' CH. MUHAMMAD IBRAHIM ZIA, J.--- These appeals by leave of the Court have been filed against the separate consolidated judgments of the Service Tribunal dated 30 11.2013, 02.05.2014, 13.11.2014 and 20.10.2014, whereby while accepting the appeals filed by the retired Primary Teachers, they have been reinstated in service while setting aside the notifications of their retirement.
2. The controversy in these appeals relates to the retirement of Middle Pass Primary Teachers of the Education Department. According to the relevant facts, the private-respondents were permanent civil servants working as female Primary Teachers in the Education Department. In their appointment orders, it is mentioned that due to non-availability of matriculate candidate, appointment is being made but the appointees shall be under the obligation to acquire the requisite qualification i,e, matriculation. They were time and again directed by the authorities to improve their academic qualification but they failed. Some of them sought extension of time to improve the qualification. Ultimately, they were retired from service by the Authority vide separate notifications dated 30.12.2008, 31.12.2008, 19.9.2010, 30.9.2010, 19.9.2012, 20.9.2012, 17.12.2012 and 30.1.2013. They challenged the validity of these retirement notifications through separate appeals before the Service Tribunal. However, subsequently, vide another notification dated 16.8.2013, the retirement orders to the extent of Mst. Naseem Akhter, (respondent No,2 in Civil Appeal No,93/2015), Mst. Shameem Kausar, and Mst. Zahida Begum (not before us) was recalled because they had passed the matriculation examination. The Service Tribunal through separate consolidated judgments while accepting all the appeals, setting aside the retirement notifications, reinstated all the retired female Primary Teachers in their services. Appeal Nos. 65/2014, 66/2014, and 9/2015 before this Court against the judgments of the Service Tribunal have been filed by the appellants who being eligible and qualified have been appointed in due course of law by the Authority against the posts falling vacant due to the retirement of the Middle Pass Primary Teachers. However, Civil Appeals Nos. 254/2014, 93/2015, and 123/2015 have been filed by the Government-Authority to challenge the validity of the judgment of the Service Tribunal.
3. In all the above captioned appeals the identical proposition i,e, the retirement of the middle pass primary teachers after completion of 25 years service and appointments made against those vacant posts is involved. Therefore, due to identicity of legal and factual propositions, it is felt advised to decide all these appeals through this consolidated judgment.
4. Messrs Mansoor Pervaiz Khan, Advocate-General, Ch. Shaukat Aziz, Additional Advocate-General, Sardar M.R. Khan, Additional Advocate-General, Raja Iqbal Rasheed Minhas, Raja Gul Majeed Khan, Sardar Karam Dad Khan and Sardar Nisar Ahmed Khan, Advocates, the learned counsel for the contesting appellants and Government/Authority unanimously submitted that at the time of appointments of middle pass primary teachers, the Rules prescribing basic required qualification as matric-PTC, although were not in the present shape holding the field but the laws enforced at that time were also requiring the basic qualification as such. In most of the appointment orders of the middle pass candidates, a clear condition was mentioned that they will have to pass the matriculation examination within 2 years' period. Despite rendering the services for decades, they could not fulfill this condition and thus, on this sole ground they could not have any legal right to claim to remain posted till attaining the age of superannuation. In this regard, they have referred to some orders. They further submitted that not only in the individual cases this condition was imposed but subsequently due to hardships in the educational institutions and failure of the middle passed primary teachers to perform their duties according to new curriculum, time and again the matter was considered at Government as well as Secretariat level. A number of circulars were issued to the concerned civil servants and their concerned district level Authorities, with the instructions either the middle pass primary teachers should be retired or they should fulfill the condition of passing matriculation examination, otherwise, it will amount to adversely affect the public interest. As according to the new curriculum, some subjects like English and Mathematics which were not previously included at primary level now have become part of the syllabus and it is not possible for a middle pass primary teacher to teach such syllabus. Thus, the requirement of the public interest to save the interest of future generation and to provide them fundamental requirement of the education at primary level, the induction of qualified teachers who have the ability of teaching the syllabus, is necessary. They further submitted that despite the collective and individual notices and passage of decades' period, the middle pass primary teachers could not improve their qualification. Keeping in view the services rendered, while taking lenient view, they were allowed to complete 25 years' service and thereafter with full pensionary benefits they have been retired from service. Thus, no terms and conditions of their service has been adversely affected. The particulars of newly selected candidates show that against these vacancies Master decree holders with M.Ed and B.Ed professional qualification, have been selected. They further submitted that the service laws are not stagnant. It is a live process and according to the public interest and changed circumstances, the Authority is vested with the powers to make laws and Rules. Under.The constitution, the protection of the previous laws is only conditional till alteration or substitution of law. Thus, the Rules enforced are fully applicable which are consistent with the constitutional spirit. It is further argued that non-providing the opportunity of hearing is a lame excuse. In view of the peculiar facts of these appeals, it is evident that the condition of passing of matriculation examination is contained in appointment orders and subsequently, individually and collectively, their attention was drawn to pass the matriculation examination but they could not succeed. Even otherwise, the principle of audi alteram partrem has to be applied according to the facts and circumstances of each case. In 'a number of , judgments, the principle of law has been enunciated that if the explanation proposed to be furnished after providing an opportunity of hearing is already on record or known to the parties or Authority, in such circumstances, impliedly the opportunity of hearing is deemed to have been provided. Merely on technical grounds such acts cannot be deemed as illegal. In this regard reference can be made to a case reported as Secretary for Prime Minister and 3 others v. Muhammad Aslam and 5 others [2010 PLC (C.S.) 155].
5. Conversely, M/s. Raja Sajjad Ahmed Khan, Sadaqat Hussain Raja, M. Dawood Khan Abbasi, Syed Shahid Bahar, Sardar Muhammad Riaz Khan, Asghar All Mallik and Ch. Muhammad Manzoor, Advocates, representing the respondents, middle pass retired primary teachers, unanimously argued that .At the time of appointment, neither there was any prescribed statutory provision holding the field requiring qualification of matric-PTC nor the departmental Authority has imposed any such condition. Thus, the terms and conditions of the civil servants who have been permanently inducted have to be determined according to law enforced. Any subsequent enactment of Rules or amendment cannot be enforced in such a manner to deprive the civil servants of their accrued vested legal rights. They further submitted that according to law, the permanently inducted civil servants have legal right to serve till attaining the age of superannuation prescribed under law i,e, 60 years. Before attaining the age of superannuation retirement is violation of the terms and conditions of service which is not permissible under law.
They further forcefully stressed that according to the fundamental principle of administration of justice, no one can be condemned unheard and the Authority before retiring the appellants has not provided them any opportunity of hearing. All the retirement orders are basically void, offending the most fundamental principles of administration of justice, therefore, such retirement orders could not hold the field. The Service Tribunal has rightly reinstated the respondents while declaring the retirement orders as illegal, therefore, the appeals are not maintainable.
6. We have considered the arguments advanced at bar on behalf of both sides and also examined the record carefully. According to the brief statutory history, before enforcement of the Azad Jammu and Kashmir Civil Servants Act, 1976 (hereinafter to be referred as Act, 1976), and the Rules made there under, ordinarily, the service matters were governed under the Kashmir Old Laws known as Kashmir Service Regulations. The cursory survey of these regulations speak that there was no classification of teachers like present i,e,, primary, junior and secondary school teachers or subject specialists etc., rather the Classification was with reference to their educational qualification such like: "(i) Middle, proficiency in Urdu, Hindi, Punjabi, Sansikrat, Persian or Arabic with least primary pass;
(ii) Teachers with above referred qualification after passing J.V. Examination.
(iii) Matriculates;
(iv) Matriculate J.v's
(v) F. A;
(vi) Honors in Hindi, Urdu, Gurmukhi, Sanskrit, Persian or Arbic with at least Middle pass;
(vii) Graduate;
(viii) Trained Graduate;
(ix) M.A's;
(x) M.A. B.T.'s etc."
' Whereas, after enforcement of Act, 1976, and the rules made thereundex, the service structure of education department has revolutionary been changed. Now, specially the schools teachers have been clarified as: primary teacher, junior English/Elementary Schools Teachers, Arabic Teachers, Drawing Teachers, Physical Education Teachers, Qari, Qaria, Secondary School Teachers, Subject Specialists etc. In this classification, the minimum required educational qualification along with professional training is also prescribed. Under the provisions of section 49 of Azad Jammu and Kashmir Interim Constitution Act, 1974 the continuation of previously enforced laws was conditional till enactment of new laws. According to the spirit of this constitutional provision, the law making Authority is vested with the powers to regulate the terms and conditions of person in service of Azad Jammu and Kashmir. Undoubtedly, by enforcement of Act, 1976 and the Rules made thereunder, the matter of terms and conditions of civil servants stood regulated by and the same has to be decided in the light of these laws. To, this extent, the previous law will have no application.
Thus, the provisions of Act, 1976 and other statutory provisions of Rules made thereunder will have force of law in relation to determination of terms and conditions of service of civil servants.
Moreover, none of the retired middle pass primary teachers, has challenged any provision of the Rules made under Act, 1976, thus, it can be safely held that the Rules made thereunder may have full application for the purpose of regulating the terms and conditions of service of the teachers of the Education Department.
7. According to the statutory provisions of the fundamental laws regulating the terms and conditions of Civil Servants i,e,, Act, 1976, the retirement from service is one of the terms and conditions of service. In this regard, section 12 of Act, 1976 reads as follows:- '
"12. Retirement from service:-- A Civil Servant shall retire from service:-
(i) On such date after he has completed ten years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest, direct; and
(ii) If no direction is given under clause (1) then on the completion of the sixtieth year of his age:
(iii) At any time, at his option, after completion of twenty five years service qualifying for pension.
' Provided that no order under clause (i) shall be made in respect of a Civil Servant unless the competent authority has informed him in writing of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against it.
' Explanation:- In this section "competent authority" means the appointing authority or a person duly authorized in that behalf not being a person lower in rank than the Civil Servant concerned.
' Another provision which is also relevant in this regard is Rule 3.5 of the Azad Jammu. And Kashmir Civil Servants Pension Rules, 1971 which reads as follows: "3.5 Retiring person--- A retiring pension is granted to a Government servant who---
(i) Opts to retire after 25 years qualifying service or such less time as may for any special class of Government Servants be prescribed, or
(ii) is compulsorily retired from service by the authority competent to remove him from service on grounds of inefficiency, misconduct or corruption; or
(iii) is retired on completion of 25 years of Government service or earlier in the public interest."
Both the above referred provisions speak that the civil servant can be retired on completion of 25 years' of service or earlier in the public interest. Thus, it cannot be said that the retirement orders passed after 251 years' service are without lawful authority.
8. So far as the most heated argument regarding non-providing the opportunity of hearing is concerned, no doubt under the provisions of section 12 of Act, 1976, for retiring a civil servant in public interest the requirement is that no such order will be made unless the competent Authority has informed in writing of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against it.
9. In the light of the peculiar facts of these cases, for determination of this aspect on behalf of the parties a number of appointment orders of middle pass primary teachers have been referred which contain the condition that: {{URDU TEXT}} In this regard, for example, reference can be made to annexure "B" available on the file of Service Tribunal in the case titled "Saeed Bibi v. DEO" and "URDU TEXT" in the case titled Naseem Akhtar v.
Azad Govt. And others. Same like, some other orders are also available in the other files. The official documents have also been brought on record that at District and Secretariat level, this matter had actively been taken up and attention of the middle pass teachers was drawn in this regard and time and again they were informed in written. In this context, it will be useful to reproduce here one of the circulars dated 25.03.1987 issued at District level which reads as follows: {{URDU TEXT}} ' Same like, at Secretariat level in some of the cases, extension was granted for passing the matriculation examination in the stipulated period. One of these orders is of 14.11.1998 which reads as follows:-{{URDU TEXT}} {{URDU TEXT}}
10. The record reveals that since 80's this matter remained under active consideration of collective and individual levels and finally the department decided for retirement of such middle pass primary teachers who could not improve their qualification. The Secretary of the Education Department issued order dated 14.05.2004 to the sub-ordinate administrative officers directing that:{{URDU TEXT}}
11. It appears that in this background for implementation of decision taken in public interest, the process for retirement of middle pass primary teachers who failed to improve their qualification was initiated and side by side the process of advertisement of the posts and selection on merit was conducted. On completion of the due process, such primary teachers have been retired with full pensionary benefits on completion of C 25 years' service through different notifications. One of the retirement notifications dated 19.9.2012 speaks that: {{URDU TEXT}} ' Whereas some vacancies were already available due to retirement of middle pass Primary Teachers after completion of 25 years service, vide notifications dated 30.12.2008, 31.12.008, 19.9.2010 and 30.9.2010.
12. The above stated facts clearly depict that all the middle pass Primary Teachers from the day one were well aware of the fact that for continuation of service, they will have to improve their qualification and pass the matriculation examination. Thus, it cannot be said that they have been surprisingly retired without providing the opportunity of hearing: The phraseology of the impugned orders is very much clear that in 25 years' period, they could not succeed to improve their educational qualification. Same like, as discussed hereinabove, in the departmental orders including the appointment orders the condition of passing of matriculation examination within 2 years' period is imposed and thereafter through the departmental orders time and again attention of such teachers was drawn towards passing of matriculation examination. Even their salary was also stopped in the year 1987 but despite this they could not fulfil the imposed conditions. In this background, it is obviously clear that they have been provided more than sufficient opportunity but they failed. Thus, it cannot be said that the principle of administration of justice i,e,, audi alteram partem has been violated.
13. As hereinabove reproduced provisions clearly authorise the Authority to retire the civil servants in the public interest, thus, in view of the peculiar facts of these appeals, it hardly requires any further deliberation that the retirement orders of middle pass Primary Teachers E are quite in the public interest. The time has gone when only reading and writing was considered as education. We are passing through the era of global changes and life has now become quite dependent on the modern inventions and other accessories. Today's generation or children's requirement is not mere to attain the ability of reading or writing but for their survival they will have to compete with the world and this requires the educational parameters compatible with, the modern age. Thus, it is the basic requirement that for meeting the new era's requirements the basic educational curriculum must have to fulfil the required standards which includes the teaching of global sciences and other subjects like computers and information technology etc. Surely, such syllabus cannot be taught by the teachers who are middle pass and despite remaining teachers for pretty long time of 25 years they could not succeed to pass matriculation examination. Mere providing them an opportunity to attain the age of superannuation and ruining the future of the new generation, is neither the spirit of law nor in the public interest. Thus, the decision taken by the Government in the public interest according to the peculiar facts of these cases, is quite legal and valid.
14, According to the admitted facts brought on record, against the posts becoming available due to the retirement of middle pass Primary IQ Teachers, the candidates who have been selected on merit are highly qualified. The majority of them is having the qualification of masters degree in different subjects as well as the professional education. Same like, some of them are B.A, B.Ed, B.A C.T. Etc. This fact shows that highly qualified candidates on merits are available who can better perform the professional duties according to the required standards. Thus, through selection on merit, the selected candidates who have replaced the middle pass Primary Teachers, their qualification and eligibility is also another aspect to safeguard the public interest.
15. It is also brought on record that to the extent of the teachers who fulfilled the condition of passing of matriculation examination, the impugned departmental retirement orders have been recalled and such order is also brought on record. One of those orders is the notification dated 16.08.2013 available on the file of Service Tribunal in Service Appeal No,1134 titled Naseem Akhtar v.
Azad Govt. And others. According to this notification, the Primary Teachers i,e,, Mst. Shatnim Akhtar, Naseem Akhtar and Zahida Begum who have passed the matriculation examination, to their extent the impugned departmental notification of retirement has been recalled.
16. We are conscious of the fact that, due to litigation and some other reasons, some middle pass Primary Teachers have served for some period after their retirement. As the orders of their retirement have been declared valid and operative, thus, for avoiding complications and anomalies, we deem it proper to clarify that notifications of retirement of middle pass Primary Teachers dated 30.12.2008, 31.12.2008, 19.9.2010, 30.9.2010, 19.9.2012, 20.9.2012, 17.12.2012 and 30.1.2013, are effective from the date of issuance. The retired primary teachers shall be entitled for the pensionary benefits, accordingly. However, if thereafter any service is rendered by them, that will be treated as re-employment on contract basis. The salary paid for such period shall also be treated on contract basis. But the retired Middle Pass primary Teachers whose retirement orders have been set-aside by the Service Tribunal and the orders of Service Tribunal have not been challenged in appeal before this Court, they will be deemed in service till the date of this judgment.
17. For the above stated reasons, while setting aside the impugned judgment of the Service Tribunal, the Appeals Nos.65/2014, 66/2014, 254/2014, 09/2015, 123/2015 and 93/2015 stand accepted. As mentioned hereinabove that to the extent of one of the respondents, Naseem Akhter, in Civil Appeal No,93/2015, the departmental authority has withdrawn her retirement vide notification dated 16.08.2013, thus, to her extent the impugned departmental retirement order dated 19.9.2010 has become in effective and in operative. Therefore, the appeal filed by the appellant-II Government to her extent stands dismissed.
' The appeals stand disposed off in the manner indicated above. No order as to costs