JUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).- The appellant Muhammad Murtaza, a high school teacher has filed this appeal with the following prayer: "
24. The appellant, therefore, humbly prays that the Honourable Tribunal may be pleased to:
(a) Admit the appeal and call for from Respondents No. 1 and 2 the record of the case resulting in the impugned order and the service records of the appellant and Respondents No. 3 to 11:
(b) after hearing the parties, set aside the order of respondents No. 3 to II's promotion as Head Master, herein appealed against, and direct that the appellant be considered in preference to respondents No. 3 to 11 for his promotion to the post of Head Master, with all the consequential and back benefits;
(c) Grant any other/further relief which the Honourable Tribunal deems fit and appropriate in the circumstances of the case; and
(d) Award costs of the appeal to the appellant."
2. The appellant's case is that he joined Government service as a High School Teacher which was formerly known as Senior English Teacher w.e.f. 17.7.1967 and continued in that capacity until 1-10- 1972 when in pursuance of MLR 118 (hereinafter referred as the said MLR), the privately managed schools were nationalized and the private respondents shown at S. Nos. 3 to 11 in the memo of appeal who were serving in those schools as Assistant Teachers were inducted in Government Service. As provided in para 7(2) of the said MLR, the private respondents were guaranteed only the scales of pay enjoyed by Government Teachers of Comparable qualification, Experience and Seniority. On 22-6-1980 a tentative consolidated seniority list of High School Teachers of Karachi Region was drawn up wherein appellant's name appeared at S. No. 279 whereas the private respondents were placed from S. No. 754 to S. No. 767. However in total disregard of the appellant's seniority the private respondents were promoted to the posts of Head Masters vide Education Department's notification dated 17th April, 1990 and consequent order dated 21-4-1990 issued by the Directorate of School Education, Karachi. The appellant challenged the said orders in the departmental appeal dated 17-5-1990 but as no decision was taken on his said appeal until after expiry of 90 days, he filed the present appeal on 3-9-1990.
3. We heard the arguments of the learned counsel for the parties and carefully went through all the documents relevant for disposal of the appeal.
4. It would appear from clause (b) of the appellant's prayer reproduced above that he has called in question the promotions of private respondents as Head Masters. Opposing the appellant's said prayer, it was contended by the learned counsel for the respondents, that this Tribunal has no jurisdiction to go into the question of the private respondents' fitness for promotion. They also vehemently recited the appellant's claim as being senior to the said private respondents. As regards the question of jurisdiction, it may be pertinent to refer to proviso (b) to Section 4 of the Sind Service Tribunals Act, 1973. It reads as under: "(b) no appeal shall lie to Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular po6t or, to be promoted to a higher post or grade."
5. It is clear from the above proviso that the jurisdiction of this Tribunal is barred when a departmental order or decision as to fitness or otherwise for appointment or promotion is involved.
Confronted with this situation, the appellant's learned counsel attempted to argue that since the appellant's name was never considered at the the of private respondents clearance for promotion, all that he sought by this appeal was that he should be considered for promotion. This argument being inconsistent with the appellant's prayer hereinabove, carried no weight. Further more when it was pointed out to the learned counsel that the appellant could not press for consideration of his name for promotion alongwith the private respondents' names unless he was admittedly senior to them, he informed us that the appellant was senior to all the private respondents. In this connection he relied upon tentative consolidated seniority list of High School Teachers issued on 22-6-1980. The appellant was undoubtedly shown senior to the private respondents in the said list.
But there is no indication on record that the said list was ever finalized and acted upon. Even the appellant himself has raised no such claim.
6. On the other hand the respondents plea is that following the nationalization of the privately managed schools Separate seniority list of the High School Teachers working in the said schools was maintained. It came to be known as seniority of nationalized closed cadre as distinguished from the Govt, cadre. In this connection reference may be made to last para of the caption "Brief Facts" at page 2 of the written statement filed on behalf of official respondents and adopted by the private respondents. The said para reads as under:- "It is further submitted that according to the policy of Government of Sind Education Department, Karachi separate seniority lists of HST's of Govt. Cadre (Male) and (Female) Karachi and Nationalized (dosed) cadre pertaining to HST's of Nationalized Schools at the the of take over of privately managed schools have been maintained in the Directorate of Schools Education, Karachi.
7. In support of above assertions, two seniority lists; one of nationalized dosed carder issued on 26- 1-1989 and another of Government cadre issued on 4- 2-1989 have been placed on record. The appellant whose name appears in latter seniority list at S. No. 149, does not find mention in the seniority list of nationalized dosed cadre. Thus the question of the appellant being senior to the private respondents did not arise. Consequently it was incorrect to say that the appellant's seniority vis-a-vis private respondents was admitted.
8. It seems to ns that although in 1980 attempt was made to prepare and maintain one consolidated seniority list of High School Teachers belonging to both Government Schools Nationalized Schools, so much so, that even a tentative seniority list was published on 22-6-1980, yet the exercise was apparently abandoned in the light of decisions taken in the meeting held on 23-4-1981. This is dear from the Education Department's letter No. S.O. (E.IV) Misc:/79, dated 3rd January, 1982, which reads as under:- "To,
1. The Director of School Education, Karachi Region, Karachi.
2. The Director of School Education, Hyderabad Region, Hyderabad.
SUBJECT: MINUTES OF THE MEETING HELD AT 11:30 AM. ON 23RD APRIL, 1981 IN CONNECTION WITH THE VARIOUS PROBLEMS OF NATIONALIZED SCHOOLS TEACHERS UNDER THE CHAIRMANSHIP OF MR. MUSHTAQ AHMAD KHOKHAR, DY. SECRETARY (ACADEMIC) DEPARTMENT OF EDUCATION.
9. I am directed to endorse herewith a copy ef minutes of the meeting held on 23-4-1981 on the subject noted above and to request you to please initiate necessary action at once in the light of the decision taken in the matter under intimation to this Department within a week positively without fail.
10. Concerned DEO's/SDEO's may also be directed to do the needful, ends. As above.
SD Section Officer (E-IV)
Education Department.
Endst: No.S O. (E-IV) Misc/79, Karachi, dated the 3rd Jan, 1982.
Copy for information to:- The President Coordination Committee Federation of Nationalized Schools Teachers Sind, Karachi.
SD Section Officer (E-IV)
Education Department".
10. We were also shown the minutes of the meeting mentioned in the above letter. It was found that inter alia following decisions were taken in the said meeting; After detailed discussion it was deeded that cadre-wise seniority of Schools maintained by Government and that of Nationalized Schools will remain separately an already prepared and should be enforced accordingly.
Muhammad Murtaza Khan V. Govt, of Sind (Justice (Rtd.) Munawar Ali Khan, Chairman) b) Promotions up to grade-17 shall be made on the basis seniority in Schools maintained by Government Schools cadre and promotion to grade-17 in Nationalized School shall be made on the basis of Nationalized Schools cadrc-wise seniority lists. c) While making transfers from Nationalized to Government side schools and vice versa, efforts may be made to maintain balance. d) In future on administrative reasons if any teachers or Headmaster is transferred from Government Schools side to Nationalized Schools or vice versa parity should be maintained to avoid any complain from either side."
11. The question arose if on induction of the Teachers of nationalized schools in Government service, there seniority list deparate from the seniority list of teachers of Government Schools was legally permissible. While referring to para-7(2) of the said MLR the appellant's Learned counsel submitted that only scales of pay comparable to those enjoyed by Government Teachers of equivalent qualification, experience and seniority were ensured to the teachers of the nationalized schools.
According to him since their seniority was not protected they had to be si own junior to the appellant. His argument with regard to seniority would carry a lot of weight if one consolidated seniority list was prepared and maintained of the teachers coming from both nationalized schools and Government schools. But the point for our consideration is whether two separate seniority lists; one for teachers of nationalized schools and another for teachers of Government Schools could be maintained. In this context reference may be made to para 13 of said MLR which empowers the Government to make rules necessary or expedient for carrying out the purposes of the said MLR.
Such rules are of course to be made subject to para 7(2) of the MLR. That is to say that the rules made by the Government will not in any manner curtail or abridge the right of pay scales guaranteed to the teachers of the nationalized schools under para 7 (2) referred to above. There is no other impediment in the way of the Government which is therefore free to make any rules it may consider necessary of expedient for carrying out the purposes of the MLR. We are of the view that until any such rules are framed, the policy guidelines decided upon by the Government would fall within the scope of para-13 hereinabove. Accordingly the decisions taken in the meeting held on 23-4-1981 and conveyed by the Education Department's letter dated 3rd Jan. 1982 could be legally put into operation. Separate seniority lists for Govt. Teachers and Teachers of the nationalized schools which have been drawn up in accordance with above policy decisions of the Govt, are perfectly valid. Therefore the appellant should have no grievance if the private respondents who belong to rationalized closed cadre have been promoted as Head Masters on their turn in their own cadre.
12. For above reasons there is no merit in this appeal which is therefore dismissed with no order as to costs.
13. Given under our hands and the Seal of this Tribunal on this 30th day of January, 1992 at Karachi.