RANA RIFAT SAEED (MEMBER): --The appeals had been heard on 17-2-1994 and following brief judgment had been announced in the Court: "For the reasons to be recorded, all the four appeals are allowed to the extent that Rule 5 of S.R.O.
No.1097(I)/93, dated 15th November, 1993 is declared ultra vires and suet aside as far as the employees who were regularly appointed under the old Rules of 1983 and 1988 are concerned cannot be sent again to F.P.S.C. For regularisation of their services, and Rules as cannot operate retrospectively in such cases. The result is that such cases shall not be referred to F.P.S.C. For regularisation of their services."
Parties have heard and noted for compliance.
2. The appellant had been working as Vice-Principal (B-18 + charge allowance) in Islamabad Model College for Boys F-7/3, Islamabad and he had referred to orders from the respondent- Department, dated 21-7-1993, whereby he had been redesignated as Assistant Professor. Precisely he had contended that since he had been drawing pay and allowances higher than (B-18), he should have been equated/redesignated as Associate Professor (B-19) after reorganization and not as Assistant Professor (B-18). He had also brought out at bar that senior teachers, private respondents 5 to 9 who had also been drawing (B-18) through Selection Grade and had not yet been promoted on regular basis to (B-18) posts had after reorganization been equated/redesignated as Assistant Professor (B-18) and placed at par with the appellant who had been promoted and had occupied regular post of Vice-- Principal (B-18 + charge allowance). He had added that respondent No.5, Arif Hussain and respondent No. 6, Abdul Hayee had further been given current charge as Principal (B-19) of Islamabad College for Boys, G-6/3 and Islamabad Model College for Boys F-7/3, respectively. This was a matter of grievance with the appellants that they being senior in B-18 to the private respondents, Arif Hussain and Abdul Hayee had not been given the current charge as Principal.
3. The learned counsel had referred to Recruitment Rules notified by the respondent Ministry on 15- 11-1903, wherein, inter alia, in Rule 5, it had been provided that the appellants being the present incumbents of such colleges would be interviewed/tested/selected for their suitability to provide them the held posts/charge posts through recommendations and clearance of the F.P.S.C. The Rule 5 reads as under: "5. The present incumbents shall continue in their service till determination of their suitability in terms of the conditions prescribed in Schedule to this Notification by the F.P.S.C. Provided that: (i)Age qualification shall not be applicable in case of the present incumbents.
(ii)The following incumbents shall be eligible:
(a) Holders of Master's degree in the subject of English for posts in B.P.S. 17 and above.
(b) Diploma holders in the subject of Art and Drawing, for posts in B.P.S. 17 and above;
(c) Bachelor's decree Holders for 'the posts of Junior Teacher (B.P.S.16/17)
(iii)The present incumbents, on their regularization by the F.P.S.C would rank senior to those appointed by promotion or initial recruitment in a calendar year.
(iv)The method of appointment, as prescribed in Rule 2 of these rules shall be applicable to the remaining vacancies after regularization of the present incumbents, against those posts."
4. The appellants had submitted that after possessing a long regular service of 20-30 years at their credit for serving such colleges under the same Ministry of Education they had wrongfully been subjected to re-interview/re--test/re-selection process of the F.P.S.C. Which legally could only undertake initial recruitment/direct appointments to certain posts under Government of Pakistan and to that extent as such Rule 5 of the said Recruitment Rules of 1993 was not in conformity with the F.P.S.C. Ordinance/Act. Accordingly this Rule 5 should be set aside as being non-maintainable and unlawful. The learned counsel had elaborated that, if in fresh interview /tests by F.P.S.C., one of the appellants was not recommended/cleared by the F.P.S.C., he might be thrown out of the service. However, the representative of the respondent Ministry/Department Mr. Muhammad Ismail, AEA. Was of the view that fresh interviews/tests/selections by the F.P.S.C. Were just a formality and the Ministry/Department did not aim at to throw out the present incumbents i.e. The appellants. The representatives from the Establishment Division Mr. Zakaullah Jan, S.O. Had mentioned that the said Recruitment Rules of 1993 had been cleared by the Establishment Division/F.P.S.C., but rule 5 looked to be violative of F.P.S.C. Ordinance/Act and not befitting.
5. The learned counsel and the private respondents 5 to 9 had supported the contention of the learned counsel for the appellants stating that Rule 5 of Recruitment Rules, 1993 was harsh, not maintainable and illegal and opposed to the F.P.S.C. Ordinance/Act. Accordingly Rule 5 should be set aside. But the representative of respondent Ministry (Muhammad Ismail) had reiterated that rule 5 had very carefully been provided in the Recruitment Rules and it was not harsh, as it was never meant to throw out the appellants from service.
6. Learned counsel for the appellant had also drawn the attention of the F.S.T. To the injustice being done by the respondent Ministry/Department by equating the appellants (who had regularly been holding post of Vice-Principal (B-18 + charge allowance i.e. Higher than B-18) with the private respondents (who were senior teachers drawing B-18 through Selection Grade and had not yet regularly been promoted to B-18 post). He had also mentioned that according to fair play, the respondent Ministry/Department should have equated/redesignated the appellants as Associated Professor (B-19). This was an act of injustice by the respondent Ministry/Department and a matter of grievance for the appellants who had made departmental efforts/representations in this regard but these were not acceded to and hence they had come to the learned Tribunal to seek justice, relief and redress of their grievance. He had accordingly requested for acceptance of the appeals.
7. The learned counsel for the appellants had also pleaded that the Rules of 1993 could not retrospectively apply to the appellants who were in service for the last 20-30 years and this restrospective application of rules was mala fide and unlawful. The Ministry/Department if at all wanted they should apply these Rules to the fresh appointees and not to the appellants. The learned counsel had submitted that, even if all the appellants were cleared/recommended after fresh interviews/tests/selections by the F.P.S.C., but the Commission might give/indicate fresh marks/merit list for regularising their appointments and this might disturb their existing inter se seniorities amongst the appellants and others who had been maintaining such seniority positions since long back.
8. The learned counsel appearing for private respondents 5 to 12 had supported the cause of the appellants to the extent of setting aside Rule 5 of the Recruitment Rules, 1993; but had pleaded that the private respondents being senior teachers had been given Selection Grade B-18 through clearance/recommendations of the D.P.C. And it was as good as promotion to B-18 which was also given through recommendations of the D.P.C. Regarding the matter of inter se seniority in-between the private respondents and the appellants he had submitted that it `had very carefully been done by the respondent Ministry/Department after taking into consideration all pros and cons and other aspects and to that extent he did support the appeals.
9. After hearing the parties and examination of the record, we find that Rule 5 of the Recruitment Rules, 1993 was not maintainable and lawful, because the process of re-interview/re-test/re- selection through F.P.S.C. Was harsh and illegal for the appellants who had been occupying regular posts of teachers/ lectures/Vice-Principals etc. From last 20-30 years through a careful process of selections/appointments/promotions and it was unjust, if the appellants after non-clearance and non-recommendations by the F.P.S.C. Would lose their jobs. Lawfully such rules should only be applicable for initial/direct recruitment to be made through F.P.S.C. The fresh process of interview/text by F.P.S.C. And clearance/recommendations thereof might also disturb the inter se seniority positions amongst the appellants and other who would then be involved in litigations/appeals against one another. This shows that such problems were not examined/foreseen by respondent Ministry/Department, while framing/modifying the Recruitment Rules. We accordingly conclude/order to set aside Rule 5 from the Recruitment Rules of 1993, as being harsh, unlawful and void. We shall also direct the respondent Ministry/Department to examine the aspect of inter se seniority of the appellants who have been holding regular jobs of Vice-Principals (B-18 + charge allowance) through promotions vis-a-vis respondents Nos.5 to 12 who have been holding jobs of Senior Teachers B-18 through Selection Grade, because regular promotion to a post in a grade should have an edge over the Selection Grade appointment in the same Grade. But after reorganization, the appellants and the private respondents have all been redesignated as Assistant Professors (B-18) and the seniorities of these two groups viz. Appellants (being Vice-Principal (B-18 + charge allowance through process of promotion) and private respondents being Senior Teacher B-18 through Selection Grade) have been equated/merged. This will not be fair and just solution/preposition by the respondent Ministry/Department, because after reorganization/resignations they should not disturb/downgrade/relegate the substantive status for seniority of the appellants (B-18 + charge allowance) through promotions vis-a-vis said respondents as B-18 through Selection Grade, as same spirit and principles have been held by the Honourable Supreme Court in judgment dated 3-10-1993, while disposing of Civil Appeals 33 to 38 of 1992. Accordingly the respondent Ministry/Department shall prepare a seniority list within next four months and circulate. With these observations/directions we partly accept the appeals and dispose these of. No order for costs. Parties be informed.
ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---In these four Appeals Nos. 428, 429, 438 and 445 (R)/1993 filed by M/s. Muhammad Rafiq Malik, Abdul Rehman Memon, Anwar Ali Khan and Mrs. Rukhsana Tufail, briefly the facts are that appellants are working as Vice-Principals (B-18) in the Islamabad Model Colleges and they were appointed as such in pursuance to the advertisement and by regular selection by the competent authority, i.e. The Board of Governors. On the pronouncement of the judgment of The Supreme Court in PLD 1990 SC 612 (Mrs. M.N. Arshad v. Miss Naeema Khan) wherein it was held that the employees of the Islamabad Model Institutions were `civil servants' and it was also held that the Service Tribunal exercising special jurisdiction in service matters can take cognizance of breach of non-statutory rules/instructions if the same have been continuously and consistently acted upon by the department concerned. Thereafter, department started changing their seniority and terms and conditions of service as such all the four appellants and one Miss Shaista Pirzada filed Appeals Nos. 267, 268, 269, 270 and 271(R)/93, separately, whereby they challenged the combined seniority list framed by the Ministry of Education after the announcement of the judgment, as referred above, merging their cadres of Vice-Principals with the Senior Teachers. The Tribunal by its judgment dated 11-11-1993 in nutshell, held as under: "Seniority list of Vice-Principals continue to be maintained separately as it was done up to 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."
In the same judgment, the department was also directed to review the seniority list of other teachers. It may also be observed that M/s. Muhammad Rafiq Malik, Abdul Rehman Memon and Anwar Ali Khan also filed Appeals Nos. 198, 207, 208 and 211(R) of 1993 wherein they challenged the orders of the Ministry of Education whereunder the Senior Teachers (B-18) were given current charge of the post of Principals while ignoring Vice-Principals and their appeals were disposed of with the direction that Rules should be strictly observed. While these matters were under process, the Ministry of Education vide office order, dated 12th July, 1993 redesignated the Vice-Principals and other teaching staff as Assistant Professors and Lecturers. This exercise was done by the Ministry of Education on the plea that after being declared as civil servants, there were some difficulties from the A.G.P.R. In drawing their salaries and such office order was issued on 21-7-1993: It was argued from appellants' side such redesignation was necessary then the approval of Establishment Division should have been taken, to this objection, the respondent-Ministry failed to provide any document or any order whereby the approval of the Establishment Division was obtained, which is the rule-making body. However, in the meanwhile, statutory Notification No.S.R.O.
1097(1)/93, dated 15th November, 1993 was issued by the Ministry of Education, in pursuance of sub- rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, laying down the method of appointment, qualifications and other conditions for appointment to the posts in the Islamabad Model Colleges for Boys/Girls under the Directorate of Federal Government Educational Institutions. Under Rule 5 ibid, the present incumbents of the posts were to continue in their service till determination of their suitability, and under clause (iii) tile present incumbents, on their regularisation by the F.P.S.C., would rank senior to those appointed by promotion or initial recruitment in a calendar year. It is in this background of the matter that the cases of the appellants and other employee's have been referred to F.P.S.C. For regularisation of their services, and these appeals have been filed as a consequence.
11. There is no dispute that all the appellants were appointed as Vice-- Principals in pursuance to open advertisement and after determining their suitability keeping in view their qualifications and experience etc., by the competent authority, as prescribed under the Rules, and as such their appointments were deemed to be regular made in accordance with the prescribed rules. In view of the judgment of the Supreme Court, the employees of the Islamabad Model Schools/Colleges were declared `civil servants', and as such their terms and conditions were to be regulated under the provisions of Civil Servants Act, 1973 and the rules made thereunder. As a consequence thereof, the Ministry of Education issued a Notification No.S.R.O. 1097(1)/93, dated 15th November, 1993. It is a common factor that rules are always made for the betterment and not to the detriment of its employees, as has been done in this case, whereby the appellants and other employees of the Model Institutions have been required to appear before the F.P.S.C. For regularisation of their services after adjudging their suitability of the posts they are holding, which is surprising as the appellants are working on regular basis since decades and when some of them are reaching their retirement age, and even working Principals they have been put to test by appearing before the F.P.S.C. We are also afraid that in case some of such employees do not come to the yardstick of the F.P.S.C.- they might lose their jobs even as there is no guarantee or safeguard in the impugned notification dated 15th November, 1993, in this respect. We, therefore, have no hesitation in holding that Rule 5 of the S.R.O. Notification, dated 15th November, 1993, is ultra vires and void, because it is a settled law that no rule can operate retrospectively but has to operate and apply to the cases prospectively, and is accordingly set aside and no Rule can be made detrimental to conditions of service which they are enjoying since years. It may also be observed that while arguing the appeals on behalf of the Ministry of Education, Mr. Muhammad Ismail, Assistant Educational Adviser, submitted that reference to F.P.S.C. Of the cases is just a mere formality of the Commission.
We are sorry we cannot expect such a statement on behalf of the Government because the F.P.S.C.
Is an independent and a Constitutional body and it is the discretion of the Commission to select or not to select or clear an employee, as the case may be, under the rules. This matter cannot be confined to this extent, but even the seniority of such employees shall have to be redetermined in accordance with the merits assigned by F.P.S.C. And in that case, the whole superstructure of 700 employees shall be disturbed. It was rightly argued by the learned counsel for the appellants that all this has been done just to frustrate the judgments of this Tribunal already delivered in the appeals filed by the appellants now before us. I, therefore, fully agree with the findings of my learned brother Mr. Rana Rifat Saeed, Member.
12. With regard to appellant and of Vice-Principals as Assistant Professor we may observe that their cases to be considered according to their seniority---cum-fitness and decision be taken within three months so that if aggrieved they could seek legal remedy.