ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --Briefly the facts are that the appellants namely Mrs. Rukhsana Tufail (Appeal No. 267(R)/93); Miss. Shaista Pirzada (Appeal No. 268(R)/93); Mr. Muhammad Rafiq Malik (Appeal No.269(R) 93) Mr. Abdul Rehman Memon (Appeal No.270 (R)/93) and Mr. Anwar Ali Khan (Appeal No. 271 (R)/93) were selected and appointed as Vice-Principals in the Model Colleges for Girls and Boys of Islamabad respectively under the Federal Directorate of Education by way of, direct requirement in BPS-18. The seniority of the appellants was previously maintained separately according to grade and posts but in the year 1993 a consolidated seniority list of teachers (Female/Male) in PBS-18 was issued on 22-4-1993 and was circulated amongst the Teaching Staff (B-18). , The representations were invited to examine their grievances. There are two combined seniority lists of Teachers (B-18) Male and Female respectively, whereby names of the appellants are also given in the list of the Teachers in B-18. The appellants made representations that they were appointed directly under different posts and cadre of Vice-Principals and, therefore, their names have wrongly been included in the seniority list and they have been shown as Teachers and their inclusion in the list of teachers out of cadre is contrary to the rules and void and as such may be set aside. The appellants have not challenged the seniority but their contention is of legal nature as previously seniority lists were being maintained cadre-wise separately and as such the very basis of circulating the list is incorrect and i$ against law and terms and conditions of their service. They have filed these appeals under section 4 of the Service Tribunals Act, 1973 after exhausting departmental remedy.
2. Since common points of law and facts are involved in all these appeals, we propose to dispose of all the five appeals by this single judgment.
Appeal No 267(R)/93.---Appellant, Mrs. Rukhsana Tufail was working as Principal, F.G. Public School, Gujranwala Cantt. She applied for the post of Vice-Principal (B-18) in Islamabad Model College for Girls in pursuance of advertisement and was selected and appointed as Vice-Principal vide order dated 21-1-1984 against a vacant post in one of Girls College F-7/4, Islamabad. She was also allowed charge allowance of Rs.150 per month-vide order dated 8-6-1991. '
Appeal No. 268(R)/93.---Appellant, Miss. Shaista Pirzada was working as Senior Teacher/Incharge Junior Section, Public School, Sukkur in BPS-18. She applied for post of Vice-Principal in pursuance of advertisement, was selected and posted as Vice-Principal, Islamabad Model College for Girls. F- 6/2, Islamabad in B-18 vide office order dated 25-4-1990. She was also allowed charge allowance of Rs.150.
Anneal No 269(R)/93:-----Appellant, Mr. Muhammad Rafiq Malik was working as Senior Teacher in Islamabad College for Boys in BPS-17. He applied for the post of Vice-Principal and was selected and was appointed as Vice-Principal in B-18 vide order dated 31-12-1983 in the Islamabad Model College for Boys, F-7/3. He was also allowed charge allowance of Rs.150.
Appeal No. 270(R)/93: --Appellant, Mr. Abdul Rehman Memon was working as Senior Teacher in BPS-17 in Islamabad Model College for Boys, F-7/3, Islamabad. He applied for the post of Vice- Principal and was selected. He was posted as Vice-Principal, Islamabad Model College for Boys, G- 10/4 in BPS-18 vide office order dated 9-7-1989. He was also allowed charge allowance of ks.150 per month.
Appeal No. 271(R)/93,---Appellant. Mr, Anwar Ali Khan was directly appointed as Vice-Principal (B- 18) and posted as such in Islamabad Model College for Boys, F-8/4, vide office order dated 9-7- 1989. He has not given previous history of his service career.
3. In all these five appeals, the Secretary, Establishment Division, the Secretary, Ministry of Education and the Director-General, Federal Government Educational Institutions, Islamabad, have been made as respondents Nos. 1 to 3 and senior teachers/teachers have been arrayed as private respondents. The Establishment Division has not filed comments. The Ministry of Education has filed comments in Appeal No. 269(R)/93 and sent common comments in other Appeals Nos. 267, 268, 27,0 and 271(R)/93. Likewise the private respondents have filed comments through their Advocates and we have heard the learned counsel for both the parties.
4. Dr. G.S. Khan, Advocate has appeared in all the five appeals on behalf of the appellants. It is argued that the appellants were directly recruited as Vice-Principal in B-18 after due process of selection by the Committee. Therefore, the merger of the post of Vice-Principal with the category of Teachers is devoid of the rules and the general principles of seniority. He has argued that before being declared as `civil servants' on the pronouncement of Supreme Court they were, governed by the rules framed by the Board of Governors in the year 1983 and 1988. Therefore, their terms and conditions of service could not be changed to their disadvantage. It is submitted that even otherwise under the Civil Servants Act, 1973, seniority is to be determined in a service, cadre or post.
The appellants having been appointed as V.Ps. Have never been Teachers or senior Teachers and, therefore, their seniority cannot be merged with the Senior Teachers and it is violative of the rules. It is argued that prior to declaration of civil servants, separate seniority list of Vice---Principals was being maintained by the Department, as is evident from the list (page 43-A of the memo of Appeal) which contained the following names only:
(1) Mrs. Rukhsana Tufail
(2) Mrs. Fatima Badar
(3) Mrs. Zubunnisa Muzaffar Malik
(4) Mrs. Rehana Riaz Wasti
(5) Miss Shaista Pirzada and likewise of Male V.Ps. and this act of the respondents 2 and 3 is in consistent with the earlier stand taken by them with mala ride intention to favour a particular class of people. It is contended that the appellants continue to be Vice-Principals in the separate, cadre and not as Teachers or Senior Teachers, therefore, the merger of seniority lists of the appellants is illegal. He has referred to the cases reported in PLD 1990 SC 612; PLD 1968 (AJK) 64; 1991 SCM R 1348 and 2216; 1993 SCM R 1119; 1993 PLC (C.S.) 1201 and 1984 PLC (C.S.) 546. It is argued that appellants were directly recruited as Vice- Principals and they are not promotees. It is argued that there is discrimination as seniority of Head Mistress has not been merged with Teachers and merger of seniority of V.Ps. Is clearly with mala fide.
5. Mr. Zakauallah Jan, Section Officer, appeared on behalf of the Establishment Division, submitted that Establishment Division is pro forma respondent, therefore, comments have not been filed as impugned action has been taken by the Ministry of Education without consulting the Establishment Division.
6. Mr. Qazi Abdur Rashid, learned Advocate has appeared on behalf of some of the private respondents in the appeals and referred to PLD 1981 SC 612 and submitted that the Tribunal in the absence of any final order of departmental authority cannot adjudicate upon the grievance of the appellants as it is a provisional seniority list which has been impugned before the Tribunal. It is argued that the respondents for whom he is appearing have filed representations against the impugned seniority list and no decision has yet been taken by the Ministry of Education and representations are still pending. He has given the entire history of the appointments made in the Islamabad Model Schools/Colleges and argued that in 1966 all the teachers were appointed in Grade-16 and 17 and finally in the year 1982, 25% of the posts were upgraded and some of the incumbents were placed in Grade-18 illegally, and their cases were not referred to Selection Committee whereas his respondents applied through proper channel, in pursuance of the advertisement, and were selected by the Selection Committee and were made regular. His grievance is that appointments of so many personnel, is still illegal having not been regularised and they cannot reckon seniority over and above his respondents. It is argued that 60% posts are selection posts for which selection could be made on the basis of merit and not otherwise and promotions of such extra 27 persons being illegal and were in fact ex-gratia favour, which creates no right whatsoever. He has argued that injustice has been done to the Senior Teachers and the wrong done may be rectified now as these are the cases of clear favouritism. He has annexed a copy of the representation dated 9-5-1993 made by Mrs. Razia Rashid to the Secretary, Ministry of Education. He also urged that several persons did not appear before the Selection Committee and according to him the names of 22 teachers be eliminated from the impugned seniority list of teachers.
7. Mr. Fazal Elahi Siddiqi, Advocate, representing some . Of private respondents has raised preliminary objection that this appeal is premature and since it is provisional seniority list, the appeals are incompetent in view of the law laid down by the Supreme Court in the case reported in PLD 1981 SC 612. He has argued on the merits and submitted that in the year 1982, 25% of the posts of Senior Teachers in B-17 were upgraded to B-18 and post of Vice---Principal which is in B-18, shall stand excluded. As such, there exists no post of Vice-Principal since 1982 under the 1983 Rules, made by the Board of Governors and there are only posts of Senior Teachers. Therefore, the department has rightly prepared the provisional seniority list of Teachers. With regard to 1983 and 1988 Rules, he stated that it is for the Department to reply. He further stated that the appellants in view of their dates of appointments have rightly been given proper place in the seniority list.. He has argued that grant of charge allowance of Rs.150 does not put the appellants in higher position as Vice-Principal is merely a Senior Teacher in B-18. He argued that on assumption of the character of `civil servant', the employees come under the purview of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and there is neither a post of Principal nor that of Vice-Principal, but there is only Lecturer (B-17), Assistant Professor (B-18) and Associate Professor (B-19) and Professor (B- 20). Thus there is no concept of Vice-Principal in these rules.
8. Mr. M. Dawood Khan, Asstt. Educational Advisor appeared on behalf of the Ministry of Education and submitted that representations against the provisional seniority list are pending consideration under the Ministry of Education, but he cannot say when these representations could be decided. In the comments filed by Ministry of Education in M.P. 159/93 in Appeal No.267(R)/93, it has been stated that: "According to 4-tier service formula and the recruitment rules framed under it and approved by the Establishment Division, the post of 'Principal (being a promotion post) is required to be filled in by the Senior Teachers and not by the Vice-Principals who have become surplus after introduction of the said service structure. However, in order to avoid abolishing of this post, the Vice-Principals have been placed at the appropriate places in the 4-tier service structure meant for only teaching staff."
In the comments to the main Appeals Nos. 267, 268, 270 and 271(R) of 1993, it has been stated in paragraphs Nos. 3, 9 and 11 as under:-- "3. (i) The posts of Vice-Principal/Headmistress and Sr. Teachers are in B-18. As regards the post of Headmistress B-18, the position is clear, that it is meant for Junior Section, whose seniority list is being maintained separately. As per service rules of Model Institution prior to 1988, the post of V.P.
B-18 was for direct recruitment, however, according to Service Rules, 1988, 50% of the post of V.Ps.
Were required to be filled by promotion' from amongst the senior teacher and the remaining 50% by direct appointment.
(ii) The senior teacher B-18 (S.G.) is a misnomer and is not synonymous to the selection grade of the Government. For all practical purposes, this has always been treated as regular B-18.
(iii) After declaring employees of the Model Colleges as civil servants the post of V.P. Was to be abolished as is done in other F.G. Colleges.
(iv) The terms and conditions mentioned by the appellant were offered by the defunct Board of Governors. Now the status has been changed and employees are governed by Civil Servants Act, 1973.
9. As per Four Tier Service Structure, the post of V.P./Sr. Teacher (B-18) have been redesignated as Asstt. Professor (B-18). The competent authority has redesignated a large number of Sr. Teacher B- 18 (S.G.) as Asstt. Professor since 1987 and no representation was received by the Ministry of Education.
11. The seniority, of all the officers including the appellant will be assigned according to the rules of seniority after getting the approval of the competent authority."
While filing the comments in Appeal No. 269(R)/93, the Ministry of Education vide paragraph 9, has stated that with the change from Public School System to Governmental Institutions, abolition of the post of V.P. Was imperative and if they were not given the advantage of only losing their administrative position with somewhat of seniority, the other alternative could have been more serious for what was done would have been that they would have become surplus in the new fangled set up. It is stated that combined seniority list in view of the above facts by merger of two cadre has been done legally. He has relied on proposed Rules of 1993.
9. Now we proceed to deal with the legal objection taken by the respondents that it is still a provisional seniority list and appeals are not competent. This is not the only question which is to be considered here. We asked the representative of the Ministry of Education to make a statement as to when the seniority lists would be finalised after examining the representations invited by them, to which he replied that he cannot make any statement as there were so many complications and the recruitment rules were yet to be framed. Two questions which are to be resolved in these appeals; are firstly the seniority list which has been framed by the department by which only V.Ps.
Names have been included in the list of Teachers and merged their cadre and posts whereas seniority list of Headmistress, according to their posts and cadre has been maintained separately.
This fact has been admitted in comments by the Ministry of Education is para. 3 reproduced above.
The contention of the appellants is that by merging their names in one combined seniority list their terms and conditions of service have been violated and they need protection of their rights according to law, Mr. Qazi Abdur Rashid, the learned counsel appearing for some of the private respondents inter se has also challenged the impugned seniority list that there are about 22 persons whose appointments have not been regularised and as such they are not entitled to be included in the seniority list and to that extent, we are inclined to accept this contention that final seniority list with regard to that category is yet to be reopened and settled. Though department very tactfully issued a seniority list not showing word "provisional" and invited representations stating therein that Ministry's officials will visit each Institution and examine their representations and take decision. With regard to legal position, the case of appellants (Vice---Principals) is that under section 8 of the Civil Servants Act, 1973, their seniority has unnecessarily been merged with the teachers as their cadre is different for which they were directly recruited and regularly appointed. Let us take up the case of appellants first as entire submissions are of legal nature and they have challenged the merger in the list on point of law. All the five appellants were appointed by direct recruitment in pursuance of the advertisement as Vice---Principals in BPS-18 and their dates of appointments are:
1. Mrs. Rukhsana Tufail21-1-1984
2. Miss Shaista Pirzada25-4-1990
3. Mr. Muhammad Rafiq Malik 31-12-1983
4. Mr. Abdul Rehman Memon 9-7-1989
5. Mr. Anwar Ali Khan9-7-1989 Mrs. Rukhsana Tufail and Mr. Muhammad Rafiq. Malik were thus appointed as Vice-Principals in B- 18 under the provisions of 1983 Rules, which were framed by the Board of Governors of the Islamabad Model Schools for Boys under the Resolution dated 5th April, 1966 and were published in the Gazette of Pakistan dated 6th August, 1983 known as "Islamabad Model School for Boys (Service) Rules, 1983" and Rule 11 thereof relates to `Seniority' and is reproduced hereunder: "Seniority : -(1) Seniority of employees shall be maintained separately for each cadre and shall be determined with reference to the date of regular appointment in the cadre.
(2)Employees promoted to a higher grade in a batch shall retain their seniority in the lower grade.
(3)The employees promoted to a higher grade in a calendar year shall rank senior to employees directly recruited to that grade in the same calendar year".
Under these rules, there is, also provision of Vice-Principal and Principal but no quota was fixed for promotee and direct recruit in 1983 Rules when Mrs. Rukhsana Tufail and Mr. Muhammad Rafiq Malik were appointed before 1988. Miss Shaista Pirzada and M/s. Abdul Rehman Memon and Anwar Ali Khan having been appointed subsequently were governed by the 1988 Rules known as "Islamabad Model Schools/College Employees (Services) Regulations, 1988". According. To these rules, 50% of the posts of Vice Principals Headmistress were to be filled by promotion or transfer and remaining by direct recruitment in B-18 having (1) 10 years teaching cum administrative experience in a recognised institution, (2) Experience of organising an educational institution including formulation of programmers of study and school schedules and experience of games and extra curricular activities, having MA./M.Sc. At least 2nd Division, B.Ed./Masters Degree in Education, M.Ed. 2nd Division and 35 years age and minimum qualification for Head Masters (B-18)
B.A./B.Sc. At least 2nd Division and B.Ed./M.Ed. At least 2nd Division and some experience as that of Vice-Principal. As such, for post of Vice-Principal MA./M.Sc. Is must, whereas for Head Mistresses BA./B.Sc. There is clear distinction in each category. The matter does not end here. In 1983 and 1988 Islamabad Model School and Colleges (Service) Regulation, the Vice-Principals were designated as Authorised Officer for the purpose of disciplinary proceedings and with regard to Confidential Reports from B-1 to B-16 they were the initiating officers whereas Principals Countersigning Officers and same was position of Rules of 1983 where .Principals were initiating officer for clerical staff B-1 to 15 and clerical staff and clearly mentioned the posts of Vice-Principal (Administrative and Academic). As stated above the Principal and Vice-Principal were drawing Rs.150 as charge allowance. Thus post of Vice-Principal, carries more responsibilities on Academic as well as Administrative matters as this post cannot be equated with Teachers in which their seniority is proposed whereas cadre of Headmistress is maintained separately.
10. The respondent Education Ministry rightly issued separate seniority lists of Vice-Principals and teachers upto 1992 which has never been challenged by the respondents-Teachers Male/Female.
This has not been controverted by the department and it was rightly done but thereafter they being declared civil servants, their cadre and posts have been changed which is clearly in violation of 1983 and 1988 Rules and section 8 of Civil Servants Act, 1973 when terms and conditions of Headmistress as Lecturer has not been changed.
11. All the Islamabad Model Schools/Colleges were being run by the Board of Governors but on the pronouncement of the Hon'ble Supreme Court's decision reported in PLD 1990 SC 612, the employees of these institutions were declared `civil servants'. Therefore, the Ministry of Education in pursuance of sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973, framed "draft Rules" providing for method of appointment, qualification, experience, age limits and other conditions for appointment in Islamabad Model Colleges for Boys/Girls under the Islamabad Model Colleges Date: whereby the entire nomenclature of the posts which existed earlier since its inception was changed. Therefore, we will have to revert to section 8 of the Civil Servants Act, 1973 which reads as under: "8. Seniority,.--(1) for proper administration of a service, cadre or post the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular, seniority in such service, cadre or post, as the case may be.
(2)Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or cadre whether serving in the same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed.
(4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post.
From the provisions of the above quoted section, it is clear that seniority of a civil servant vis-a-vis his colleagues shall be determined according to the seniority lists to be prepared of the members of service; cadre or post. In the year 1993, the Establishment Division have framed rules called "The Civil Servants (Seniority) Rules, 1993, which apply to all civil servants of the Federal Government.
Rule 2 of the Rules relates to seniority on initial appointment and a- civil servant selected in open advertisement by the selection authority shall count his seniority from the date of his joining the post after being recommended by the selection authority if he was not already holding the same post. Rule 3 provides, seniority on promotion shall take effect from the date of regular promotion to that service, cadre or post. Rule 4 ibid relates to seniority on appointment by transfer and shall be reckoned from the date of regular appointment to the service, cadre or post. Rule 7 is the repealing clause where under the General Principles of seniority and all other rules relating to seniority, except a few have been repealed. The purpose and intention of refering to the above Rules is that in all the rules, seniority is to be determined with reference to the service cadre or post, and there is no concept of merger of cadre of various categories of staff. The Ministry of Education has not yet framed the rules, therefore the provisions of seniority laid down in the Civil Servants (Seniority)
Rules, 1993 shall prevail and seniority of the teaching staff shall have to be maintained in accordance with the provisions contained in those rules, viz. Cadre-wise. The above view is also fortified by the decision of `the Supreme Court in the case of Federation of Pakistan v. Rais Khan (1993 SCMR 609), wherein it has been held that seniority in a post, service or cadre of a civil servant shall be determined from the date of regular appointment to that post. In this context we also refer to the amendments in Civil Servants Act, 1973 by Ordinance No. XXXVIII, dated 18-10-1993. Section 3(2) reads as under:-- "(2)The terms and conditions of service of any person to whom this Act applies shall not be varies: to his disadvantage." '
Therefore, the legal objection with regard to the provisional seniority list raised by the respondents is over-ruled firstly on the ground that the very seniority list is being acted upon and promotions are being made on that basis against which some appeals are pending for adjudication before this Tribunal; and secondly the merger of various categories of teaching staff in one cadre which is totally in disregard of the provisions of the Civil Servants Act, 1973 and is ab. Initio illegal. As such, the case relied upon by the respondents reported in PLD 1981 SC 612 is distinguishable. Similar objection was raised by the Government in the case of Syed Ali Muqtada Wahidi (1984 PLC (C.S.)
X46) that appeal against the provisional seniority is not maintainable before the Tribunal relying on PLD 1981 SC 612. This Tribunal repelled the objection on the ground that since the respondent- department was acting upon the said provisional seniority list for the purpose of promotion, such an objection was of. Technical nature as to avoid- adjudication upon the claim of a civil servant and appeal was competent before the Tribunal and this decision of the Tribunal was upheld by the Hon'ble Supreme Court in Civil Petition No. 670 of 1984 (Pakistan v. SAM. Wahidi), decided on 13-10- 1987. At this stage, we are not touching the merits of the so-called provisional seniority list but on the legal ground examining the point whether merger of Vice-Principals etc., into one cadre of Teachers is in accordance with law.
12. Mr. Qazi Abdur Rashid, Advocate, appearing for co-respondents has taken very cogent objections to the proposed seniority list and in comments he has elaborated the case of some of private respondents whose names have been included in the proposed seniority list of teachers which is said to be still `provisional' and Department has not decided as to how long they will take to finalise it. The objections on facts are as under:- "(1) Paragraph 1 of the appeal is not denied.
(2) Paragraph 2 of the appeal is not denied except that the precedents referred to therein are not in the knowledge of the instant objectors/respondents.
(3) Paragraph 3 of the appeal is not correct as it goes. As a matter of fact there was not a single post of BPS-18 grade in all the Islamabad Model Schools/Colleges until 3rd April, 1982 when for the first time only `some' posts viz. 25% of the then existing posts of senior teacher in NPS-17 of those schools/colleges were upgraded under Education Ministry's letter No. F.4-2/82-MS dated ibid vide Copy Annex `OC'. That upgradation of posts for the purpose of recruitment meant the abolition of about 16 existing posts of NPS-17 and creating of 16 new posts in higher NPS-18 grade. The Establishment Division O.M. No.5(i)/6/65-DV referred to under. Serial No. 11 at page-50 of the ESTACODE 1983 may be adverted to in this respect. These newly created 16 posts were to be filled as was mentioned in the same letter, through competition, half by outsiders and the other half by the contestants from the NPS-17 teachers by passing the merit cum-- seniority test. For carrying out these tests two sets of similarly worded Service Rules 1983 were framed by the Ministry. The one for the Islamabad College for Boys of which a copy is placed by the appellant as Appendix `D' with the appeal and the other for the Islamabad College for Girls, under the Ministry's letter No. F.26- 3/79-S.I:, dated 6th August, 1983. According to Rule 6(6) of these Rules the applicants of the given qualifications from the existing staff of NPS-17 teachers and from outsiders were invited through press advertisement and interviewed by the then newly constituted Selection/Promotion Committee and consequently those who were successful were given appointments in the newly created NPS-18 posts. Appellant was one such successful candidate in the interview which was carried out according to the advertisement in the daily `Jang' dated 23rd (sic) June, 1983 of which a copy is Annex. `OB', but she, in consequence was appointed as Vice-Principal on 29th July, 1984.
The instant objectors/respondents 15 and 18 were likewise successful in the same test and were appointed in the NPS-18 grade posts on 1st of February, 1984, 6th of March, 1984 respectively. The remaining instant objectors/respondents 22 and 23 were also successful in the subsequent interview carried out by the Selection/Promotion Committee as per advertisement in the daily "Pakistan Times" dated 25th February, 1984 vide Annex. `OD' and were consequently appointed in the two out of such newly created 16 NPS grade posts. Later on, a third test/interview was carried out as per the advertisement in the Pakistan Times dated 12th May, 1989 vide Annex. `OE' and in consequence Mrs. Shahida Sheikh, Mrs. Parveen Irshad, Mrs. Aysha Moeen and Mrs. Aasya S. Javed (respondents 39 to 42 in the contemporaneous Appeal No. 268(R)/1993 titled: Miss Shaista Pirzada v. Federation of Pakistan. And others) were likewise successful and appointed as NPS-18 grade teachers. Thus the seniority list impugned in this appeal should comprise only such teachers from amongst the erstwhile teachers of NPS-17 grade who were successful in the merit-cum-seniority tests and could alone be accommodated in their quota of only eight (8) posts beside eight (8) outsiders who succeeded in the merit tests carried out simultaneously by the Selection/Promotion Committee. Since not a single post of NPS-18 grade was ever created in the Islamabad Model Schools/Colleges after 3rd of April, 1982, therefore, the 27 extra teachers who have been shown in the impugned provisional seniority list on this ground alone as mentioned in the Ministry's letter No. F.1-86/82-MS, dated 11th October, 1988 (Copy Annex. `OF) that they were promoted (without any interview) on the irrelevant basis of only seniority-cum-- fitness need be eliminated from the impugned seniority list because:-- (a)they are unqualified basically for grade 18 posts under reference and (b)some of them had failed in the merit test: (c)the 16 posts of grade-18 under reference are selection posts for which selection could be made on the basis of merit (but not otherwise) as per the provision for such selection as laid down in the very letter of the Ministry dated 3rd April, 1982 (under which such selection grade 18 posts were created) read with the Rule 6(6) of the Islamabad Colleges for Girls/Boys (Service) Rules, 1983, (d)the promotions of such extra 27 persons being thus illegal, such promotions were in fact ex gratia just' as a favour which create no right, and, (e)they cannot legally be entered in the impugned seniority list and can at the most be assumed as moved avers for the purpose of getting pay of BPS-18 but not the grade 18 and therefore not the second move-over to NPS-19 pay. They legally continue as before the holders of NPS-17 grade teachers posts, (f)Since the provision for promotion to NPS-18 grade posts existed for the teachers in the Ministry's said, letter dated 3rd April, 1982 and the said Service Rules of 1983, therefore, the Federal Government Rules to the contrary were inapplicable in their case.
(4)Paragraph 4 of the appeal is incorrect and not admitted.
(5)Paragraph 5 of the appeal is not correct as per the facts detailed in paragraph 3 above.
(6)Paragraph 6 of the appeal ignores that the impugned seniority list is provisional and not final.
Therefore, no appeal could lay against it and the instant appeal is consequently misconceived.
(7)The grounds stated in paragraph 7 to 20 of the appeal are drenched in repetition and merit less assumption of law and facts and are therefore liable to be ignored as incorrect and inconsequential in the light of the above submissions to the contrary of the instant objectors/Respondents."
This all is being done by the Department in haste and discriminatory manner. On one hand, Department is not inclined to finalise the alleged provisional seniority list and to make it final and, on the other hand, from that provisional list (according to Department) the same persons are being given current charge of Principals ignoring Vice Principals which has also been challenged in separate appeals before us, urging that the juniors are being patronised. With regard to objections of co-respondent on merits of these points we direct the Respondent No. 3 to fmalise the seniority list of teachers excluding. Vice-Principals within three months in the light of objections of Mr. Qazi Abdur Rashid, Advocate appearing for private co-respondents as stated above so that they may meet the objections in view of above cited case reported in PLD 1981 SC 612.
13. Before parting with this order it is necessary to meet the arguments of learned Standing Counsel with regard to Notification SRO-88/(KE)92, dated 25-3-1992 whereby method of appointment, qualifications experience, age limits and other conditions for appointment of the Principals etc., in Federal Government Colleges for Men/Women under the Federal Directorate of Education have been laid down. These Rules have not been implemented and in our view these Rules, in no case could be applicable to Model Schools as it is argued some of these Schools are yet not fullfl edged Degree Colleges like other Boys and Girls Colleges. It was also argued that some Model Schools, classes are taken from 1st right upto 12th class and in some colleges upto degree classes.
Therefore, before changing terms and conditions of the present incumbents in Model Schools entire scheme/system is to be reviewed. In the proposed notification there is nothing about Principals, Head Masters, Seni of Teachers etc., who are working-since more than three decades in B-17, B-18 as Head Masters/Senior Teachers and their merger is also to be taken into consideration but the fact is that terms & conditions of every teacher in his post/cadre be safeguarded for which serious thought is required to be given in view of recent amendments in the Civil Servants Act, 1973 by Civil Servants (Amendment) Ordinance, 1993 where under the following amendments have been made: (1)In section 3 a new subsection has been added namely: "(2)The terms and conditions of service of any person to whom this Act applies shall not be varied to his disadvantage."
(2)In section 10, after the words "in any", the word "equivalent" shall be inserted.
(3)For section 12 the following shall be substituted, namely:- "12.Reversion to Lower Post.--(1.) A civil servant/appointed to a higher post on ad hoc, temporary or officiating basis shall be liable to reversion to his lower post.
(2)No person who is a member of a civil service of the Federation or of an All Pakistan Service, or holds a civil post in connection with the affairs of the Federation shall be dismissed or removed from service or reduced in rank by an authority subordinate to that by which he was appointed.
(3)No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him: Provided that this subsection shall not apply - (i)where a person is dismissed or removed from service or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (ii)where the President or any person authorised by him is satisfied, for reasons to be recorded in writing that in the interest of the security of Pakistan or any part thereof, it is not expedient to give to that person such an opportunity."
It is regretted to note that in comments filed by the Ministry of Education in Appeal No. 269(R)/93, it is stated in ground No. 9 in comments of Misc. Petition No. 159/93 in Appeal No. 267(R)/93 that: "With the change from Public School system to Governmental Institution abolition of the post of Vice Principal was imperative. If the Vice Principals were not given the advantage of only losing their administrative position with somewhat of seniority, the other alternative would have been more serious for what was done would have been that they would have become surplus in the new-fangled set up.
This is clear harassm ent to teaching staff of being declared surplus. They may not be discouraged in this way, just for invoking their rights before this Tribunal which is the only constitutional forum to safeguard the interests of civil servants. There is no denial that the Government is competent to frame Rules, but within the fore-corners of law; and the rules so framed should be just, equitable and not detrimental to the interests of the civil servants guaranteed by the Constitutions. With regard to the terms and. Conditions, on the contrary it is expected that the Ministry of Education shall deal the cases sympathetically.
14. Upshot ok above discussion is that merger of appellants who are Vice Principals (Male/Female) from their regular appointments, their cadre and posts cannot be changed with the result that this action is violative of rules and terms and conditions of service which cannot sustain. In this context, we like to reproduce the advertisement published in the Pakistan Times dated 12-5-19$9 whereby applications were invited for different cadres and appointments made by adopting procedure include:--
(1) Principal (Male) B-19,
(2) Vice Principal (Male) B-18.
(3) Senior Teacher (Selection Grade) (Male) B-18.
(4) Senior Teacher S.G. (Female) B-18
(5) Senior Teacher (Male) B-17.
(6) Senior Teacher (Female) B-17.
(7) Junior Teacher Selection Grade B-17
(8) Junior Teacher B-16.
(9) DPE (Male) B-16.
(10) DPE (Female) B-16.
We also refer to the Amendments in the Civil Servants Act, 1973 made vide Ordinance No. XXXVIII of 1993 dated 18-10-1993. Section 3(2) is relevant and is again reproduced hereunder: "The terms and conditions of service of any person to whom this Act applies shall not be varied to his disadvantage."
15. We, therefore, direct that seniority list of Vice Principals continue to be maintained separately as it was done upto 1992. Merger of these appellants in seniority lists of teachers is illegal and without jurisdiction. All the five appeals on point of law succeed without going into the question of determination of seniority on merits. Since all the five appeals have been accepted, the stay application also stands disposed of.