' SHAFIUR RAHMAN, J.--Leave to appeal was granted under Article 212(3) of the. Constitution to the seventeen appellants who were all formerly employed in the ministerial establishment concerned with the Primary Education, controlled and managed by the Local Councils.
2. The specific question of law of public importance arising in the case is whether they were entitled, as advised by the Services, General Administration and Information Department vide letter dated 20th Mav, 1979, to count their seniority in each grade from the date of continuous officiation in the respective grades in the combined seniority list of the Provincialized ministerial staff merged into the Government Education Department.
3. All the appellants were employed in ministerial office concerned with the Primary Education, controlled and looked after by the Local Councils. In the year 1962, West Pakistan Primary Education Ordinance (hereinafter referred to as the Ordinance) was promulgated which was amended by West Pakistan Ordinance No,XXIII of 1964. The effect of these Ordinances, was that the management and control of the Primary Education was taken over by the Provincial Government from the Local Councils alongwith the staff and the employees who were to he provided as from 1- 7-1962 the terms and conditions as were available to Government servants.
4. In the year 1974 a seniority list of the ministerial staff, both the taken over and the Government's own, was published in which the appellants were shown junior as a class to those who were already in Government service on 1-7-1962. The induction of the appellants in the seniority list, as also in the Government service, was taken to be as from 1-7-1962 and no credit was given to them for the service rendered by them earlier to that date. In 1979, the Education Department communicated an advice, of the Government/Services, General Administration and Information Department that the benefit of continuous officiation be given to the category to which the appellants belonged. The next seniority list prepared, reflected this position and the appellants were shown senior to the respondents. The respondents challenged the seniority list before the Tribunal and succeeded. The Tribunal held that the appellants would be considered to have joined the Education Department since the date of their merger i.e, 1-7-1962 and they would be entitled to seniority in the corresponding grade/cadre as from that date. This aggrieved the appellants.
5. Mr. Mushtaq Masood, Advocate, the learned counsel for the Appellants contended that by section 6(b) of the Ordinance as amended the other staff employed by a local Council in connection with the Primary Education stood transferred for service to and employment in Government on the same terms and conditions as are applicable from time to time to teachers and staff of corresponding categories in Government service. This clearly shows that suph staff was to integrate with their corresponding categories with all the benefits including the terms and conditions of service as are applicable to them. The appellants were, therefore, entitled to avail of the benefit of the prior service rendered by them in a particular category or class. This, according to the learned counsel, was made abundantly clear when in 1979 the Government in the concerned department conveyed the decision on this controversial question by clearly indicating that "seniority is to be determined in each grade from the date of continuous officiating in the respective grades". The Seniority List so prepared correctly reflected the decision and no exception or objection could be taken to it. This was notwithstanding the fact that the appellants formally became Government employees on 1-7-1962. He also objected to the competence of the appeal before the Tribunal on the ground that no representation or appeal had been filed before the competent authority and having not exhausted the departmental remedies, they could not approach the Tribunal for relief in the matter.
6. The exact statutory provision on which the claim of the appellants is based provided as follows:- - "All teachers and other staff employed by a local council in connection with Primary Education shall stand transferred for service to and be employed by Government on the same, terms and conditions as are applicable from time to time to teachers and staff of corresponding categories in Government service."
On the strength of this, the employment of the appellants with the Government commenced on the enforcement of the provision that is from 1-7-1962. There is nothing in this Ordinance which may entitle them to claim the benefit of earlier service rendered as Government service. Normally, the service rendered with other employer could not count for any purpose as Government service unless there was a specific provision made by the competent authority.
7. The first legal instrument on the subject placed on record is of January 1968 which 'dealt with the uniformity of procedure with regard to the appointments, transfer etc. Etc. Of the employees of Provincialized Institutions with those in Government service ab initio. What was resolved was as hereunder:-- "In accordance with subsection (b) of Section 6 of the West Pakistan Primary Education Ordinance, 1962, all the teachers and staff of the Local Councils have now been employed by Govt. With effect from the date of promulgation of the said Ordinance i.e, 1-7-1962, and they have become Government Servants with effect from the same date. Their seniority will, therefore, be determined from the date of provincialization in their respective cadres.
' You are, therefore, requested to please prepare integrated Seniority Lists of all officials/officers of your respective Regions and circulate them among all concerned to have their objections, if any.
' This measure has been found necessary with a view to achieve uniformity of treatment and administrative procedure relating to personnel in Government employment ab initio and the staff provincialized under the Primary Education Ordinance. If any further clarification is needed, a reference may be made to the Education Department quoting actual instances."
The second legal instrument placed on record is an Order of the Governor dated 24-9-1977 in terms hereunder:-- "In supersession of all previous instructions on the subject the Governor of the Punjab on the recommendations of the Committee set up by the Education Department vide Memo. Of even number dated 17-12-1976 and in consultation with the Services General Administration and Information bepartment is pleased to order the merger of all categories of the Ministerial staff of the Provincialized Cadre in the Education Department, Lahore Division which was taken over under the West Pakistan Primary Education Ordinance, 1962 and the Local Councils High Schools (Taking Over) Ordinance, 1970 with the corresponding categories of the Ministerial Staff of the Regular Cadre with effect from the dates of promulgation of the said Ordinances as has been done in other Divisions of the Province.
2. The Governor of Punjab is further pleased to order that the merger of all categories of the Ministerial Staff of the Provincialized Cadres with the corresponding categories of the Ministerial Staff of the regular cadre should be completed in accordance with the aforesaid policy in other Divisions of the Province as well."
' The third legal instrument, the one on which the Appellants rely, is of 20th May, 1979, and it reads as hereunder:-- "The case was referred to the Services General Administration and Information Department and that Department has advised that the seniority is to be determined in each grade from the date of continuous officiating in the respective grades while preparing the combined seniority list of the provincialized ministerial staff merged into the Government Education Department.
3. You are, therefore, requested to finalize the combined seniority list immediately and decide all the pending cases of promotions under intimation to this Department within a fortnight."
' Now the question is whether the conferring of seniority on the appellants by giving them the benefit of continuous officiation in the grade is in conformity with the law on the subject or has it been competently ordered.
8. The Ordinance as amended, makes no provision for conferring seniority on the basis of continuous officiation in the grade. The Governor who was the competent authority has not done so and in fact the first two instructions and the decisions reproduced above give a clear indication to the contrary. In this background of law and other legal instruments, the advice of the Services, General Administration and Information Department communicated on 20th May, 1979 could not prevail. The mere opinion or advice of the Services, General Administration and Information Department was not sufficient to annul or modify a decision of the Government taken by the Governor or in the name of the Government. Seniority being matter not protected, the benefit of continuous officiation could not be extended to the appellants. The decision of the Tribunal is correct on merits.
9. As regards the preliminary objection with regard to the competence of the Appeal before the Tribunal, we find that it has not been specifically dealt with by the Tribunal. However, we find that a representation was in fact filed but was addressed to the Director. The contention is that the Director had finalized the seniority list and he could not be the recipient of the representation as well. It appears from the documents filed that the seniority list was circulated under the signatures of Deputy Director of Education acting in the matter for Director of Education. In the circumstances, the representation was addressed to the Officer higher than the Officer circulating the impugned list. Even otherwise, we find that the impugned seniority list purported to give effect to the decision of the Government itself. This technical objection has no great merit. The Director not only entertained the representation but also proceeded to reject it.
' The Appeal is found without merit and is dismissed with no order as to costs.