1. MUNAWAR ALI KHAN (CHAIRMAN).--This appeal is directed against the order of Additional Director (Women) Hyderabad Region, dated 3-2-1985, turning down the prayer of appellant, Mrs. Farida Khalid, for allowing her H.S.T. Pay scale (Rs.350-25-475-30-750) with effect from 1-10-1972. She preferred departmental appeal from the said order and waited for the statutory period of 90 days, before approaching this Tribunal for the desired relief.
2. The factual background of the appellant's case is that she was employed as Headmistress in the K.G. School Sanghar, when the said school was taken over under M.L.R. 118, with effect from Ist October, 1972. The last pay drawn by the appellant for the month of September, 1972 was Rs.565 in the pay scale of Rs.35b-35-525/40-925. She was M.A., B.Ed. At the time of joining the said privately- managed school and she had subsequently improved her professional qualifications and had become M.A., M . Ed. The appellant has complained that in spite of the protection provided to the teachers of privately-managed schools under para. 7(2) of M.L.R. 118, her pay after nationalisation of the school in which she was working as Headmistress, was fixed at Rs.275 which was ultimately revised on representations and she was allowed Rs.515 as against Rs.565 she was drawing at the time of taking over the privately-managed schools. Being dissatisfied with the above allegedly wrong fixation of her pay, the appellant lodged protest to the Directorate concerned as well as to the Education Department. After a good deal of correspondence between Education Department and Finance Department, the appellant's request for fixing her pay in higher pay scale was turned down as stated above. In the present appeal the appellant has made the following prayers: "The appellant, therefore, prays that the Hon'ble Tribunal may be pleased to set aside the order, dated 3-2-1985, herein appealed against, and direct/order that appellant's pay be fixed in the pay scale equated with the pay scale of Rs.350-35-525/40-925 or be allowed H.S.T.'s pay scale with effect from 1-10-1972, with all the consequential and back benefits arising therefrom, including payment of difference of pay and allowances, and awarding costs of the appeal to the appellants."
3. The learned counsel for the parties Mr. Manzoor Ali Khan for the appellant and Mr. Abdul Ghafoor Mangi, A.A. -G. For the respondents were heard at great length and with their help we also went through all the documents relevant for disposal of the appeal.
4. It is an admitted position that the K.G. School, Sanghar where the appellant was working as Headmistress was taken over under M.L.R. 118 as a Primary Schools. This finds support from the Government Notification bearing No. DD(P&F)-1(8)/72, dated 30th September, 1972. The K.G. Primary School, Sanghar appears at S. No. 101 of Middle Schools/Primary School in Annexure-I to the above notification. The learned counsel for the appellant, however, submitted that before the said school was nationalised, its status was raised to that of Middle School and as such it should be treated at par with that category of school for the purpose of deciding the appellant's case for her salary. On careful perusal of the Government Notification we find that the schools taken over by the Government fell within three categories; namely, High Schools, Middle Schools and Primary Schools.
5. The school under consideration finds mention in the category of Primary Schools. If the management of the said school thought that it was wrongly taken over as Primary School, they should have taken timely steps to have the error rectified. In absence of such action we cannot by any stretch of imagination treat it as Middle School for the purpose of the appellant's case.
6. Accordingly we proceed to consider the case of the appellant on the premise that she was working as Headmistress in the Privately--Managed Primary School when that school was taken over.
7. As disclosed in the Letter No. S.O.(E-II) MLA-25/1978, dated April 15, 1978 of Government of Sind, Education Department, addressed to the appellant, the pay of the appellant was fixed at Rs.515 by Accountant-General Sind, allowing her the benefit of pay scale of Rs.150-257 meant for teachers of Government Primary Schools. Her pay was subsequently revised and she was given NPS-5 (Rs.165- 315) in 1974. The argument of the learned counsel for the appellant was that such fixation of the appellant's pay was not in consonance with the requirements of M.L.R.
118. According to him, in view of her qualifications, seniority and experience she was entitled to get that scale of pay which was equivalent to the pay scale in which she was drawing her pay before nationalization of Privately Managed School. Elaborating his argument further the learned counsel submitted that the appellant was entitled to revised pay scale NPS-14 (Rs.350-25-475-30-750) which alone could be equated with the pay scale enjoyed by her in the privately-managed school. He further submitted that Mrs. Zarina Das of St. Mary School, Sukkur was allowed the benefit of H.S.T. Pay scale from the date of nationalisation although her case was similar to that of the appellant. He also argued that in any case the appellant was entitled to get not less than Rs.565 the last pay drawn by her in the privately-managed school. In support of his arguments the learned counsel relied upon the precedent case of the Province of Punjab v. Bashir Ahmad Bukhari PLD 1982 SC 27.
8. "As from the Ist day of October, 1972 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."
9. It appears from the above provision of law, that the teachers of privately-managed schools were to be given the same pay scales to which their counterparts of Government schools with equivalent qualifications, seniority and experience, were entitled. Keeping this requirement in view we have to see what scale of pay was admissible to the appellant. Since she was Headmistress in primary school at the time of the takeover, her case was to be compared for the purpose of fixation of her pay with the teacher, rather Headmistress, with her qualifications etc. Working in Government Primary School. As has been clarified in the letter of Education Department referred to above, her pay was actually fixed on the basis of her comparison with teachers of Government Primary Schools. This is not disputed even by the appellant herself. It would appear that her pay was ultimately fixed at Rs.515 which amount was far in excess of the maximum limit of pay scale admissible to primary teachers of Government Schools. This was obviously done to ensure a protected pay for her.
10. There is no basis for the argument that in view of her high qualifications the appellant was entitled to H.S.T. Pay scale equivalent to the pay scale she was enjoying immediately before the nationalization. As pointed out above M.L.R. 118 entitled her to pay scale which teachers in Government schools with equivalent qualifications, experience and seniority were enjoying. In other words the pay scale, the appellant was having in the privately-managed school was not guaranteed to her A by the said M.L.R. Therefore, the question of giving her the scale of pay equivalent to that she was enjoying before the nationalization of the privately-managed schools did not arise. According to M.L.R. 118, the appropriate pay-scale to Which the appellant was entitled could be identified by comparing her qualifications, experience and seniority with those of her counter-parts in Government Schools. When the said M.L.R. Speaks of qualifications, it means eligibility for the post held by the appellant. The word experience used in the above M.L.R., can be construed as the experience of the duties and functions entrusted to her. Lastly the word seniority specified in the said M.L.R. Obviously points to length of service put in by the appellant in a particular job. Thus all these factors clearly indicate that necessary comparison of appellant's qualifications, experience and seniority is required to be made with those of teachers who come from similar institutions namely Government Primary Schools.
11. Remuneration is paid for the duties that one is called upon to perform, Since the appellant was working as teacher in the Primary School before nationalization, she was entitled to the scale of pay admissible to primary teachers in Government schools. Merely because she was highly qualified; she could not insist upon higher pay scale meant for teachers Working in High Schools.
12. Sometimes it so happens that a highly qualified person is compelled to accept lower job. In that case such person would be entitled to the pay prescribed for the post and not in accordance with that person's qualifications. Therefore if the appellant despite her 4tielifications chose to serve in primary school where she Wag allowed higher salary, that by itself would not provide her ground for insisting for similar higher pay in Government school.
13. It may be reiterated that M.L.R. 118 speaks of ensuring particular pay-scale and not the personal pay. In the laws providing for transfer of certain employees from she institution to another on permanent basis, it is generally specified that the emoluments of such employees shall not be varied to their disadvantage in consequence of their transfer. However, no such provision is made in M.L.R. 118: Had it been so provided, the appellant could claim the pay and scale of pay she was enjoying in the privately-managed school. In our opinion since the appellant's pay has been fixed in accordance with the pay scale admissible to her counterparts in the Government Primary School the requirements of M.L.R. 118 have been complied with and the appellant should have no grievance on this account.
14. We are also of the view that the appellant could not claim the benefit of higher scale even on the ground that it has been allowed in a similar case of Mrs. Zarina Das. The respondents' reply in this connection is that, the case of Mrs. Zarina is already engaging the attention of the authorities. Even otherwise if Mrs. Zarina Das has been given higher scale through oversight the appellant cannot be given the same benefit on that ground, because two wrongs cannot make one right.
15. As for the authority relied upon by the learned counsel for the appellant we find that the views expressed by their Lordships of the Supreme Court as regards the interpretation of paragraph No. 7(2) of M.L.R. 118 tally with our above views. They do not support the appellant's case. The relevant observations made by the Hon'ble Supreme Court in the above-reported case are as under:-- "To discover as to who is the counter-part of any particular teacher of a taken over institution in a similar institution maintained by Government, all the three factors, namely, qualifications, experience and seniority have to be compared one after the other qualifications with qualifications 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 qualification 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)................ .......................... 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 nationalized school can be compared to a teacher in a Government maintained school in the same grade and doing the same job 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 S.E.Ts. Or Headmasters. We, therefore, hold that paragraph No.7(2) ensures that once the three factors in the case of any particular teacher in a takenover school are compared and found equal to that of his counterpart in a Government-managed institution, then, he shall be entitled to the same pay as the latter."
16. It would appear from the above authority that for determining the scale of pay to which the appellant would be entitled, following the nationalization of the privately-managed schools, she would be compared with the teachers working in similar Government school namely primary school in respect of qualification, seniority and experience. In fact the appellant has no grievance on that account. She does not complain that her qualification, seniority and experience have not been compared with those of her counterparts working in Government Primary Schools. As has been stated above she has even been allowed the pay far in excess of the maximum limit of the scale of pay admissible to the teachers of Government Primary Schools. Her demand, however, is that in view of her high qualifications and the scale of pay she was enjoying in privately-managed school she was comparable with the teachers working in Government High Schools and, therefore, she should have been bracketed with them for the purpose of determining her scale of pay, We regret we cannot accept her such claim in view of the above Supreme Court authority. According to the said authority, Drawing Masters of privately-managed schools are to be compared with Drawing Masters of Government Schools, Physical Instructors of privately-managed schools are to be compared with Physical Instructors of Government Schools. Similarly Vernacular Teachers of privately-managed schools are to be compared with Vernacular Teachers of Government Schools.
17. Consequently, the appellant who was holding the post of Headmistress of Primary School was to be compared with Headmistresses of Government Primary Schools. Since the pay has been fixed on the basis of such comparison, the appeal is without substance. Accordingly it is dismissed.
18. M. Y.H./94/Lb/S