entitled to the ' fixation of their salaries in the pay scales applicable to their counter parts in the Government service having regard to the length of service since their appointment in the pre-nationalization period. But on the 22nd of May, 1974 the Director of Public Instruction, Punjab has issued a Circular Letter No. 12792/NB. In accordance with the instruc--tions embodied in this circular letter the petitioners and some other Head--masters/Headmistresses of the High Schools are to be decategorised for the purpose of preparing a combined seniority list of all Headmasters/ Headmistresses of the High Schools alongwith the Senior English Teachers/ Headmasters of the Middle Schools, thereby placing them in the same category. It is alleged that the post of the Headmasters/Headmistresses of the High Schools is a gazetted post whereas the post of the Senior English Teachers/Headmasters of the Middle Schools is a subordinate post only.
4. During the pendency of the petition in the High Court at Lahore, a Notification No. S. O. (III)-1-59/73, dated 26th of September, 1974 was issued by the Governor of the Punjab in exercise of the powers conferred on him under para. 13 of Martial Law Regulation No. 118 promulgating the Punjab Nationalised Schools (Men and Women Sections) Teaching Posts Rules, 1974. Inter alia according to previso to sub-rule (1) of rule 4 of these Rules a person holding the post of Headmaster or Headmistress of a High School at the time of nationalisation of the school and possessing qualification prescribed for the post of Senior English Teacher, shall be deemed to have been appointed as a Senior English Teacher only and that the post of Headmaster/Headmistress shall be filled in accordance with these Rules. - In view of this further development the petitioners were allowed the permission to suitably amend their petition. In the amended petition filed by them they challenged the validity of these Rules as well. In support of their petition the petitioners largely relied on the provisions contained in sub- para. (2) of para. 7 of Martial Law Regulation No. 118 which, according to them, guarantees the posts held by them before the taking over of the privately managed schools and colleges.
5. But their petition was dismissed in limine as incompetent by a learned Judge of the Lahore High Court at Lahore on the 21st of July, 1975. They then filed an Inter-Court Appeal which was likewise dismissed in limine, on more or less different reasons of its own, by a Division Bench of the High Court on the 14th of October, 1976. Hence this petition for special leave to appeal from the judgment.
6. We have heard the learned counsel for the petitioners in this petition before us at considerable length. In dismissing the petition of the petitioners in limine, the learned Judge in Chambers was of the opinion;--
(1) that the provisions contained in Article 212, of the Constitution of the Islamic Republic of Pakistan, 1973 read with the Punjab Administrative Tribunal Act IX of 1974 operated on a bar to the jurisdiction of the High Court vested in it under Article 199 of the Constitution and therefore the writ petition filed by the petitioners are incompetent;
(ii) that the Punjab Nationalized Schools (Men and Women Section) Teaching Posts Rules, 1974.
7. Framed under para. 13 of the Martial Law Regulation No. 118 were ultra vires of the provisions contained in Article 240 of the Constitution;
(iii) but, that these Rules could be deemed to have been competently made by the Governor in exercise of the powers otherwise vested in him under section 23 of the Punjab Civil Servants Act VIII of 1974.
8. On appeal, the Division Bench of the High Court concurred with the learned Single Judge in holding that the jurisdiction of the High Court to entertain the writ petition was barred under Article 212 of the Constitu--petition. At the same time the Division Bench disagreed with the learned Judge in Chambers by holding that the Punjab Nationalised Schools (Men and Women Section) Teaching Posts Rules, 1974, framed by the Governor in exercise of the powers conferred in him by para. 13 of the Martial Law Regulation No. 118, were intra vires of Article 240, of the Constitution and that he was not justified in making recourse to the provisions contained in section 23 of the Punjab Civil Servants Act VIII of 1974 in his attempt, as a last resort, to uphold the validity of these Rules.
9. Although the Division Bench of the High Court in appeal was inclined to hold in favour of the appellants on the merits, but dismissed their appeal for the only reason that the writ petition out of which it has arisen was not competent in the matter.
10. It is common ground before us that with the taking over of the privately managed institutions the petitioners were relegated to the position of civil servants of the Province. Article 212 (1) (a) of the Constitution provides for the establishment of one or more Administrative Courts .Or Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons in the service of Pakistan, including the disciplinary matters. Clause (2) of this Article further lay down that not--withstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court -or Tribunal extends. It is evident from this-that the jurisdiction of the ordinary Courts is excluded only in respect of a matter to the extent to which the jurisdiction of an administrative Court or Tribunal extends and not beyond it. Section 3(1) of the Punjab Administrative Tribunal Act IX of 1974 provides for the establishment of Administrative Tribunals. It lays down that there shall be one or more Tribunals, each consisting of a chairman and two Members to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of Civil Servants including disciplinary matters. The Tribunal thus constituted exercises appellate jurisdiction only. In this connection section 4' of the Act expressly lays down that any Civil Servant aggrieved by "any final order, whether criminal or appellate", made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal.
11. From a combined reading of these provisions the learned counsel for the petitioners has argued that this ouster of the jurisdiction of the High Court is barred under Article 212 of the Constitution extends strictly to a final order, whether original or appellate made by a departmental authority in respect of terms and conditions of service, including disciplinary matters.
12. It was, therefore, stressed before us that the provisions of sections 3 and 4 of the Punjab Civil Servants Act are not applicable to the impugned Circular Letter No. 12798/ SB dated 25-5-1974 issued by the Director of Public Instructions, Punjab, consequently the writ jurisdiction of the High Court vested under Article 199 of the Constitution to challenge the validity of the directions contained in the impugned circular was not barred.
13. The Punjab Nationalised Schools (Men and Women Sections) Teaching Posts Rules, 1974 were made on the 26th September, 1974, by the Governor of the Province in exercise of powers conferred on him under para. 13 of the Martial Law Regulation 118. Article 240(b) of the Constitution lays down that subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined in the case of the services of a Province and posts in connection with the affairs of a Province, by or under "Act of the Provincial Assembly". In this connection in the opinion of the learned Judge in Chamber after. The coming into force of the 1973 Constitution the terms and conditions of service of those persons in the service of Pakistan could be determine only by an Act of the Provincial Assembly validly constituted under this Constitution and not by any executive act of the Governor under para. 13 of the Martial Law Regulation 118. But on appeal the Division Bench of the High Court did not agree with this interpretation. In its opinion the Provincial Assemblies under the Interim Constitution and the Constitution of 1973 are not two different and separate Assemblies. Both belong to the same species of Legislature. In arriving at this conclusion the Division Bench of the High Court on appeal adopted the reasoning, in the reported case of Badrul Haque Khan v. The Election Tribunal, Dacca and others (PLD 1963 SC 706But in this connection the learned counsel for the petitioners in distinguish--ing the authority submitted that the view thus formed by the High Court on the interpretation of Article 240 of the Constitution was not tenable and relied on the observations in Sibznra Kishore Achharyya Chodhury and others v. The Province of East Pakistan and another (PLD 1957SC(Pak)9This contention raises a question of first impression of considerable general importance as to the interpretation of Article 240 of the Constitution.
14. For all these reasons we grant the leave to appeal from the judgment of the High Court. Security in the sum of Rs. 5,000.
15. The petitioners have also applied for the issuance of an order restraining the respondents from disturbing the status of the petitioners to their prejudice anal emoluments drawn by them pending the disposal of the appeal. In the light of the above discussion it can be safely held that the petitioners have an arguable and a prima facie case in appeal. However we are unable to agree with the learned counsel that they stay order could be issued almost as a matter of course simply because the Government has) not even cared to put in any caveat to oppose this petition. We find that on the one hand there is question of the implementation of the educational policy for the whole of the country by the Government and on the other hand there is this apprehension of the danger to the status of some of the petitioners who are threatened with decategorisation and the preparation of a combined seniority list during the pendency of the appeal. In The Province of West Pakistan and another v. Malik Asghar Khan 1971 SCMR 569this Court observed Issuance of temporary injunctions to the Government Department in respect of service pattern is bound to disturb their working, and they should not ordinarily be issued unless there are compelling reasons to do so because balance of convenience ordinarily would not lie in disturbing the administrative arrangements of the Depart--ment. There can be no question of any irreparable injury being caused to the employee of refusing the temporary injunction to him as he can claim a monetary compensation in case he succeeds in his suit and the orders of the Government reverting the respondent to his original post are finally held as illegal and without jurisdiction."
16. These observations are quite apt and there are no compelling reasons to disturb the working of the Department in this case. In this connection section 56(d) of the Specific Relief Act lays down that an injunction cannot be granted to interfere with the public duties of any Department of the Martial or Provincial Government. On these principles, therefore, the balance of convenience does not lie in the issuance of any temporary injunction in favour of the petitioners.
17. But at the same time it goes without saying that' any order passed by the Government in this connection will be subject to the final decision on the validity of the impugned circular letter and the Rules in question and the portion shall abide by the result of this appeal.