' SHAFIUR RAHMAN, J.--- Leave to appeal was granted under Article 212(3) of the Constitution to the appellant to examine whether the judgment of the Punjab Service Tribunal dated 8-12-1983 correctly interprets and applies to the appellant the provisions of Ordinance No,XV of 1970, West Pakistan Local Councils High Schools (Taking Over) Ordinance, 1970 (hereinafter referred to as the Ordinance).
2. The appellant Mazharul Haq joined the District Councils' service as C.T. Teacher on 15-11-1962. He improved his academic qualifications while so employed by acquiring B.Ed. On 25-7-1963 and Masters Degree on the 16th November, 1973. On the 30th May, 1970 was promulgated the Ordinance.
Sections 3 and 5 of the Ordinance are relevant and they are reproduced in extenso hereunder:-- "3. Taking over of High Schools.---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 notwithstanding anything contained in any other law for the time 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; and
(ii) vest in and be exercisable by Government in accordance with the provisions of this Ordinance.
5. Transfer of staff and assets.---As from the said date, subject to the Provisions of this Ordinance - --
(a) all properties and assets (including any unspent grants or unspent part of grants and donations, vesting in a Local Council for the purposes of high schools shall vest in Government for the purposes of high schools;
(b) all teachers including the heads of schools and other staff employed by a Local Council in connection with the high schools 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;
(c) all rights of a Local Council relating to properties and assets of high schools shall become the rights of Government: Provided that nothing herein contained shall affect the liability of a Local Council in respect of arrears of pay, leave salary, allowances, contributions to the General Provident Fund, and other dues of the teachers and other staff transferred for service to Government under clause (b), rent for the buildings, and other liabilities relating thereto accrued up to the said date."
3. The services of the appellant and others like him were provincialized and this policy of provincialization was implemented in three phases. The policy was circulated by letter dated 18-6- 1970. The more material document, however, is the circular dated 29th June, 1970 which deals with the subject of integration of the employees of provincialized schools. It was modified subsequently but the main provision of it contained in para. 2, clause (i) in the following words remained intact:-- "All teachers transferred from local bodies to Government service on 1-7-1%2 as a consequence of the provincialization of local body primary and middle M/S. And on 1-6-1970 as a consequence of provincialization of local body H/Schools shall have one separate self-diminishing sub-cadre for each category. These teachers shall be placed in the regional and district sub-cadres created for them and their right of selection grade and promotion shall accrue within their own sub-cadres.
The seniority of these teachers in Government service shall count from the date of their transfer to Government service. However, the inter-seniority of these teachers within the sub-cadres in the various regions shall count from the date of their continuous appointment in the provincialized local body schools."
4. The grievance of the dppellant arose when he found that he was ignored for posting against the higher post when the orders dated 10-5-1981 issued. He represented to the Government and not getting favourable response ultimately approached the Service Tribunal The prayer made in the appeal was in the following terms:-- "In the circumstances it is most respectfully prayed that the appellant along with others described as belonging to the Provincialized Cadre (Self-diminishing sub-cadre) be treated at par with those similarly qualified and coming from the Government-owned schools (described as general cadre) and the discrimination shown towards the appellant and others, while determining fitness to be appointed to hold a particular post or to be promoted to higher grade, in view of their coming from the taken-over schools be declared as illegal, unlawful and of no consequence."
5. The Tribunal examined the merits of the claim made by the appellant and while dismissing the appeal followed its own earlier judgment on the subject.
6. Mr. Khalid Ranjha, Advocate, the learned counsel for the appellant has emphasized clause (b) of section 5 of the Ordinance providing in express terms that "all teachers including the heads of schools and other staff employed by a Local Council in connection with the high schools 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". This statutory provision, according to the learned counsel for the appellant, entitles the appellant to be treated at par with the Government employees of the equivalent or corresponding grades. This equality in treatment enjoined by the statute extends to being placed in the same category as are the Government teachers for the purposes of posting and promotions to other posts. The distinction made between a 'self-diminishing cadre' and the other which is not so and the promotion posts proportionate to each cadre defeats rather than advances the object of the law providing for the provincialization of the educational institutions. The Tribunal has not, according to the learned counsel for the appellant, attended to the heart of the problem presented before it.
7. Mr. Shahzad Jehangir, Advocate, the learned counsel representing respondents Nos.4 to 6, raised certain preliminary objections to the very competence of the Service Appeal before the Tribunal.
One of the grounds taken up was that the grievance of the appellant throughout has been that he was not found suitable for a particular promotion post and the question of suitability has been kept outside the jurisdiction of the Tribunal. Besides, according to the learned counsel for the respondents, the statutory guarantee did not extend to the prospect of promotion and such provisions have been consistently interpreted by this Court to exclude the guarantees with 'regard to prospect of promotion.
8. There are two decisions which have been greatly relied upon by the appellant but they do not appear to be on the exact controversy involved in this appeal. The first one is the decision of the High Court in the case of Punjab Province and 2 others v. Mumtaz Khan PLD 1972 Lah. 1 which dealt with the provisions of West Pakistan Primary Education Ordinance of 1962. The dispute related in that case to the entitlement for pension for the service rendered before the provincialization of such teachers.. Section 6 of that Ordinance as originally framed and subsequently amended was interpreted to entitle the staff to avail of the pensionary benefits of the service rendered prior to provincialization.
9. The other similar case is of Abdul Rashid and 11 others v. Government of Punjab etc. 1982 PLC (C.S.) 486 also referred to by the Tribunal, in which the exact question was as to from which date, on such provincialization, the staff was to be considered to have entered into Government service.
It was held by the Tribunal that that date cannot be taken prior to date of merger in the absence of special provision in the law.
10. The exact question involved in this, appeal, though again under a different law but containing a similar provision, came up for consideration in this Court in the case of Naimat Ullah Butt and others v. The Government of the Punjab through the Secretary, Education, Lahore 1988 SCMR 1453.
The law was laid down in the following words:-- " 'Cadre', as is well-known, is the strength of a service or part of a service sanctioned as a separate unit and each cadre consists of a certain number of posts. There being no legal bar on the authority of the Government to keep the members of the teaching staff transferred from Local Body Institutions to the Education Department of the Provincial Government as separate cadre and there being no violation of any specific term and condition of the appellants' service, no ground exists for interference with the impugned order passed by the Service Tribunal."
11. Sections 3 and 5 of the Ordinance already reproduced in this judgment vested all the powers in the Government. The teachers earlier employed by a Local Council were to stand transferred for service to and employment by Government. Therefore, the Government was the competent authority to determine in accordance with the provisions of the Ordinance, the terms and conditions which were not preserved or specified in the Ordinance itself. It was in exercise of this power that the Government took a decision that they shall be placed in separate self-diminishing sub-cadre and this was not with a view to limit or curtail any of their existing benefits, but with a view to ensure the same right of prospect and promotion as was available to each of the intergrated sub-cadres prior to provincialization of the Local Councils' staff. The appellant could claim no vested right under the law in the prospect of promotion and the enlargement of it to their benefit on provincialization of their services. The essence of the grievance of the appellant was that after the merger or integration in Government service from a specified date, he and those like him, provincialized under the law, should not have been treated as a distinct category and the promotion restricted to the proportionate promotion post available against their particular sub- cadre. The grievance, for that reason, concerns directly the prospect of promotion and the appellant considers it not to be equally beneficial as has been made for those already in government service. The case of Naimat Ullah Butt referred to, dealt with exactly the same question. It has two aspects, the first was the formation of a distinct cadre of those belonging to the category who stood integrated with the Government servants and the second is the limitations placed on their prospects of promotion by relating it to the promotion posts brought at the stage of integration in the Government service. As this follows a rational basis and was within the competence of Government, no legal objection can be taken to it.
12. The appeal has no merit and is, therefore, dismissed with no order as to costs.