JUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).-Aggrieved by the Seniority list of Head Masters, Sub-divisional Education Officers, and Deputy Education Officers (BS-17), issued under Education Department's No: S.O. (E-1) 4-33(Misc)/89, dated 20th March 1989, Mr. Shakilur Rehman, Deputy Education Officer has come up in the present appeal.
2. Briefly stated, the appellant's case is that following his selection by the Selection Board, he was appointed as Head Master, (Junior Class I) of the Dist: Council High School, Model Colony, Karachi on 20.4.1970. He was subsequently confirmed in that post from the said date vide office order dated 28th October, 1972, of the Administrator People's District Council Karachi. In pursuance of subsection (3) of Section 1 of the West Pakistan Local Councils High School (Taking over) Ordinance 1970 (hereinafter referred as the said Ordinance) the Education Department, Government of Sind issued Notification No: S.O. (P.E) 10/51-71 dated 30th September, 1972, whereby the provisions other than sections 1 and 2 of the said Ordinance came into force in the whole of the Sind Province.
Consequently all the High Schools maintained by the Local Councils including the High School in which the appellant was serving, came under the control of the Provincial Government and all teachers including the heads of the schools and other staff of the said schools were transferred for service to and be employed by the Government on the same terms and conditions as were applicable from the to the to the teachers and staff in Government service. Thereafter the appellant was not only allowed same pay scale of Rs. 450-50-1000 as enjoyed by his counter parts in Government High Schools, but was also invested with powers of drawing and disbursing officer of his school. It was for the first the after his services were transferred to the Government, that seniority list of Head Masters, Sub-divisional Education Officers and Deputy Education Officers (BS- 17) was issued by the Education Department's notification dated 20.3.1989. However the appellant's name was not included in the said seniority list. In the meantime due to non- determination of his seniority vis-a-vis his counter parts in Government service the appellant had already suffered in as much as that he had been superseded by his juniors both at the the of grant of Selection Grade and regular promotion to higher post (BS-18). His representations made from the to the in this regard went un-headed, though his case was fully supported by the Director of School Education, Karachi Region. The appellant challenged the above seniority list in his departmental appeal dated 20.1.1990 filed before the Chief Secretary. As no response was made at the lapse of 90 day's period from the filling of the appeal, the appellant was constrail to appreach this Tribunal by the present appeal filed on 17.5.1990.
We heard the arguments of Mr. Manzoor Ali Khan for the appellant and Mr. Hayat Qureshi on behalf of the official respondents. We also went through all the documents relevant for disposal of the appeal.
It would appear that the appellant was un-satisfied with the seniority list impugned in this appeal only because his name was missing from the said list. The argument of his learned counsel was that consequent upon transfer of the appellant's service to the Provincial Government on the same terms and conditions as were applicable from the to the to the Government Teachers of his category, he became civil servant and as such was entitled, inter alia, to have his name included in the impugned seniority list. No doubt the appellant's name was not borne on the said seniority list.
But then none of the teachers serving in the taken over schools found mention in that list. While explaining the reason for their omission from the impugned seniority list, the learned counsel for the official respondents submitted that after transfer of the Local Council High Schools to the provincial Government the teachers serving in them were kept as a separate cadre known as Provincialized cadre. The appellant's name, alongwith the names of his colleagues working in the said schools was included in that cadre for which separate seniority list was prepared. In support of his argument he referred to para 9 of the written statement filed on behalf of the official respondents. The relevant portion of the said para is reproduced as under:- "It is submitted that as a matter of Government noliey and in exercise of power vested in the Govt, of sindh, Education Department i.e. The Respondent No 1 with the approval of the Respondent No. 1 i.e. The competent authority prepared, circulated and issued category wise separate seniority list i.e. (i) Seniority List for Government Cadres referred to above (ii) Seniority List for Government Cadres referred to above (ii) Seniority List for provincialised Cadre and Seniority List for Nationalized Cadre in respect of Headmasters/Sub-Divisional Education Officers/Dept Education Officers, working under the respondent No.1 and 2. The name of the appellant was mentioned in the separate seniority list pertaining to provincialised cadre in respect of Headmasters/Education Officer of Grade BPS-17 at Sr.No.32 which was also drawn up and circulated by the respondents No.2 with the approval of competent authority vide education Deptt: letter/order No.SO(E-IV) 1- 48/89 dated 30.1.1989."
3. It is clear from the above para that a separate seniority list was maintained for the provincialized cadre. The name of the appellant appears at S. No:32. In that list. Keeping the arguments of both the sides in view, we have to take a decision whether by virtue of talking over the control of Local Councils' High Schools by Government, the teachers including the Head Masters, of the said schools became civil servants and if so, whether it was legally mandatory to show their seniority in relation to the teachers of their category already in Government service, in one and the same consolidated seniority list. For answering these questions it would be necessary to study the relevant provisions of the said Ordinance in depth. Our endeavour should be to find out if the said provisions had the effect of bringing about complete merger of the service of the teachers of the taken over schools with the service of their counterparts working in Government schools so as to rule out the possibility of maintaining separate seniority lists for aforesaid to classes of teachers.
To begin with we may refer to Section 3 of the said Ordinance which reads as under:
3. As from the date of enforcement of this Ordinance in any area, hereinafter referred to as the said date high schools maintained by the Local Councils shall not with standing anything contained in any other law for the the being in force in that area be under the control of Government and all rights, authorities and jurisdiction vested in or exercised by a Local Council in respect of such high schools in that area immediately before the said date, shall-
(i) except in so far as may be otherwise provided by or under the Ordinance or as may be otherwise directed by Government, cease to vest in and be exercisable by the Local Council;
(ii) vest in and be exercisable by Government in accordance with the provisions of this Ordinance."
4. No. Doubt by above section, the High Schools maintained by Local Councils (hereinafter referred as the said High Schools) were brought under the control of the Provincial Government. But as regards rights, authorities and jurisdiction vested in and exercised by a Local Council in respect of the said High Schools, it has been made clear that the same shall vest in and be exercisable by Government in accordance with the provisions of the said ordinance. Obviously the intention was to run the said High Schools as institutions distinct and separate from similar Government institutions. Precisely for the reason the law and rules ordinarily applicable to Govt, institutions were not extended to the said High Schools. Again clause (i) of the above section goes further to except those rights, authorities and jurisdiction for which it is otherwise provided by or under the Ordinance, or it is otherwise directed by the Government. Thus notwithstanding the provisions of the said ordinance. The exception clause empowers the Government to regulate the exercise of the rights, authorities and jurisdiction in respect of the said High Schools either by rules to be framed under the said Ordinance or by appropriate directions to be issued from the to the. Accordingly the above section has left no doubt whatsoever that with transfer of the said High Schools to the Government's control, the teachers working in those schools did not automatically enjoy the status of civil servants nor the Sind Civil Servants Act 1973 and the rules framed thereunder became applicable to them. On the contrary, as pointed out above, there is a express provision in the said Ordinance which equired that rights, authorities and jurisdiction in respect of the teachers and other staff of the said High Schools shall vest in and be exercised by the Govt, in accordance with the provisions of the said Ordinance. The Govt, has been further authorized by clause (i) of Section 3 hereinabove to frame rules or issue appropriate directions with regard to exercise of rights, authorities and jurisdiction vested in and exercised by the Local Councils in respect of the said High Schools.
It is true that as provided in clause (b) of Section 5 of the said Ordinance, the services of the teachers working in the said High Schools stood transferred to the Govt, on same terms and conditions as are applicable from the to the to teachers , of corresponding categories in Government service. The limited purpose of this , provisions clearly is to allow the teachers of the said High Schools the benefit of same terms and conditions of service as are available from the to the to their counter parts already in Government Service. In our opinion the extending of such concession to them would not mean the automatic change of their status. In other words, they would not become civil servants only because the terms and conditions of service enjoyed by civil servants are allowed to them.
It may also be pertinent to refer to Section 7 (1) and Section 8 of the said Ordinance. They are reproduced as under:- " Section 7 (i) A Local Council shall pay as is share for maintenance of High Schools such percentage of the local rate or income, as the case may be, as may be prescribed by Government."
"8. A Local Council shall pay to Government such amount as its contribution towards pension of teachers and other employees for the period they served under it as may be prescribed."
As is clear from the above sections, despite the transfer of the control of the said High Schools to Government, the liability of the Local Councils as regards the maintenance of the said High Schools and payment of pensions to the teachers thereof did not end. Instead they had to share the burden as may be prescribed by the Govt, obviously by rules. Besides these provisions, Section 4 bf the Ordinance authorizes the Government to exclude any of the said High Schools from purview of the said Ordinance.
5. Apart from above, the said Ordinance is conspicuously silent with regards to determination of seniority of the teachers the said High Schools subsequent to their transfer to Govt. In absence of such provision, we are of the view that the Government had rightly invoked its power under clause
(i) of Section 3 here in above and directed for maintaining separate seniority list of the teachers of the said High Schools, which came to be known as the seniority list of the provincialized cadre.
From the above discussion we are convinced that following the transfer of the appellant's services from District Council to Govt., he continued to be governed by the said Ordinance and not by the service law and rules applicable to civil servants. On careful study of the said Ordinance we are inclined to the view that the Government took over the control of the said High Schools for the limited purpose of running their administration on behalf of the Local Councils. The said Ordinance did not envisage the complete merger of the said High Schools and their personnel with those of the Government. On the contrary the Government has been given power to frame rules or issued directions for regulating the affairs of the said High Schools. Therefore the report of the Director, School Education, Karachi Region dated 31.3.1990 which was relied upon by the appellant's learned counsel was obviously misconceived and was rightly not given any weight by the higher Government quarters.
6. For above reasons we have come to the conclusion that on merits the appellant has no case for inclusion of his name in the impugned seniority list. Even on the legal plane his case is very weak.
As pointing out above the appellant is not a civil servant and as such this Tribunal has no jurisdiction to intervene and grant the desired relief to him. Accordingly appeal is dismissed with no order as to costs.