ASLAM RIAZ HUSSAIN, J. This judgment shall dispose of Civil Appeals, No. 1/81 filed by the Province of Punjab, and Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of 1981, filed by Sb. Muhammad Yusuf, Saeed Ahmad Khan etc. Mst. Shahnaz Akh:ar, Muhammad Sharif etc. Mat. Najma Parveen, Maqsood Ahmad etc. Malik Mulazim Hussain, Sardar Muhammad Zaigham, Shafiqur Rehman, Miss Mahmooda Asmat, Sufi iftikhar Yaqub etc. Ghulam Farid etc. Mahmood Ahmad and H. M. Tanveer, Teachers of different Schools and colleges, as common questions of law arising out of the same facts rind circumstances are involved in these appeals.
Briefly stated, the facts giving rise to the present appeals are that on 15-3-1972, the Government of Pakistan announce.5 its Education Policy, involving a scheme for nationalisation of privately managed Schools and Colleges. The scheme was subsequently implemented through M. L. R. 118 promulgated on 1-4-1972. Paragraph No. 4 of M. L. R. 1 [8, provided that with effect from 1st of September 1972, will privately managed colleges situated in the Provinces, shall vest in the respective Pro--vincial Government and those in Islamabad shall vest in the Central Government.
Paragraph No. 5 of the said Martial Law Regulation provided that such schools in each Province and in lslamab3d as are notified in the official Gazette, published on or after 1st October, 1972, shall vest in the respective Provincial Government or the Central Government as the case may be.
Paragraph No. 6(I) of the said Martial Law Regulation placed certain embargos on the making of any changes by the owners or Managers of privately managed Schools and Colleges, in the contracts relating to the premises of their respective institutions after 15-3-1973 (i.e., after the promulgation of the Education Policy). Similarly, paragraph No. 7(I) prohibited them from employing new staff or making any changes in the terms and conditions of the existing staff of the private Schools and Colleges after the said date. Sub-paragraph (2) of para. No. 7 provided certain guar--antees to the teachers.
Subsequently, through amendments in paragraphs Nos. 6 and 7 of 1976, exceptions were made to the above-mentioned embargos imposed by these paragraphs. Paragraphs Nos. 9, 10 and 11 spelt out the rights and liabilities acquired by the Government in relation to the taken-over institutions.
Of these, paragraphs Nos. 9 and 11 were subsequently deleted and para--graph No. 10 was amended by Punjab Ordinance No. XVI of 1972 (which later became Act X of 1973). Paragraph No. 13, conferred Rule-making powers on the Provincial Government. This paragraph reads as follows :- "13. The appropriate Government may, by notification in the Official Gazette, make such rules as appear to it necessary or expedient for carrying out the purposes of this Regulation."
3. All the colleges in the Province stood nationalised on 1-9-1972, as provided in paragraph No. 4 of Martial Law Regulation 118. On 30-9-1972, the Government of Punjab issued a notification under paragraph No. 5 of Martial Law Regulation 118, to the effect that all privately managed Schools mentioned therein shall stand nationalised with effect from 1-10-1972. Since this notification was issued a day earlier than the date provided by paragraph No. 5, a Provincial Act, namely, Punjab Act VI of 1973, was enacted to give it legal cover. From the dates of their respective take--over all the privately managed Schools and Colleges became Government institutions. The teachers employed therein also continued to serve in their respective posts. Two notifications, dated 4-9- 1972 and 24-10-1972, were issued by the Government of the Punjab. The first related to the appointment of Principals, Professors and Assistant Professors of colleges on a temporary basis and reads as follows :- "The Governor of the Punjab is pleased to order the appointment of the gazetted staff mentioned in the Schedule attached to the Notification in respect of the Colleges nationalised vide this Department Notification of even number, dated 31st of August 1972, against the post created vide this Department Order of even, number, dated the 30th,, and 31st August, 1972.
2. These appointments are on purely temporary basis until further orders and subject to the approval of the Public Service Commission and the Constitutional Provisions regarding the age of superannuation, citizenship and such rules as may be framed in regard to the service conditions of the said staff by the Government."
The second notification related to the appointment of Headmasters/Head--mistresses of all privately owned and managed Schools (except those who had passed the age of superannuation) as Headmasters/Headmistresses of the taken over Schools on ad hoc basis, on the following terms and conditions :--
(1) that their appointments as such would not give them any right to these posts ;
(2) that they would not be entitled to claim seniority on the basis of this notification over their colleagues in the cadres of Headmasters as well as Senior English teachers ;
(3) that this notification would not preclude Government from taking any further action such as examining their suitability for appointment to these posts ;
(4) these appointments will last until their suitability is finally determined or they are replaced by suitable officers." .
About l --years later, on 22-5-1974, the Director of Public Instructions. Punjab, issued a Circular letter, laying down the principle regarding the preparation of a combined seniority list of headmasters/headmistresses and Senior English Teachers for the purpose of fixation of the pay of certain category of Senior English Teachers. It reads as follows :- "As you are already aware, the fixation of pay of those Senior English Teachers who were working as Heads of Nationalised High Schools on or before 30-9-1972, was deferred, pending determination of their seniority. As decided, a combined seniority list to be prepared of all the Headmasters/Headmistresses of Nationalised High Schools with the Senior English Teachers of High Schools and Headmasters/ Headmistresses of Junior Model Schools and their Senior English Teachers who possess the requisite qualifications of the post. The basis for determining the seniority is the total length of service in the grade, condunings gaps in service to the extent of 5 years. The Liaison Officers of District Pay Verification Committees may be asked to submit the lists by the 3rd June 1974, with complete bio-data. The President of the District Nationalised Schools Teachers Association should also be associated in the completion of the exercise. As for Lahore, a Special Committee has been constituted to prepare the seniority list."
It would be noticed that the substance of this letter is that for preparing a combined seniority list of the Headmasters/Headmistresses and Senior English Teachers (hereinafter called as SETS), the former were to be deemed as SETS. The basis of determining their seniority was to be the total length of se 'e 'in the Grade' and a gap in service upto a period of 5 years was to be condoned.This policy letter amounted to a direction for the a o e condoned. This Policy letter decategorisation of Headmasters/Headmistresses and bringing them down to the category of SETS (now known as SETS).
4. A few months later, on 26-9-1974, the Government of the Punjab promulgated the Punjab Nationalised Schools (Men and Women Section) Teaching Posts Rules, 1974, in exercise of its powers under paragraph No. 13 of M. L. R. No. 118 for "regulating the recruitment to the teaching staff in the Nationalised Schools and prescribing conditions of service for persons appointed thereto".
Similar vales were framed for the same purpose with regard to the teachers of Nationalised Colleges.
Rule 4(1) of the Rules relating to Schools provided that "all teachers who were serving in the Nationalised Schools on or before 14th March 1972, and fulfilled certain conditions mentioned in the said rules, shall be deemed to have been appointed to she posts which they were holding at the time of nationalization of the Schools. An exception was, however, made with respect to Headmasters/Headmistresses, who were not to be considered as having been appointed as such (i.e. As Headmasters/Headmistresses) with effect from the date of . The nationalisation, and a proviso was added to rule 4(t) saying that they would, instead, be deemed to have been appointed only as Senior English Teachers. The said proviso reads as follows :- "A person holding the post of Headmaster or headmistress of a High School at the time of nationalization of the School and possessing the qualifications prescribed for the post of Senior English Teachers, shall be deemed to have been appointed as Senior English Teachers and the post of Headmasters or Headmistresses shall be filled in accordance with these rules."
Sub-rule (2) of rule 4 provides that, initially, the total number of posts of Headmasters/Headmistresses of High Schools shall be filled by selection from persons holding the posts of SETS. And, thereafter, 5 % of the vacancies occurring in such posts shall be filled by election from among the persons holding the posts of SETs. And headmasters of middle Schools with not less than 8 years service and the remaining 15 % of such vacancies shall stand abolished from the cadre of teachers of taken over schools and transferred to the appropriate cadre of teachers of Schools maintained by the Government. Provision was also made by rule 4(3) for filling posts of SETS and it was provided that initially all the existing vacancies shall be filled by promotion from amongst persons mentioned above while the remaining 50 Y. Of such vacancies shall stand abolished from the cadre of taken over Schools and stand transferred to the appropriate cadre of teachers of the Schools maintained by the Government. Sub-rule (4) provides that all the posts of S. V. C., J. V. C. And Oriental Teachers which fall vacant shall stand abolished from the cadre of the privately managed Schools and transferred to the appropriate cadre of the .Teachers of Government maintained Schools.
Similar rules, called Nationalised Colleges (Men and Women Section) Teaching Posts Rules, 1974 frame with regard to College teachers, created the following cadres of teachers employed in Colleges :-
(a) Principals of Degree Colleges and Professors ;
(b) Principals of Intermediate Colleges and Assistant Professors ;
(e) Lecturers ;
(d) Directors Physical Education ; and
(e) Librarians.
The right of determining the number of posts in each of these cadres was retained by the Government. Rule 5 of the said Rules provided that all the Principals, Professors and Assistant Professors of Colleges were to be deemed to have been appointed as lecturers, w.e.f., 1-9-1972. Rule 6 laid down the method of initial recruitment as well as filing the subsequent vacancies in the post of Principals, Professors and Assistant Professors. It reads as follows; "6.-(1) Total number of posts of Assistant Professors and Principals of Intermediate Colleges as existing immediately before coming into force of these rules shall be filled by selection from among the persons holding posts of Lecturers (including those who are deemed to have been holding such posts) in the Nationalized Colleges and thereafter seventy-five per cent. Of the vacancies occurring in the cadre shall be filled try selection from among the persons holding the posts of Lecturers under these rules and the remaining twenty-five per cent. Of the posts falling vacant shall stand abolished from the cadre and stand transferred to the appropriate cadre of Colleges maintained by the Government.
(2) Total number of posts of Principals of Degree Colleges and Professors existing immediately before the coming into force of these rules shall be filled by selection from among the persons holding posts of Principals of. Intermediate Colleges, and Assistant Professors under, these rules and thereafter fifty-five per cent. Of the vacancies occurring in the cadre shall be filled by selection from among the persons holding the posts of Principals of Intermediate Colleges and Assistant Professors under these rules and the remaining forty-five per cent. Of the posts falling vacant shall stand abolished from the cadre and stand transferred to the appropriate cadre of the Colleges maintained by the Government."
5. Headmasters/Headmistresses/Professors etc. Of Schools and Colleges who were to be decategorised by the said Rules felt aggrieved and challenged the vires thereof through writ petitions which were beard and dismissed by a learned Single Judge of the Lahore High Court. They filed Intra-Court Appeals against the judgment of the learned Single Judge, which too, were dismissed. They then came up before this Court through a petition for Leave to Appeal but it was withdrawn by them in order to approach the proper forum, namely, the Punjab Services Tribunal.
6. A number of appeals were then filed before the Services Tribunal and lengthy arguments were addressed before it by different learned counsel appearing for the various teachers who raised a number of contentions. But the main contentions raised on behalf' of the affected teachers were that rule 4(1) (and the proviso thereto) of the Rules relating to School teachers and rule 5 of the Rules relating to college teachers, respectively, were ultra vires of paragraph No. 7(2) of M. L. R. 118, which guaranteed to these teachers not only their pay but also their posts, and secondly that the said Rules were beyond the scope of the rule-making authority conferred on the Provincial Government by paragraph No. 13 of M. L. R. 118.
These contentions were strenuously controverted by the learned counsel appearing on behalf of the Government, who defended the vires of the said Rules.
The learned Tribunal after discussing the various arguments and conten--tions raised by different learned counsel appearing before it, held that the rules in question were ultra .Vires of paragraph 13 of M. L. R. 118 and directed the Government to make fresh rules under the; relevant law namely, section 23 of the Punjab Civil Servants Act, 1974. In this respect it relied on Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 13 others PLD 1977 Lab, 549. It further held that out of the 6 categories of Headmasters, mentioned b it on page 21 of the impugned judgment), those falling in categories (c) to Y (i.e. Those who are neither qualified to be appointed as headmasters nor as SETS. Or were ,not appointed as such prior to 1-10-1972. Or those who had been appointed on or after the said date as and when any vacancy arose, were not entitled to claim any protection under paragraph No. 7 of M. L. R. 118.
7. Before us the learned counsel for the petitioners raised more or less the same contentions, as before the Tribunal. We do not propose to reproduce and deal with such of them as are not necessary for the decision of the real issue in the case. Suffice it to say that shorn of all embellishments, the main and basic contentions urged on behalf of the Headmasters/head-- mistresses, were; firstly that rule 4(1) of the Nationalised Schools (Men and Women Section)
Teaching Posts, Rules, 1974 and rule 5 of the Nationalised Colleges (Men and Women Section)
Teaching Posts Rules, 1974, are ultra vires of M. L. R. 118, inasmuch as they are violative of the guarantees given by paragraph No. 7(2) to the teachers of Nationalised Schools and Colleges, namely that they shall not only be entitled to receive the same scale of pay as was admissible to their counterparts in Government maintained institutions, having equivalent qualifications, experience and seniority, but will also be entitled to retain their status, i.e., the posts which they held on the date of nationalisation. It was argued on behalf of some headmasters that paragraph No. 7(2) only guaranteed comparable pay and not the status. It was also urged that the said Rules are ultra vires of paragraph No. 13 because they are beyond the rule-making power conferred on the Govern--ment by the said paragraph. It was submitted that paragraph 13, empower--ing the Government to frame rules only "for carrying out the purposes of M. L. R. No. 118", but the Rules in question cannot be said to carry out any purpose for which M. L. R. 118 was promulgated, as the purpose of that M. L.. R.. Was limited only to nationalising private Schools and Colleges and no more.
The Government's stand was that although on nationalisation the teachers of all taken over institutions stood inducted into Government Service, yet they were not guaranteed the posts which they were holding immediately prior to the date of nationalisation. It was submitted that paragraph No. 7(2) of M. L. R. 118 only guaranteed them comparable salary. It was also urged that rule 4(1) of the Rules relating to School teachers and Rule 5 of the Rules relating to College teachers, had been made for carrying out the purposes of M. L. R. 118 and, as such, were within the scope of rule-making power conferred by paragraph No. 13.
It was urged by the learned Assistant Advocate-General, that in any case the rules in question could be validated by de.-wing them to have been framed under section 23 of the Punjab Civil Servants Act, 1974, instead of paragraph No. 13 of M. L. R. 118, and the mention of the said paragraph in the rules should be considered only a mis-description of the powers under which they were framed.
8. A careful consideration of the arguments advanced by the learned counsel for the parties would show that the basic questions which require determination are;
(1) Whether the rules in question, regulating the recruitment of the teaching staff of the nationalised Schools and Colleges have been validly made under paragraph No. 13 and can be said to have been made to carrying out any purpose ofM. L--- R. 11.8.
(2) Even if the said rules are within the scope of paragraph No. 13 and could be validly made thereunder, whether rule 4(1) of the Rules relating to Schools and rule 5 of the Rules relating to Colleges decategorising Headmasters and Professors and Assistant Professors are not ultra vires of tile guarantees given to the teaching staff of the taken-over institutions by paragraph No. 7(2) of the above-noted Martial Law Regulation.
This would, also give rise to a question as to whether paragraph No. 7(2) of M. L. R. 118, only guarantees comparable pay to teachers of nationalised institutions or it also guarantees their status, i.e. The posts which they were holding at the time of nationalisation; and
(3) If the rules in question could not have been validly made under paragraph No. 13 of M. L. R.- 118, can . They not be deemed to have been framed under the Punjab Civil Servants Act, 1974.
9. The first question to be considered is whether the rules in question are within the ambit of paragraph No. 13 of M. L. R. 118.
The contention raised by the respondents is that paragraph No. 13 only empowers the Government to make such rules as appear to it to be necessary or expedient "for carrying out the purposes of M.
L. R. 118". But since the rules in question which have been made for regulating the recruitment of the teaching staff of the Nationalised Schools and Colleges and determin--ing their conditions of services, are not referable to any of the paragraphs of M. L. R. 118, it cannot be said that these rules have been made to carry out any purpose of M. L. R. 118 and, as such they are clearly beyond the scope of paragraph No. 13. This contention weighed with the learned Tribunal which observed that :- "In this context we asked the respondents to apprise us of any provi--sions in the M. L. R. 118 embodying the purposes (other than scale of pay) which purportedly were carried out by framing the rules on 26-9-1974 qua the status of the appellants. The learned counsel appearing for the respondents have been not able to point out any provisions in M. L. R. Which could possibly cover this aspect of the case or authorise the framing of the rules in question. Since the power of the Government to frame the rules was restricted to carry out the purpose of M. L. R. And since none of the provisions contained under M. L. R. 118 concerned the status of the employees of the taken over institutions, therefore, the impugned rules, in so far as it. Purported to determine and fix the status of the appellants before us, were ultra vires of M. L. R. 118. . . . . . . ."
As a matter of fact, it appears that the learned Tribunal has based its decision invalidating the rules mainly on this finding. We are however, not inclined to agree with this view. A reading of M. L. R.
118 in its entirety together w4h the Education Policy of the Government and the speech of the then Minister for Education (delivered on 10th September, 1972 and published under the title `No Doubts : No Fears') clarifying and highlighting various points of the Education Policy, which was subsequently given effect to through this Regulation, would show that the purpose of enacting the Regulation was, evidently, not only to nationalise but also to rationalise the `takeover of the privately owned educational institutions and make it workable on permanent basis. It can safely be assumed that by M. L. R. 118, the Govern--ment did not merely intend to provide for the power of taking over all Schools and Colleges and then leaving things to resolve themselves. Although M. L. R.
118 does not contain any specific provision to that effect but when read in the light of the above- mentioned policy statement, it becomes quite clear that the intention was to ultimately create a unified system of education and merge the two separate classes of institutions (i.e. The takenover and the Government maintained Schools and Colleges), and their respective staff into one integrated whole. This would necessary involve laying down the principle and making rules relating to method of recruitment, creation of cadres and determination of seniority and such other matters as would tend to facilitate the integration of two separate sets of civil servants. The transition may not, however, always be smooth and the Government may sometime per force have to make such rules or take such measures which may not be palatable to some of the persons involved. It may be mentioned that even after the establishment of West Pakistan in 1955 many difficulties were faced by the Government in bringing about the integration of the different Departments services in the four Provinces: Various policies bad to be enunciated from time to time for this purpose but they were not always universally acceptable because in the very nature of things they resulted in hardships to certain category of servants.
10. As a result of the above discussion, we are of the view that the rules made to regulate the recruitment of the teaching staff of the nationalised educational institutions and laying down the terms and conditions applicable to them are within the scope of paragraph No. 13 as they are aimed inter alia, at carrying out a very important and essential purpose of M. L. R. 118, i.e. the ultimate integration of two separate sets of educational institution and the merger of the two different cadres of civil servants employed therein. We are, therefore of the view that the rules in question are within the scope of paragraph No. 13. Consequently we hold them to have been validly mad] under the said paragraph of Martial Law Regulation No. 118.
11. Having held that the rules in question have been validly made under paragraph No. 13 of M. L. R.
118, it is. Not necessary to deal with the contentions whether the said rules can be deemed to have been made under section 23 of the Punjab Civil Servants Act, 1974.
12. We now come to the question, whether the provision of rule 4(2) of the Rules relating to the teachers and rule 5 of the Rules relating to teachers of Colleges (which have decategorised the headmasters in the first mentioned case and the principals, professors and assistant professors in the second case) are ultra vires of paragraph No. 7(2) as being violative of the guarantees given by that paragraph to the teachers of nationalised institutions.
Lengthy arguments were put forward by the learned counsel for the parties on this point but we donot propose to deal with the contentions which were only peripheral or ancillary and shall deal only with those which are necessary for the purpose of deciding the question in issue.
One of the contentions raised on behalf of some of the headmasters/ headmistresses, was that provisions of paragraph No. 7(2) do not relate to teachers of takenover Schools and Colleges at all, but relate only to the staff of institutions which are still privately owned or managed.
Another set of counsel for the respondents urged that the provision guarantees to the teachers of the takenover institutions not only the pay equivalent to that received by their counter parts in the institutions maintained by the Government but also guarantees them the status, i.e., the posts, held by them at the time of nationalisation.
Yet another set of learned counsel for the respondents, as well as the learned counsel for the Government, took up the position that paragraph No. 7(2) only guarantees them comparable pay but not the status:
13. We have given our anxious thought to the above-noted contentions and have carefully studied the provisions in question in the light of the other provisions of M. L. R. 118 as well as the Education Policy and the speech of the Education Minister dated 10th September, 1972, in order to arrive at the real intention of the legislator. Before we proceed to deal with the above--noted contentions it would be useful to reproduce here the provisions of paragraph No. 7 :- "7.-(1) No person who owns or manages a privately managed college --or a privately managed.
School shall--
(a) employ or manage any person for the purpose of college or school, other than a person who was employed or engaged immediately before the fifteenth day of March, 1972 ; or
(b) have as otherwise provided to sub-paragraph (2) or except with the prior per mission of the Provincial Government change the terms and conditions of service of any person in his employment immediately before the fifteenth day of March, 1972.
(2) As from the Ist day of October, 1912, the teachers of all privately managed colleges and privately managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the colleges and schools maintained by Government are entitled Provided that, with the general or special permission of the Provincial Government, any person may be promoted or employed or engaged, on terms and conditions as may be approved by the Provincial Government against a newly created post or a vacancy caused by the retirement or expiry of the stipulated period of employment or termination of service in accordance with the terms and conditions of employment of a person who was employed or engaged before the fifteenth day of March, 1972."
14. The first argument, namely, that the provisions of paragraph Rio. 7(2) apply only to the teachers of such institutions which are still owned or managed privately and not to those which have been nationalised by the Government, is based on the wording of paragraph No. 7. On a cursory reading of the paragraph, as worded, it would emphasise as if it supports this submission. But a more careful study of the paragraph, together with other provisions of M.L.R. 118, and the above- mentioned speech elucidating the Education Policy, shows that this could not possibly have been the intention of the legislator.
From a reading of the above-mentioned speech it is evident that one of the important objects of nationalising private educational institutions was to improve the lot of the teachers employed therein and to bring them at par with the teachers of the Government managed schools and colleges and amongst other things, they were assured the same scale of pay as their counterparts in Government maintained institutions, provided they had equivalent qualifications, experience and seniority. That this was one of the declared objects of the nationalisation is supported by the following portions of the speech of the Education Minister :- "Now, today 1 assure the teachers once again that the benefit of nationalisation would primarily go to them .
"Let me also bring it to the notice of the teachers that it was the pathetic conditions under which they were working in the private institutions which compelled the Government to take the massive step. From Ist of September, 1972, you-- -The teachers of the nationalised colleges are Government servants, entitled to the full prosecution of law with regard to the tenure and terms and conditions of your service "What you have said was that you should be brought at par with your brothers and sisters working in the Government Colleges. We have brought you at par with them In view of what has been said above it is difficult to conceive that paragraph No. 7(2) was intended to guarantee higher pay (equivalent to those of the teachers in Government maintained institutions), only to the teachers o privately owned and managed institutions and deny the same to the teacher of such private institutions as had been nationalised and taken over by the Government because such an interpretation would be contrary to one of the basic objects of the whole exercise. That paragraph No. 7(2) is applicable to the teachers of nationalised institutions is also manifest from the fact that by virtue of paragraph 4 of M. L. R. No. 118 all colleges in the province stood nationalised with effect from Ist September, 1972 and no privately owned or managed college was left. It may be mentioned that much stress was laid by some learned counsel on the words "teachers of all privately managed colleges and privately managed schools" used in sub-para. (2) of paragraph No. 7, to argue that it applied only to teachers of institutions which were still privately managed. But, on considering this question, we are inclined to take the view that these words were used in order to identify) the teachers of nationalised schools and colleges, so as to distinguish them from those 'as. By the Government, by referring to their original) status, just as Evacuee Property was referred to as each (i'. e. As EvacueeProperty), in various sections of the Settlement Laws even after it stood acquired under section 3 of the Displaced Persons (Compensation and rehabilitation, Act, 1958 or section 4 of the Displaced Persons (Land Settlement) Act, 1958, came to be vested in the Central Government ; became a part of the compensation pool and ceased to be Evacuee Property.
While discussing the nature of such (evacuee) property after its having vested in the Central Government, Mr. Justice Anwarul Haq, observed in Maj. Mehtab Khan v.. The Rehabilitation Authority and another PLD1973SC451as follows "In other words, it ceases to be evacuee property from the date of such acquisition although for the purpose of identifying the original it may still be referred to as evacuee property."
As a result of the above discussion we are of the view that the above-1 noted contention, i. e., that the provision of paragraph No. 7(2) applies only to schools and colleges still owned and managed privately is misconceived and hold that it extends a guarantee to the teachers of the taken overt educational institutions.
15. The next and the most crucial question is as to what are the rights guaranteed to the teachers of the nationalised institutions by paragraph No. 7(2). It is manifest from a reading of this paragraph that it guarantees to the teachers of all taken over institutions the same scales of pay, as admissible to the teachers of colleges and schools maintained by the Government provided they have equivalent qualifications, seniority and experience.
Through this provision the Government has carried out one of it promises to the, teachers of the taken-over schools, namely, that they shall be "brought at par with their brothers and sisters working in Government schools and colleges". To discover as to who is the counterpart of an particular teacher of a takenover institution in a similar institution maintained by Government, all the three factors, namely, qualifications, experienced, and seniority have to be compared one after the other ; qualifications with qualification to determine eligibility, experience with similar experience to determine the comparable class or category of the post and seniority, i. e., length of service with the length of service to find out the stage. In the scale' of pay admissible to a teacher in that category. Naturally, the first thing that must be seen is whether a teacher of the nationalised school has the basic academic qualification required for appointment to a particular post in the Government institutions. If not, he must be compared with a teacher of next lower grade or category, for which lower basic academic qualification is required. If, however he has the requisite academic qualifica--tion then the next thing to be compared is his `experience'. In order to determine whether a particular teacher in a nationalised school or college has similar experience, the nature of the experience shall have to be kept in mind. This would depend on the nature of his duties as a teacher. ' It is obvious that the experience of Drawing Master would be similar to that of a Drawing Master in a Government maintained school and the experience of a Physical instructor will have to be compared with that of a Physical Instructor employed in a Government maintained school. Similarly, the experience of vernacular Teachers with Vernacular Teachers, S. E. Ts. With S. E.
Ts., and Headmasters with Headmasters of Government maintained schools. No other meaning can be attached to the word `experience' as used in paragraph No. 7(2). Although it is evident that experience of each class of teachers is different to that of the other class, it may be mentioned here that the experience of Headmasters, who have to perform administrative duties, is entirely different to that of any other category of teachers. Reference in this connection may be made to Ordinance XI of 1962, which provides for the registration of privately managed schools in the Province. All the privately managed schools which have been nationalised under M. L. R. 118 were in fact `recognised' and registered under section 3 of the Ordinance. One of the conditions for registration required to be satisfied for the purpose of registration under section 4(2) read with Part-B of the Schedule is that- "in the case of High or middle school, the Headmaster is recognised as the sole authority in all matters connected with the internal organisa--tion of the institution including class promotion, teachers time table and assignment of work as well as discipline free-ship, grant of leave and prescription of books."
It is, therefore, evident that the kind of administrative experience that is acquired by Headmasters is of a very special nature, which no other category of teachers can claim to possess. Again, in the Government owned high schools the. Headmasters are treated as a separate category from the other teachers and are governed by separate rules of service called "West Pakistan Education Service (lass-11 Administrative Branch) (Men's Section Rules, 1963. Rule 3(2) of these Rules provides that the `Service' governed by these Rules shall comprise of Headmasters of High Schools, District Inspectors of Schools, Deputy Inspectors of Schools. The S. E. Ts., and other Senior Teachers are not included in the service and are governed by a separate set of rules framed in 1963. From what has been observed above we are of the view that while determining the scale of pay, as far as their experience is concerned, the Headmasters of taken over schools can b f compared only with the Headmasters of Schools managed by the Government and other teachers with teachers having similar experience, i. e. doing similar work and performing the same functions in Government- maintained schools (or Colleges as the case may be).
The last factor to be considered while comparing the teachers would be "seniority" which means length of service in the same grade or category. It may be recalled that even in the policy letter dated 22-5-1974, issued by the Government it was stated that "the basis for determining the seniority is the total length of service in the grade". In other words, for determining the pay to which he is entitled under para. 7(2), the seniority of a teacher in a nationalised school can be compared only with the seniority of a teacher in a Government maintained school in the same grade and doing the same job t or performing the same duties or functions, because seniority, for instance, of a Drawing Master, cannot, obviously be compared with the seniority or length 'of service of SETs. Or Headmasters. We therefore, hold that paragraph No. 7(2) ensures that once the three factors in the case of anyparticular teacher in a takenover school are compared and found equal t that of his counterpart in a Government managed institution, then, he shall be entitled to the same pay as the latter. This guarantee cannot naturally be taken away or abridged by any subordinate legislation, e. g., rules relating to their service framed under the relevant statutes.
This does not, however, mean that sub-pare. (2) of para. No. 7, also guarantees the posts which the teachers of privately managed schools an colleges carried on the day of the takeover. In the first place, a plain. Reading of the sub-pare. Clearly shows that it does not give any such assurance to the teachers and secondly, in the nature of things, no particular post can be guaranteed by the Government to any one because the number of posts in any particular grade may not be constant and such posts may not always be available. For example, if one or more of schools or colleges are closed down or one or more of such institutions are merged together to create a bigger institution the number of posts of headmasters, principals and other teachers could obviously be curtailed.
The net result of the above discussion is that the rules in question are validly framed under paragraph No. 13 of M. L. R. -118, and secondly that although the teachers of taken over educational institutions (except those who do not possess the basic qualifications for the post or those who were appointed in contravention of the embargo placed by section 7(1) (a) or those appointed on or after 1-10-1972) are entitled to the same pay as their counterparts in Government maintained institutions in accordance with the principle laid down in paragraph No. 7(2) of M. L. R. 118, but they are not guaranteed any posts under the said provision. Consequently, rule 4 of the Nationalised Schools (Men & Women Section) Teaching Posts Rules, 1974, and rule 5 of the Nationalised Colleges (Men and Women 4 Section) Teaching Posts Rules, 1974, are not ultra vires of Paragraph No. 7(2) of M. L. R. 118, and the contrary viow taken in Fazal Elahi Ejaz and 22/ others v. Government of the Punjab and 13 others PLD 1977 Lah.549is overruled.
With the above observations all the Appeals mentioned in Paragraph No. 1 of this judgment stand disposed of. & e. H.Appeals disposed of accordingly