1. ' MUNAWAR ALI KHAN (CHAIRMAN).--By this appeal, the appellant Syed Shujaat Ali, who is Headmaster of High School, has challenged the seniority list of the Headmasters (BS-17)of Nationalized High Schools of Hyderabad Region issued on 14th May, 1987 in relation to the seniority position assigned to him in the said seniority list. Although he claims to be senior to all the private respondents mentioned in his memo of appeal, yet his name appears below their names in the impugned seniority list. In brief the appellant's case is that prior to appearance of the impugned seniority list several seniority lists were issued from time to time. The tentative seniority list issued by Secretary Education, Government of Sind on 1-1-1980 was never finalized even though the appellant had filed his objections against the said list. Thereafter, the Director of School Education, Hyderabad Region, issued Provisional Seniority list of Headmasters of Nationalized Schools on 27-1- 1983. The appellant filed objections also against this list but no decision with regard to disposal of his objection was ever communicated to him. Once again the Government of Sind issued third provisional seniority list dated 7-2-1985 inviting objections from the teachers concerned. The appellant filed objections against the said list and waited for decision thereon but with no result. In this way no seniority list was legally finalized in the light of objections made against the same.
2. ' On the contrary selection grade (BS-18) was awarded to a number of Headmasters, on the basis of provisional seniority list. The appellant went in appeal before the Chief Secretary against the provisional seniority list as well as against the illegal grant of selection grade to some Headmasters. However, final seniority list which is ditto copy of the provisional seniority list, dated 7th February, 1985 was issued by the Secretary, Education Department on 14th May, 1987. The appellant preferred departmental appeal against the said seniority list on 8-7-1987 and after waiting for a period of 90 days, he filed the present appeal.
3. ' We heard the arguments addressed at the bar and also went through relevant written material available on record.
4. ' The appellant's prayer is that in the impugned seniority list he may be placed above the names of the private respondents shown at S.Nos. 3 to 14 in the memo. Of appeal. The learned counsel for the appellant did not press the appeal against five of the said respondents as respondents Muhammad Hussan Bozdar, Ahmad Shah, Fazaluddin have retired from service and respondents Abdul Ghani and Ghulam Nabi have expired. Thus, only seven respondents: namely Shabib Nusrat (S.No, 6), Ghulam Sarwar (S.No, 7) Muhammad Shabbat (S. No, 8). Rafiq Ahmad (S.No, 9), Khamiso Khan (S.No, 11), Mohiuddin (S.No, 13) and Shahzad Khan (S. No, 14) are left in the field to contest the appellant's claim. It is an admitted position that the appellant as well as the aforesaid seven respondents were teachers in the schools which were nationalized under M.L.R. 118 w,e,f, 1st clobber, 1972. As provided in sub-para. (2) of para. 7 of the said M.L.R., the archers of nationalized schools, subject to same limitations become entitled to e same scales of pay as were admissible to the teachers of the schools run by the Government. However, there is no similar provision in the said M.L.R. For determining the inter se seniority of the teachers of the nationalized schools. Nonetheless the Government concerned is empowered by para. 13 of the M.L.R. 118 to make rules for carrying out the purposes of the said Regulation. It was conceded at the bar that no rules have been framed under the said M.L.R. For determining inter se seniority of the teachers of nationalized schools.
5. However, the learned Government counsel relied upon the policy decisions taken in the high level meeting on 10th September, 1972, which was presided by the then Federal Education Minister and was attended amongst others by Provincial Education and Finance Ministers, and delegates of Nationalized Colleges. In this connection he referred to a copy of the minutes of the meeting which is enclosed with the written statement filed on behalf of the official respondents. It is revealed by the minutes that inter alia, the following decisions which are pertinent for disposal of this appeal, were taken in the said high level meeting: "(a) .......................................................
6. ' A separate closed cadre of teachers of Nationalized Institutions would be formed.
7. (b)..................................................................................................................
(c) Seniority of teachers of Nationalized Institutions would be prepared in view of the total length of service in private colleges rendered by each teacher.
(d) The teachers of Nationalized Institutions would be promoted to the superior posts of their cadre on suitability-cum-seniority basis from amongst themselves.
8. (e)..... ............................................................................................................
(f) In combined seniority, the teachers of Nationalized Institutions would be placed at the bottom of each group i,e,, Professors, Assistant Professors and Lecturers 11 ' In absence of the rules, the above decisions would, of course, serve as the requisite guidlines. This is reiterated even in the written statement filed on behalf of the Provincial Government as under: "As a result of nationalization of the privately managed schools numerous types of problems, including that of administrative nature crept in, were subsequently got resolved in the light of the decisions taken by the High Powered Committee in its meeting held on 10-9-1972 under the Chairmanship of the then Education Minister, Government of Pakistan, Islamabad."
9. ' The decisions of the High Powered Committee contained in the minutes hereinabove indicate as if they were taken in respect of Nationalized Colleges. However, in course of the arguments the learned Government counsel who was assisted by Departmental Representative. Mr. Mohiuddin Kazi, (Officer-on- Special Duty) informed us that the said decisions were also made applicable t the Nationalized Schools. Precisely for this reason, while filing written statement on behalf of the Government a copy of the said decisions was also enclosed and as such it is available on record.
10. Clause (c) of the Decision No, 3 which deals with seniority clearly states that seniority of teachers of nationalized institutions would be prepared in view of their total length of service in the said institutions. The appellant's grievance as highlighted in course of the arguments was that although the rule of length of service was followed in compiling the seniority list of teachers of the Nationalized schools in Karachi Region, the impugned seniority list which relates to Hyderabad Region has been prepared in flagrant violation of the said rule. The same objection appears in Ground No, 2 in the memo. Of appeal. In reply to this contention the plea taken by the official respondents in their written statements is as under: "That the contents of paras. 1 and 2 are not correct. Every incumbent is entitled to get the position in the seniority on the basis of seniority list as High School Teacher and the date of passing B.Ed. Any other position claimed by the appellant being not supported by the aforesaid policy is inadmissible and hence not enforceable."
11. ' We are not satisfied with the above reply as it appears to us to be evasive. On one hand the appellant's allegation has been denied and on the other hand it has been conceded that the date of passing B. Ed has also been taken into consideration for assigning the seniority position to the appellant. However, the policy followed by the Provincial Government in determination of appellant's seniority vis-a-vis seniority of other teachers of nationalized schools has been further elaborated in the 'Brief History' of the case given in the aforesaid written statement. The relevant para. Reads as under: "Reverting of the present case of the appellant, it is stated that since the Government did not accept the position assigned to the Headmasters of the Nationalized Cadre by the previous management and only their pay was protected the appellant namely Syed Shujaat Ali Jafferi, and other Headmasters of the Nationalized Cadre were DE categorized as Senior English Teachers (now High School Teachers) in the first instance and a combinded Seniority of the Senior English Teachers as well as the existing Headmasters was prepared and their postings to the post of Headmasters in the Nationalized Cadre, were ordered on the basis of seniority. In this connection it is however placed on the record that the. Seniority of Senior English Teachers (now High School Teachers) for the purpose of promotion to the Higher post i,e, Headmaster's post, is determined on the basis of (i) date of their appointment in the lower grade as Senior English Teachers (ii) passing of B.T./B. Ed. Examination. The same formula/pattern has also been adopted in case of Senior English Teachers (now High School Teachers) (Government Cadre) for their promotion to the post of Headmasters/Headmistress, as the case may be. Needless to say that the same formula was adopted by the Government of the Punjab. The contents of para. 4(i) of the Punjab Nationalised Schools (Men and Women Section) Teaching Post Rules, are reproduced verbatim as under:- 'A person holding the post of Headmaster or Headmistress of a High School at the time of nationalisation of the school, possessing the qualification prescribed for the post of Senior English Teachers shall be deemed to have been appointed as Senior English Teacher and the post of Head Master or Head Mistresses shall be filled in accordance with these rules.'
12. ' It would appear that the policy adopted by the Provincial Government in extermination of seniority of the teachers of Nationalized schools was not strictly he same as was decided upon by the High Powered Committee in its meeting on 0-9-1972. The said Committee had obviously taken decisions at Federal level.
13. ' He question would arise if the Provincial Government was competent to make any modification in the decisions of the said High Powered Committee. Since `Education' was a provincial subject, it was entirely within the powers of the Provincial Government to accept the decisions of the aforesaid Federal Committee in toto or adopt them subject to any modification made at the provincial level. Therefore, if the Provincial Government followed the decision of the above High Powered Federal Committee with regard to determination of seniority of teachers of nationalized schools after making suitable modifications herein, as have been reproduced above, no illegality has been committed by the said Government. It is true that the formula followed by the Government in preparing the impugned seniority list was not formulized by way of bringing it in the shape of rules. In our opinion such omission would not render the whole exercise of preparation of impugned seniority list as null and void. We are satisfied that some set principles were kept in view in compilation of the seniority list under fire.
14. ' No doubt the basic law namely M.L.R. 118 under which the privately managed schools were nationalized protected only the pay of the teachers of the nationalized schools. Therefore, the question of the preparation of the impugned seniority list in violation of the said law did not arise.
15. ' The impugned seniority list reflects the seniority position of the Headmasters of High Schools (BS- 17). The first question that arises for our consideration is on what dates the appellant as well as aforesaid seven private respondents were awarded that scale of pay. As per column 8 of the impugned seniority list, like appellant, the respondents, Shabib Nusrat, Rafiq Ahmed, Mohiuddin and Muhammad Shahzad were allowed the above scale of pay w,e,f, 1-10-1972. However, respondents Ghulam Sarwar, Muhammad Shabrati, and Khamiso Khan are shown to have been inducted in that scale of pay on 1-5-1973, 30-10-1974 and 31-10-1974 respectively. They were allowed BS-17 by Education Department's Notification No, SO(N)-10(1)/73, dated 6th May, 1974, the operative part of which reads as under:-- "In pursuance of paragraph 7(2) of MLR 118, the Governor of Sind is pleased to award the scale of Rs,450-50-1,000 to the teachers of Nationalized Schools, Hyderabad Region from 1st October, 1972 or the date of actual resuming whichever is later."
16. ' The above Notification makes it clear that even above three respondents were allowed BS-17 w,e,f, 1st October, 1972 the same date from which the appellant and other four private respondents got the benefit of that scale of pay. Obviously the said three respondents resumed their duties as Headmasters on later dates and that is why the dates other than 1st October, 1972 appear against their names in the impugned seniority list. It would be interesting to note that the language used in the notification by which appellant was brought in BS-17 is materially different from that used in the notification reproduced above. Appellant and some other teachers were awarded BS-17 by Notification N S.O.(N)-10(1)/74 (Male), dated 5th March, 1975. From this notification t words "or the date of actual resuming whichever is later" are conspicuous missing. Had these words appeared in the notification relating to promotion the appellant, may be there would have been different dates (being the dates of actual resumption of duties) even against the names of appellant and ocher teachers promoted by the said notification in column 8 of the impugned seniority list. It is common knowledge that when any notification of initial appointment or promotion is issued, invariably the appointed or, as the case may be the promote does not resume charge of his new assignment on the same date of notification. In some cases they resume duties after a long gap. But the seniority is reckoned from the date of appointment/promotion and not from resumption of duties.
17. ' Therefore, the argument advanced on behalf of the appellant is absolutely untenable that the seniority of the respondents who resumed higher duties on later dates should be reckoned from the said dates. Accordingly we have no doubt in our mind that the appellant as well as all the seven respondents were inducted in BS-17 from the same date i,e, 1st October, 1972.
18. ' In view of above findings, they would retain their inter se seniority of the lower cadre of Senior English Teachers, in the cadre of Headmasters. As stated above, as per formula adopted by the Government for determining the seniority of the teachers of nationalized schools in lower cadre, the teachers were DE categorized in the first instance as Senior English Teachers (later known as High School Teachers) irrespective of whether some of them including the appellant were serving as Headmasters. After such DE categorization, their seniority was fixed on the basis of length of service and date of acquiring teaching degree namely B.T./B.Ed. The length of service and the date of acquisition of the teaching degree of the appellant as well as the seven respondents have been admittedly mentioned in columns 5 and 6 of the impugned seniority list. For the sake of convenience the same are reproduced in the form of table below:-- S.No.Name of Date of appoint-date of Teacherment in lower passing grade BT/B.E&d 2.Shujaat Ali (appellant)02-04-19561967 6.Shabib Nusrat (Respondent)29-01-19551961 7.Ghulam Sarwar (Respondent)05-07-19521961 8.Muhammad Shabrati (Respondent)18-07-19531962 9.Rafiq Ahmad (Respondent)13-11-19581962 11.Khamiso Khan (Respondent)06-08-19551962 13Mohiuddin (Respondent)21-01-19641966 14Shahzad Khan06-06-19561967 ' From the above table it would appear that respondents Shahbib Nusrat, Ghulam Sarwar, Muhammad Shabrati, Khamiso Khan not only entered service flier than the appellant but also they acquired teaching degree before the plant got the same. Thus there is no doubt that the said four respondents were senior to the appellant even as High School Teachers. As for the remaining eel respondents namely Rafiq Ahmad, Mohiuddin and Shahzad, it would be noticed that the date of their entry in service is later than that of the appellant, Hough two of them namely Rafiq Ahmad and Mohiuddin cleared the examination of teaching degree earlier than the appellant. In our opinion the aspic factor in determining seniority is the date of continuous officiating. The acquisition of the teaching degree was seemingly made compulsory only to qualify for promotion as Headmaster. Since the appellant acquired the said degree before the promotion of respondents Rafiq Ahmed and Mohiuddin as Headmasters, earlier acquisition of teaching degree by these two respondents cannot be permitted to affect the appellant's seniority vis-a-vis their seniority. The third respondent Shahzad Khan got the teaching degree in the same year of 1967 in which the appellant had got the same. Accordingly the said three respondents cannot be made senior to the appellant both in lower cadre of High School Teachers as well as in higher cadre of Headmasters.
19. ' The upshot of the above discussion is that we hold the appellant senior to respondents Rafiq Ahmad, Mohiuddin and Shahzad Khan in the cadre of Headmasters and therefore he will be placed above the said respondents in the impugned seniority list. Accordingly the appellant's appeal is partly allowed with no order as to costs.