1. S. A. MAHMOOD (CHAIRMAN).-This is an appeal under sections 4 and 9 of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, whereby Khan Riaz Liaqat, Farooq Ahmad, Mir Qamaruddin, Munawar Din, Sh. Imtiaz Ali Khan, Malik Ghulam Haider, Mohsin Sardar Muhammad, Muhammad Gulzar Bhatti, Gulzar Ahmad Malik, Muhammad Saeed Akhtar and Muhammad Ali Zamir, appellants claim the following reliefs :-
(a) That respondents Nos. 1 and 2 namely the Province of the Punjab and director of Education, Lahore Region may be directed to restore the appellants to their original positions as shown in the seniority list dated 1-5-1960 in the Subordinate Education Service cadre without taking into effect the illegal orders of the Senior Civil Judge, Bahawalpur, which were passed without lawful authority, in view of the provisions of West Pakistan Civil Service (Appellate Tribunals) Ordinance, 1969;
(b) that respondents 1 and 2 be directed to give all benefits to the appellants, which could have accrued to them, bad the p illegal orders by the Senior Civil Judge made on 16-1-1970 not been given effect to, and
(c) any other relief to which the appellants may be found entitled by this Tribunal.
2. The appellants of whom Nos. 1, 8 and 9 were present, were represented before us by Mr. Fazal Karim, Advocate Respondents 1 and 2 were represented by Mr. A. G. Humayuns, Govt. Pleader, Mr. Asghar Ali and Shakoorullah, respondents 3 and 4 were represented by Mr. Ali Ahmad Awan, Advocate and Mr. Chaman Ali Ghauri, respondent No. 5 was represented by Mr. Muhammad Mahmood Ali Bhatti, Advocate.
3. The appellants were members of the Subordinate Education Service on the day of integration i.e. 14-10-1955 in the pay scale of Rs. 130-10 -250. Their pay scales were revised w. e. f. 1-12-1962 to Re 220-15-310/15-400 by an order made in 1963.
4. Mr. Asghar Ali and Mr. Shakoorullah and Chaman Ali Ghauri respondents 3 to 5 were borne on the strength of a Technical School in the pay scale of Rs. 160-10-250-400 in Class III. Their posts were sanctioned by letter No. VII-4/ Exp./845, dated the 24th May 1954 from the Secretary, Finance, Bahawalpur State Government. It was made clear. In this letter that in order to avoid administrative difficulties, the cadre of teachers in the Technical High Schools will be kept separate from general cadre and none of the teachers in the general cadre will have any claim for appointment to these posts. So far as possible, people possessing maximum qualifications should be selected to these posts, viz. the posts of Teachers for Physics, Chemistry, English, Mathematics and Social Studies. On Integration, the teachers of Punjab Province and Bahawalpur State were merged into group---s sub-cadre `C' in accordance with the instructions contained in paragraphs 14, 15 and 16 of the Integration Circular. The question of integration of the three respondents who were placed in a cadre separate from the general cadre of Bahawalpur State became a vexed question after integration. On 28th April 1958, a High Powered Committee met to decide in what grade they should be integrated. The meeting was attended by the Education Secretary the Director, Public Instructions, the Director of Education, Assistant Director, Public Instructions, Assistant Director, Public Instructions (Administration), Assistant Director, Public Instructions (Colleges), Chairman of Board of Secondary Education, Inspector of Schools, Bahawalpur and the Inspectress of Schools, Bahawalpur. In this connection, it was decided to integrate respondents 3 to 5 with teachers of the general cadre whose scale was Rs. 130 -10 -200/ 10-250, though they were allowed to retain their own pay scale.
5. When some teachers under the service of the Central Government were transferred to the Provincial- Government on account of transfer of subjects from the competency of the Central Government to the Provincial Government the pay scale of Rs. 240-10-300/15-345/15-405-20-525 was prescribed for their absorption in the Punjab Province w. e. f. 1-12-1962. On 25th January 1964 a pay fixation party of the office of Accountant-General fixed the three respondents in the pay scale created for and admissible to the employees of the Central Government transferred to the Provincial Government and the three respondents draw their salary in this pay scale from 1-12-1962.
6. When this was discovered by the Accountant-General, recovery of the excess payment over their own pay scale was ordered on 31-5-1966 was they were not considered eligible to the above pay scale. This led the respondents to file a suit on 25th March 1968 in the civil Court. In this suit, the plaintiffs prayed for a declaration that the ordered dated 31-5-1966 was illegal and inoperative, because it amounted to their reduction in rank and further that they were entitled to being fixed in a comparable scale of pay and corresponding seniority. They also prayed for the grant of permanent injunction restraining the defendant from recovery of the pay, which the plaintiffs had received from Government. In this suit, the Province of West Pakistan was the only defendant, and the following issues were framed :-
(1) Was the comparable grade of Rs. 160-10-400 in which the plaintiffs were drawing the pay before integration Rs. 240-10-525? 0. P.
(2) If so, were the plaintiffs entitled to the grade of Rs. 240-10-525? 0. P.
(3) Is the revised pay, scale of Rs. 240-10-525 and 325-20-525 and are they entitled to be placed in the same grade?
(4) Is the order dated 31-5-1966 against law?
(5) Relief.
7. On the question of issue No. 1, the learned Senior Civil Judge came to the conclusion that the comparable scale of the plaintiffs after integration was Rs. 250 -10-355 and not Rs. 130-10-250. He repelled the contention that the plaintiffs were not in selection grade and could not be given that grade. He held that that was the special grade and the Provincial Government could not disturb it and merge it into the ordinary grade of Rs. 130 -10-250. The learned Senior Civil Judge further held the plaintiffs entitled to the scale of Rs. 240-10-300/15-345/15-405/20-525 created for the employees of the Central Government transferred to the, Provincial Government on 25-1-1964 as the corresponding pay scale was the scale of Rs. 160-10-250/15-400. Thus the plaintiffs were found entitled to the pay scale in which grey were fixed by the pay fixation Party, and by way of consequential relief, the Court ordered that the defendants should not recover the pay already paid to them A simple decree for declaration was granted to the plaintiffs with-costs on the 3 of May 1969. As there was an omission on the part of the learned Senior Civil Judge to decide the question of seniority the plaintiffs filed an application under sections 151 and 152,C.P.C. on 29-10- 1969 praying for correction of the decree to include the relief of seniority and also appealed td the District Judge for the grant of that relief. On 6-1-1970 the learned Senior Civil Judge granted the prayer to the plaintiffs made in the application under sections 151, 152, C. P. C. in addition to the declaration granted to the plaintiffs already. The Court further ordered on 6-1-1970 that the plaintiffs were also entitled to be grouped in the matter of seniority and-other problems with the persons, who were in the selection grade of Rs.250-15-350. As a result of the judgment and decree of the Civil Judge; the three Nos. 3-5 were show a senior to the appellants in the senior by list published as on, 23rd September 1970, though in the seniority lists published as on 13th October 1955, 1-5-1960, 1-7-66 and 1-7-1969, the appellants were shown senior to the respondents 3 to 5, do the late senior circulated on 23rd September 1970, respondents were shown senior to the appellants by reasons of their ion in the selection grade, which was a grade higher than, the ordinary scale: The orders of the Senior Civil Judge dated 6-1-1970, and 3-5-1969 are impugned on behalf of the appellants, in view of the exclusion of the jurisdiction of the civil Court in the matter of the- seniority by the provisions of the West Pakistan. Civil Services, (Appellate Tribunals) Ordinance, 1969. It is argued that the, order of the learned Senior Civil Judge being without jurisdiction is void and can be ignored by this Tribunal. It is further, contended that the appellants were entitled to be shown, senior, to the respondents in accordance with the seniority lists published in 1955, 1960, 1965 and 1969 on the basis of continuous officiation in the ordinary scale.
8. In the former State of Bahawalpur, there were three grades in the ordinary scale:
(1) Rs. 180-10-250/10---300.
(2) Rs. 160-10250/15---400 (the scale in which the respondents 2-5 were placed.)
(3) Rs.130---10---200/10---250.
9. We have been told that in the former Punjab Province the teachers posted in the technical schools like respondents 3 to 5 were paid 10 % extra in the ordinary pay scale elf Rs. 130-10/10-250 prevalent in the Punjab, Province. Both in the Bahawalpur State and in the former Punjab Province, there was selection grade in the scale of Rs. 250-15-355. From the three ordinary scales promotions took place to the selection grade, which in consequence was a higher grade. We are told that all the three ordinary scales were treated as separate cadres and promotion to selection grade also remained in separate cadres. In the Bahawalpur State there were even two scales of Selection Grade the old and the new. The new trade was in the pay scale of Rs. 250--15--355. The old selection grade was Rs. 300-15-405.
10. The question which arises for consideration in this case is whether the orders of the learned Senior Civil Judge dated 3-5-1969 and 6-1-1970 were without jurisdiction and therefore ineffective and secondly whether this Tribunal can go behind to declaration by the civil Court that the respondents 3-9 were in the comparable scale after integration of Rs. 250 -10-355 and not Rs. 130-10-250. It is argued on behalf of the appellants on the basis of subsection (9) of the Ordinance that the orders of the learned Senior Civil Judge were without jurisdiction. Sub-- section (3) of section 9 of the West Pakistan Civil Service (Appellate Tribunals) Ordinance, 1969 provided that all suits, appeals or applications regarding matters to which this Ordinance applies pending in any Court shall abate.rd As to the above question, the West Pakistan Civil Services (Appellate Tribunals) Ordinance XXVIII of 1969 came into force on 5-11-1969. Its subsection (3) of section 9 excluded the jurisdiction of civil Courts in matters of seniority by directing abatement of all pending suits, appeals of applications regarding matters to which the Ordinance applied. The question thus arising for determination is whether both the orders of the learned Senior Civil Judge dated 3-5-1969 and 6-1-1970 were without jurisdiction and of no effect, or only the latter order is invalid. The provisions of Ordinance XXVIII of 1969 were not retrospective in operation and the Court of Senior Civil Judge as a Court of general jurisdiction was competent to proceed with all kinds of matters not excluded from its jurisdiction. Since the jurisdic--tion of the Court in pending suits, appeals and applications relating to matters to which the Ordinance applied was excluded by the Ordinance, the civil Court continued to have jurisdiction in the matters of seniority up to 4th November 1969 (as the Ordinance was enforced from 5th November 1969). Therefore, the order of the civil Court dated 3- 5-1969 1s not hit by sub--section (3) of section 9, but the order of 6th January 1970, was so hit, since it related to matters of seniority covered by the Ordinance. We hold in view of subsection (3) of section 9 that as tire application made by the plaintiffs/respondents under section 151/152, C. P. C. related to matters to which the Ordinance applied and was pending in the Court of the Senior Civil Judge, it had to abate and order of the Senior Civil Judge dated 6-1-1970 is without jurisdiction and without legal effect. It can be ignored as if it does not exist as was held in PLD 1965 Lab 239 (sic) and PLD 1969 Lah.1030 (sic).
11. The learned counsel for the appellants further contended that as the plaintiffs/respondents had filed an appeal which was a continuation of the original proceedings and as the appeal was pending when the Ordinance came into force, the effect was that the plaintiffs' suit also abated as a whole, even in respect of matters which did not relate to seniority or matters to which the Ordinance applied. We are unable to accept the argument since the exclusion of jurisdiction under subsection (3) of section 9 is only in respect of matters covered by sections 3, 4 and 7 of Ordinance XXVIII of 1969. These are matters relating purely to orders or lists of seniority. Therefore, the reliefs claimed by the plaintiffs in relation to matters other than seniority were not affected or dusted from the jurisdiction of the civil Court. The appeal by the plaintiffs was with drawn by them after the enforcement of the Ordinance and despite the pendency of the appeal and the application under sections 151 and 152, C. P. C., the order of the civil Court dated 3-5-1969, so far as it went, remained within jurisdiction and was binding on the Punjab Government as is the permanent injunction operating against it.
12. As indicated already Selection Grade in the Bahawalpur State as well as in the former Punjab Province was undoubtedly a scale higher than the ordinary grade in which the plaintiffs/ respondents were before integration. On the face of it, the order of the learned Civil Judge directing that their comparable grade was the selection grade is not correct on the merits and suffers from an error.
13. The number of selection grade posts were 15 % of the total of posts in each grade. The grant of selection grade was not dependent on seniority alone. Each case had to be consider on merit. No person could claim selection grade merely on the B basis of seniority. No Court can direct an authority to grant selection grade as was held in PLD 1954 Dacca 57. Moreover, the West Pakistan Government issued instructions on 16-9-1958 in continuation of the S & GAD's circular dated 25th November 1955 which among, other things regarding grant of selection grade provided :- "It is pointed out that the grant of selection grade either on the basis of group sub-cadre in the existing/old scales or on the basis of integrated seniority/cadre will not affect inter se seniority merely for the reasons that selection grade has been allowed to an officer."
14. Thus grant of selection grade was no longer relevant for purpose of fixing seniority after the integration. It would be difficult to integrate respondents 3-5 in the selection grade when they had not earned it before the integration. This direction ought not to have been given, as selection grade could only be granted on C the assessment of merit by the competent authority.
15. The undoubted position which emerges is that the respondents 3-5 though shown junior in the seniority list as on 13-10-1955; 5-1-1960, 1-7-1965 and 1-7-1969 have been shown senior to the appellants on 23rd September 1970. They had been made senior because of the orders and decree of the civil Court dated 3-5-1969 and 6-1-1970. It has been held that the order of the civil Court dated 6-1-1970 being without jurisdiction is void and can be ignored, Therefore, the seniority of the respondents and others has to be determined only in the light of the decree of Senior Civil Judge dated 3-5-1969. The decree as originally passed by the civil Court on 3-5-1969 was as follows :-- "It is ordered that the plaintiffs are granted the declaration that they are entitled to the pay scale of Rs. 240-10-300/15-345/15--405/20-525, the corresponding scale of Rs. 160-10-250/15-400. They are also granted the consequential relief that the defendant would not recover the amounts of pay already paid to them."
16. The above decree is directed to the relief of permanent injunction claimed by the respondents that they were entitled to the revised pay scale and the Government be debarred from recovering the salary paid to them. It is silent on the question of what the comparable grade of respondents was.
17. That matter has, however, been decided by the Senior Civil Judge under issue No. 1. The learned Judge held that the comparable scale of the plaintiffs after integration was Rs. 250 -10-355 and not Rs. 130-10-250.
18. A way out is suggested by which it is said the hardship which has resulted to the appellants can be removed. As the three respondents were placed in a separate cadre in the State of Bahawalpur they could be kept in a separate cadre. It is suggested that there need not be-integration of the respondents with the appellants and the Government may well consider whether they be not kept in a distinct cadre separate from the general of cadre.
19. We hold that the order of the civil Court dated 6th January 1970, is made without jurisdiction and is of no legal effect and as such seniority of the appellants-qua-respondents has to be determined by the Government by ignoring that order. It is for the Government to determine whether they should at all be integrated with the general cadre, since they were created as a separate cadre distinct from the general cadre.
20. Since the order of seniority An the impugned seniority list was made in implementation of the order of civil Court dated 6-1-1970, we set aside the order of seniority so determined and published on the 23rd September 1970, and direct that it shall be re-determined according to rules in the light of what we have said above.