FAZAL ELAHI EJAZ AND 22 OTHERS vs GOVERNMENT OF THE PUNJAB AND 13

' AFTAB HUSSAIN, J.-This order will dispose of L. P. As. Nos. 130, 132, 133, 134, 135, 136, 137 and 138 of 1975.

The brief facts are that on the 15th of March 1972, the Government of Pakistan announced the Educational policy outlining the scheme for nationalisation of privately managed Colleges and schools. For implementation of this policy, Martial Law Regulation No, 118 was promulgated w. c. f. 1st of April 1972, para. 4 of the Regulation provided that w. e. f. 1st of September 1972, all privately managed colleges together with all property attached to them shall vest in the Central Government, if they are situated in the Islamabad Capital Territory ; and in the Provincial Government if they are situated in a province. Para. 5 deals with the nationalisation of the privately managed schools, but the policy of nationalisation in cases of such institutions was different from the policy adopted in respect of privately managed colleges. While para. 4 made it clear that all the colleges in Pakistan without any exception would stand nationalised w. e. f. 1st of September 1972, para. 5 of the Regulation left it to the discretion of the Central Government in respect of schools situated in Islamabad Capital Territory and the Provincial Government in any other case to specify by a notification in the official Gazette issued at any time on or after the 1st day of October 1972, the privately managed schools which will vest in it with effect from 1-10-1972. It was further provided that such taken over schools shall vest in the Central Government or, as the case may be, in the Provincial Government together with all property attached to it.

2. The Punjab Government issued a Notification No, S. O. (M. S.) 1-2-1972 dated 30-9-1972 specifying the privately managed Primary, Middle and High Schools which stood nationalised as from the forenoon of the 1st day of October 1972, under para. 5 of the Martial Law Regulation No,

118. Since para. 5 of Martial Law Regulation No, 118 provided for issue of such a Notification on or after the 1st day of October 1972, the Notification dated 30th of September 1972 was given a legal cover and was validated by Punjab Ordinance, Temporary Enactment Act VI of 1973. All the colleges, thus, by virtue of para. 4 of the regulation and the schools described in the notification issued under para. 5 of the Regulation stood nationalised with effect from 1st September 1972 and 1st October 1972 respectively.

3. Para. 3 of the Regulation prohibited any person from owning or managing a privately managed college or a privately managed school, from closing such college or school or in any manner alienating, selling or otherwise transferring any property attached thereto, and all contracts or agreements made on or after the 15th of March 1972 relating to the alienation, sale pr transfer or otherwise of any contract of any such college or school, were declared void. Similarly para. 6 prohibited the owners or managers of such colleges or schools from making any change in the terms of any contract made by him or any of his predecessors with any person with regard to the premises of such college or school or to any property attached to it and all such changes made on or after the 15th of March 1972 were declared void. By para. 9 the respective Government was substituted as a party to the contract relating to the management of such college or school. This para., however, stands deleted by section 2 of Martial Law Regulation No, 118 (Punjab Amendment Ordinance, 1972) which was enforced on the 31st of August 1972. Para. 10 similarly transferred the rights, property, assets, liabilities, debts and obligations of the owner or manager of such college or school in so far as they related to the Management of such institution, to the Central Government or Provincial Government, according as the college or school was situated in Islamabad Capital Territory or in a Province. This para. Has also undergone a change by virtue of section 3 of Martial Law Regulation No, 118 (Punjab Amendment Ordinance), 1972 and as per amended para. 10 only rights, properties and assets and not liabilities, assets and obligations stand transferred to the Government concerned.

4. The provision which has a pivotal importance in these cases is the provision of para. 7 which as originally constituted read as follows :- "7.-(1) No person who owns or manages a privately managed college or a privately-managed school shall-

(a) employ or engage any person for the purposes of the college or school, other than a person who was so employed or engaged immediately before the 15th day of March 1972 ; or

(b) save as otherwise provided in sub-paragraph (2) change the terms and conditions of service of any person in his employment immediately before the 15th of March 1972.

(2) As from the 1st day of October 1972, the teachers of all privately managed colleges and privately managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the colleges and schools maintained by Government are entitled."

' Para. 7 was amended by the Privately Managed Schools and Colleges (Taking Over) Punjab Amendment Ordinance, 1976 which was enacted as Punjab Act VII of 1976. The provisions as amended are as follows : "7.-(1) No person who owns or manages a privately managed college or a privately managed school shall-

(a) employ or engage any person for the purposes of the college or school, other than a person who was so employed or engaged immediately before the fifteenth day of March 1972 ; or

(b) save as otherwise provided in sub-paragraph (2) or except with the prior permission of the Provincial Government change the terms and conditions of service of any person in his employment immediately before the fifteenth day of March, 1972.

(2) As from the 1st day of October 1972, the teachers of all privately managed colleges and privately managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the colleges and schools maintained by Government are entitled : ' Provided that, with the general or special permission of the Provincial Government, any person may be promoted, employed or engaged, on such terms and conditions as may be approved by the Provincial Government, against a newly created post or a vacancy caused by the retirement, or expiry of the stipulated period of employment, or termination of services in accordance with the terms and conditions of employment, of a person who was employed or engaged before the fifteenth day of March 1972."

5. Para. 7 (1) placed an embargo on employment or engagement of any person for the purpose of the colleges and schools other than a person who was so employed or engaged before the 15th day of March 1972 and also prohibited the making of any change in the terms and conditions of the persons who were already in employment on the above date. Subpara. (2) of para. 7 afforded protection to the teachers of all privately managed colleges and privately managed schools in regard to their scales of pay and it was provided that such teachers shall be entitled to the same scale to which the teachers of equivalent qualification, seniority and experience in the colleges and schools maintained by Government are entitled.

6. It is admitted on behalf of the Government that all the teachers of the privately managed colleges and schools to whatever cadre they belonged became civil servants with effect from the date of taking over of the colleges and the schools i,e, 1st of September 1972, in case of teachers of privately managed colleges, and 1-10.1972 in case of the teachers of the privately managed schools. Two Notifications were, however, issued by the Governor of the Punjab ; one in regard to the Principals, Professors and Assistant Professors of the Colleges, and the second in regard to the appointment of Headmasters and Headmistresses. By Notification No, S.

0. (N. S.) 1-1-72 dated 24th October 1972, the appointment of Headmasters and Headmistresses in the schools under Martial Law Regulation No, 118 was notified on ad h9c basis subject to the following conditions :

(1) That their appointment as such would not give them any, right to these posts ;

(2) That they would not be entitled to claim seniority on the basis of this Notification over their colleagues in the cadres of Headmasters as well as Senior English Teachers ;

(3) That this Notification would not preclude Government from taking any further action such as examining their suitability for appointment to these posts

(4) These appointments will last until their suitability is finally determined or they are replaced by suitable officers.

7. The appointment of all the petitioners in Writ Petition Nos. 993-S/1974, 337-S/1975, 501-S/1975 and 1558-S/1974 was notified by this Notification. Only those persons were not notified who were either unqualified to hold the posts of Headmasters (were not B. A., B. Ed.) or had already reached the age of superannuation. On the 22nd of May 1974 the Director of Public instructions, Punjab, issued Circular Letter No, 12793/M. B. Dated 22-5-1974, the relevant portion of which is reproduced t "As you are already aware, the fixation of pay of those Senior English Teachers who were working as Heads of Nationalised High Schools on or before 30-9-1972 was deferred, pending determination of their seniority. As decided, a combined seniority list is to be prepared of all the Headmasters/Headmistresses of Nationalized High Schools with the Senior English Teachers of High Schools ; Headmasters/ Headmistresses of Middle Schools and Headmasters/Headmistresses of Junior Model Schools and their Senior English Teachers who possess the requisite qualifications of the post. The basis for determining the seniority is the total length of service in the grade, cordoning gaps in service to the extent of 5 years. The Liaison Officers of District Pay Verification Committees may be asked to submit the lists by the 3rd June 1974, with complete biodata. The President of the District Nationalized Schools Teachers' Association should also be associated in the completion of the exercise. As for Lahore, a special committee has been constituted to prepare the seniority list."

' This policy letter may be considered to be a direction for decategorisation of the Headmasters/Headmistresses of the privately managed schools, whose appointment had been notified by the Notification dated 24th of October 1972. The petitioners in L. P. A. No, 130/1975 challenged the vices of this Circular Letter by Writ Petition No, 993/1974 on the 18th of October 1974.

8. The Governor of the Punjab promulgated Punjab Nationalised Schools (Men and Women Sections) reaching Posts Rules, 1974 on 26-9-1974. Proviso to sub-rule (1) of rule 4 of these rules provided that a person holding the post of Headmaster or Headmistress of a High School at the time of nationalisation of school and possessing qualification prescribed for the post of Senior English Teacher, shall be deemed to have been appointed as Senior English Teacher. In sub-rule

(2) of rule 4 the method of recruitment to the posts of Headmasters or Headmistresses was laid down. It was laid down that total number of posts of Headmasters or Headmistresses of High Schools shall be filled by selection from among the persons holding posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) and Headmasters of Middle Schools and thereafter 85 per cent. Vacancies occurring in such posts, shall be filled by selection from among the persons holding the posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) and Headmasters of Middle Schools under these rules with not less than 8 years service as such, and the remaining 15 per cent. Of such vacant posts shall stand abolished from the cadre and stand transferred to the appropriate cadre of the teachers of the schools maintained by Government. Provisions were also made for filling the posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) and Headmasters of Middle Schools, in the existing vacancies. It was directed that existing vacancies shall be filled by promotion from amongst the persons who possess the qualifications prescribed for the post of Senior English Teachers but are holding lower posts under these rules and thereafter 50 per cent. Of the vacancies occurring in such posts, shall be filled by promotion from among the persons referred to above and the remaining 5 per cent. Of such vacant posts shall stand abolished from the cadre and stand transferred to the appropriate cadre of the teachers of the schools maintained by the Government. The posts of Senior Vernacular Teachers, Oriental Teachers and Junior Vernacular Teachers falling vacant in the cadre stand abolished from that cadre and transferred to the appropriate cadre of teachers of the schools maintained by the Government. Three cadres were created by rule 3 (2). Posts of Headmasters and Headmistresses of High Schools were borne on the Provincial cadre, posts of all types of Senior English Teachers and Headmasters of Middle Schools were borne on the Divisional cadre and posts of Senior Vernacular Teachers, Oriental Teachers, and Junior Vernacular Teachers were borne on the District cadre. It was provided in rule 5 that appointment to the posts of Headmasters of High Schools shad be made by the Government and to the posts of Senior English Teachers, Senior English Teachers (Technical), Senior English Teachers (Commerce) would be made by the Divisional Director, Education. Rule 6 deals with the seniority Inter se of the persons appointed to posts in various grades.

9. The appellants in L. P. A. No, 130/1975, therefore filed an amended Writ Petition No, 997/1974 with a view to challenge this Notification also.

10. The other Headmasters similarly affected by these rules filed Writ Petition No, 337-S/1975 (now L.

P. A. No, 132/1975), Writ Petition No, 501/1975 (now L. P. A. No, 133/1975), Writ Petition No, 1538-S/1974 (now L. P. A. No, 134/1975 and Writ Petition No, 993-S/1994 (now L. P. A. No, 131/1975 (which has been withdrawn). In all these cases, the rules of 1974 were challenged as being ultra vices of the provisions of para. 7 (2) of Martial Law Regulation No, 118 mainly on the ground that this para. Protected the right of the Headmasters to hold the same posts which they already held and entitles them to the salary of Headmasters in the same scales of pay to which the Headmasters of the schools maintained by the Government are entitled. This being the common plea, it is unnecessary to give facts of each case.

10-A. Some of the Letters Patent Appeals arise out of writs filed by the college teachers who are similarly affected by the decategorization policy and rules made under para. 13 of Martial Law Regulation No,

118. The relevant facts of the cases of college teachers are that on the 4th of September 1972, the posts of Principals of Intermediate and Degree Colleges and Professors were created by Notification No, S.

0. (N. C.)-G/3-72 of even date. The petitioners in all the above writ petitions were appointed to their respective posts by the said Notification since they were already holding identical posts in the privately managed colleges. It was however clarified that : ''These appointments are on purely temporary basis until further orders and subject to the approval of the Public Service Commission and the Constitutional provisions regarding the age of Superannuation, citizenship and such rules as may be passed in regard to the service conditions of the said staff by the Government."

' On the 15th of May 1974 a Notification was issued by the Government in partial modification of the Notification dated 4-9-1972 and all other Notifications issued from time to time. By this Notification the Government appointed persons mentioned in Schedules 'A and B' attached thereto as Lecturers w. e. f. 1-9-1972. Regarding their pay it was provided that they will draw the same pay for the month of September 1972 as was drawn by them immediately before 1-9-1972. With effect from 1-9-1972 the pay shall be fixed in scale 17 (in the scale of Rs, 450-50-1,000) on the basis of the pay last drawn by them immediately before nationalization of their institutions plus any increment which may have accrued to them on or prior to 1-10-1972. On the 26th of September 1974 were framed rules under paragraph 13 of the Martial Law Regulation No, 118, known as Nationalized Colleges (Men and Women Sections) Teaching Posts Rules, 1974. The following cadres of service were created by these rules t

(a) Principals of Degree Colleges and Professors.

(b) Principal of Intermediate Colleges and Assistant Professors.

(c) Lecturers.

(d) Directors of Physical Education.

(e) Librarians.

' The right of determining the number of posts in each cadre was retained by the Government. Rule 5 appointed all teachers of nationalised colleges whether principals of degree Colleges/Professors, Principals of Intermediate Colleges/Assistant Professors or Lecturers, only as Lecturers provided they were below the age of 58 years on the 31st of August 1973 and possessed qualifications and other conditions of eligibility prescribed by Government and the Government Colleges. Rule 6 provided for appointment to the posts of.-

(a) Principals of Intermediate Colleges and Assistant Professors, and

(b) Principals of Degree Colleges and Professors.

' Total number of posts of Principals of Intermediate Colleges and Assistant Professors were directed to be filled by selection from among the persons holding posts of Lecturers including those who were deemed to have been holding such posts in the nationalized Colleges and thereafter 75 per cent. Of the vacancies in the cadre were to be filled by selection from among the persons holding posts of Lecturers. Under these rules the remaining 25 per cent. Vacant posts shall stand abolished from the cadre and transferred to the appropriate cadre of Colleges maintained by Government. Similarly the total number of posts of Principals of degree Colleges and Professors were directed to be filled by selection from among the persons holding posts of Principals of Intermediate Colleges and Assistant Professors. Provision was also made for vacancies occurring in the cadre later on. 55 per cent. Of the vacancies are to be filled by selection and 45 per cent. Of the vacancies to be abolished from the cadre. Rule 7 deals with seniority. Writ Petitions Nos. 1176- S/1975, 2088-S/1974, 990-S/1974 and 920-S/1974, out of which arise L. P. As. Nos. 135, 136, 137 and 138 of 1975 respectively have been filed to challenge these rules on the same ground as the rules regarding the teachers of schools have been challenged.

11. The above writ petitions filed by Headmasters along with Writ Petitions Nos. 993-S/1974, 1199- S/1974, 531-S/1974, 2138-S/1974, 337-S/1975 and 501-S/1975 were dealt with together and were dismissed by the learned Judge in Chamber on the 21st of July 1975. Writ Petitions Nos. 920-S/1974, 990-S/1974, 2088-S/1974 and 1176-S11975 were dismissed by a common order passed on the 21st of July 1975 on the same ground on which the Headmasters' writ petitions were dismissed.

12. It was held by the learned Judge-in-Chamber that except in regard to the validity of the Rules of 1974, all other matters were within the exclusive jurisdiction of the Tribunal set up under the Punjab Administrative Tribunal Act, 1974 read with Article 212 of the Constitution. The learned Judge found that the above rules though ultra vires of Martial Law Regulation No, 118, could be framed under the provisions of Civil Servants Act, 1974 and could be treated to be valid under that provision but they could not be deemed to be valid under para. 13 of Martial Law Regulation No,

118. The learned Judge-in-Chamber took into consideration the provisions of Articles 240 of the Constitution and 280 (3) of the Interim Constitution. It was held that by virtue of Article 280 (3) of the Interim Constitution, Martial Law Regulation No, 118 was an existing law, and if rules bad been framed before the promulgation of the Constitution of 1973, these rules would also have continued to remain in force by virtue of the provisions of Article 241 of the Constitution of 1972. But these Rules could not be framed later under para. 13 of Martial Law Regulation No, 118 to determine the terms and conditions of the Civil Servants in view of the provisions of Article 240 cf the Constitution (1973) which provides such conditions to be determined by an Act of the Provincial Legislature. Martial Law Regulation No, 118 although held to have effect of a law as made by an appropriate Legislature, was held not to be an Act of the Provincial Assembly as contemplated by Article 240 ; it was treated an existing law only, a category different from an Act of the Provincial Assembly. Reference was made to Article 143 for justifying the distinction between an 'Act of Provincial Assembly' and an 'existing law'. It was, therefore, held that only those rules regulating the terms and conditions of service can be considered valid which are made under an Act of the Provincial Assembly.

13. After hearing the arguments of the learned counsel for the parties, I do not find myself in agreement with either of the two dicta laid down by the learned Judge-in-Chamber i,e,-

(1) that the above rules are ultra virei, if considered to be rules under para. 13 of Martial Law Regulation No, 118 ;

(2) that rules framed under one enactment can be deemed to be valid under another enactment.

' It may be stated that Mr. Mahmood Ali supported the first proposition but argued against the second one, while the counsel for the respondents challenged the first and justified the other proposition.

14. Reliance of the learned Judge-in-Chambers is mainly on Article 240 of the Constitution and Article 143 for a supposed distinction between an existing law and the law made by an act of Parliament or the Provincial Assembly. But in my view it is unnecessary to interpret the language of Article 240 of the Constitution by invoking the distinction drawn from Article 143.

15. Article 240 provides that subject to the Constitution, the appointments to and conditions of service of persons in the service of Pakistan, shall be determined in the case of services of persons and posts in connection with the affairs of a Province by or under an Act of the Provincial Assembly.

16. Martial Law Regulation No, 118 was declared by Article 280 (3) of the Interim Constitution of 1972 "to have become an Act of the appropriate Legislature". It is not denied that the appropriate Legislature in respect of the matters dealt with in this appeal is the Provincial Assembly. Clearly, therefore, Article DO (3) of the Interim Constitution declared Martial Law Regulation No, 118 to be an Act of the Provincial Assembly. As an Act of the Provincial Assembly it has been continued as an existing law by Article 268 of the Constitution. Being a law specified in the Sixth Schedule its alteration, repeal or amendment is possible only with the previous oanction of the President or the Governor if power of President is delegated to him. Now it is an admitted fact that no adaptations have been made in this Regulation either by the President or the Governor, non any amendment has been made by the Legislature in para. 13 which deals with the rule-making power of the Governor. Pars. 13 of the Martial Law Regulation No, 118 is, therefore, an existing law.

17. Article 240 of the Lonstitution is subject to the other provisions of the Constitution. It cannot, therefore, be said that the Article has the effect of repealing by implication any other enactment dealing with the terms and conditions of civil servants. If the interpretation to the contrary be given to Article 240, the opening words "subject to the Constitution" in that Article will have to be treated as superfluous. This would be contrary to the well-settled principle of interpretation that in construing the provisions of a statute efforts should be made to avoid a construction which renders any part of the statute as redundant or surplus. As held in Rafi-ud-Din v. Chief Settlement and Rehabilitation Commissioner (1) : "No legislative enactment, according to the universally accepted principle, should be held to be redundant or superfluous, and efforts must be made by Courts to give effect to every enactment." This principle of interpretation applies equally to interpretation of a Constitution. In Khair Bukhsh Khan Marri v. The State (2) the rule was affirmed that it is a fundamental principle of the interpretation of Constitution that it should be so construed that no part of it should become superfluous, void or insignificant.

' Article 240 will therefore be read subject to other provisions of the Constitution which deal with terms and conditions of service.

18. In a Full Bench case of A. M. Khan Leghari v. Government of Pakistan (3) the West Pakistan High Court observed .That it is the duty of the Courts to interpret the Constitution as an organic whole giving due effect to its various parts and trying to harmonise them so as to make it an effective and efficacious instrument for the governance of the country. In view of this settled principle the words "subject to the Constitution" have to be given a definite meaning.

19. These words are certainly not without meaning since there are definite constitutional provisions in regard to the terms and conditions of service. The Constitution deals with the appointment and certain terms and conditions of employment of Chief Justices and Judges of the Supreme Court and High Courts, Attorney-General of Pakistan, Advocate-General for the Provinces as well as the appointment of some other Officers. This is one of the cardinal principles that the Constitution of a country enjoys supremacy over ordinary laws. The framers of the Constitution cannot be expected to let such laws have precedence over permanent provisions of the Constitution. The permission to make a law in regard to matters already[ partly covered by the Constitution in a particular field must therefore necessarily be subject to the provisions of the Constitution. The object of maintaining the superiority of the Constitution can be achieved only in this manner. This is one of the reasons why the provisions of Article 240 have been made "subject to the Constitution".

Applying this analogy it will be clear that if there be any statute which has been specifically protected by the Constitution and which deals with the terms and conditions of service of any category of employees, it must remain in the field independently of the law made in pursuance of the powers granted by Article 240. If it is

(1) PLD 1971 SC 252 (2) PLD 1968 Quetta 62

(3) PLD 1967 Lab. 227 ' not so held it would result in an anomalous situation creating an irreconcilable conflict between the two provisions. Now such conflict according to the settled principle of interpretation has to be avoided and efforts have to be made to bring about reconciliation between such laws and to make them stand together. The words "subject to the Constitution" therefore must be read as protecting such a provision also notwithstanding the law made under Article 240 of the Constitution. This is the only method by which the repugnance between the two statutes can be avoided.

20. The intention of the Constitution-makers is also clear from the language of Article 275 of the Constitution which makes a provision for continuance in office of persons in service of Pakistan on the same terms and conditions as were applicable to them in the Interim Constitution of Islamic Republic of Pakistan immediately before the commencing day. This transitional provision which is to remain operative till law is made under Article 240 is also "subject to Constitution". If the intention of the Constitution-makers had been to let the law made under Article 240 relate to the entire body of terms and conditions of persons in service of Pakistan despite the provisions dealing with at least some of the terms and conditions in the Constitution itself or in any statute protected by the Constitution it would be unnecessary to make this Article "subject to the Constitution". The language of Article 275 (1) ensures that the terms and conditions of persons in service of Pakistan may not be governed only by law framed under Article 240 but also by other statutes protected by the Constitution or by the provisions of the Constitution.

21. Now reference may be made to the provision of Article 268 which comprises of seven sub- Artistes. This provision makes the intention of the Legislature further clear. Sub-Article (1) of Article provides that all existing laws shall continue in force so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. This provision is subject to two conditions i,e,-

(a) "Except as provided by this Article" ; and

(b) "Subject to the Constitution".

' The first exception was necessitated in view of the protection granted to the laws specified in the Sixth Schedule inclading Martial Law Regulation No, 118 about which it is provided that they cannot be repealed, altered or amended except with the previous sanction of the President (sub-Article (2)). It also authorises the President by sub-Article (3) to bring the existing laws in accord with the provisions of the Constitution within a period of two years whether by modification, addition or omission. By sub-Article (4) the President is authorised to delegate such powers upon the Governors of the Provinces in respect of laws relating to matters with respect to which the Provincial Assembly has power to make laws. The powers exerciseable by the President or his delegate under sub-Articles (3) and (4) are, however, subject to the provisions of an Act of the appropriate Legislature. Sub-Article (5) provides that although the President and his delegatee have been conferred jurisdiction to make adaptation in existing laws within the period fixed by the Constitution yet the powers so exerciseable are subject to an Act of the appropriate Legislature.

Despite this overriding power vested in the Legislature, the laws specified in the Sixth Schedule remain unamenable, unalterable and unrepealable except with the previous sanction of the President. Such condition is not attachable to a law that may be made by the appropriate Legislature under Article 240 of the Constitution. In view of these provisions, it is not possible to rely upon a principle of implied repeal of law. The law being unrepealable except in the manner provided, the principle of implied repeal, which otherwise also is to be generally avoided, cannot be applied. Martial Law Regulation No, 118, as stated above, is one of the existing laws specified in the Sixth Schedule which remains unalterable, unrepealable or unamenable except with the previous sanction of the President. This being the constitutional provisions, it has to take its course despite the provisions of Article 240 or any law made under that Article.

It may be seen that sub-Article (1) of Article 268 is also hinged with the condition "subject to the Constitution". These words are not found in sub-Article (2) which makes, inter alia Martial Law Regulation No, 118, unrepealable. The words "subject to Constitution", therefore, in sub-Article (1) have a sense limited to the provisions of the sub-Article and cannot be extended to the provisions of the second sub-Article which thus remains unqualified by any such condition. I am, therefore, of the view that the provisions of Martial Law Regulation No, 118 shall remain in force side by side with and despite the provisions of any law made under Article 240 for so long as the same are not altered, amended or repealed by the, competent Legislature with the previous sanction of the President.

22. Reference may also be made to Article 269 of the Constitution which has the effect of validating inter alia Martial Law Regulation No,

118. This Article declares Martial Law Regulation and Martial Law Orders made between 20th of December 1971 and 20th of April 1972, notwithstanding judgment of any Court, to have been validly made by a competent authority and incapable of being called in question in any Court on any ground whatsoever. This validation clause had to be added because of the decision in Asma Mani v. Government of the Punjab (1). In view of these provisions, there is no justification for holding that the rule-making power under para. 13 of the Martial Law Regulation No, 118, can no more be exercised after the promulgation of the present Constitution. If a contrary view is taken, it will have to be held that para. 13 stands impliedly repealed.

23. The argument on the basis of Article 143 does not appeal to me That Article does not deal with any distinction as such between existing laws on the one hand and laws that may be made under the Constitution. It only deals with inconsistency between the Federal and Provincial laws and provides that if any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Parliament which Parliament is competent to enact or to any provision of any existing law with respect to any of the matters enumerated in the concurrent legislation list, then the Act of Parliament, whether passed before or after the Act of the Provincial Assembly, or as the case may be, the existing law shall prevail and the Act of the Provincial Assembly shall to the extent of repugnancy be void. The distinction if any between an existing law and a law to be enacted in future is for the purpose of that Article. It does not create a permanent cleavage between the two categories of law. The same statute may be an existing law as well as the law of the Provincial Legislature. In regard to Martial Law Regulation No, 118 it has already been noticed that it is existing law and by Article 280 (3) of the Interim Constitution it was declared to have been an "Act of the appropriate Legislature". It has also noticed that the appropriate Legislature in regard to the Martial Law Regulation

(1) PLD 1972 SC 139 ' No, 118, so far as the present proceedings are concerned, is the Provincial Legplature. For the purpose of the colleges and schools which are the subject-matter of these Appeals it is the law of Provincial Legislature, Martial Law Regulation No, 11E, is therefore a Provincial Statute too.

' The Provincial Assemblies under the Interim Constitution and the Constitution of 1973 are not two different Assemblies. The question whether the National Assemblies in the Constitutions of 1956 and 1962 were different came up for consideration in Badrul Haq Khan v. The Election Tribunal, Dacca (1). In that case it was urged that the Representation of the Peoples Act, 1957 was not applicable to the Election to the National Assembly elected under the provisions of the Constitution of 1962 since there were fundamental differences between the National Assemblies dealt with by the two Constitutions. This contention was repelled. It was held:- "The last argument advanced by Dr. Nasim Hassan Shah was that the National Assembly elected under the 1962 Constitution is so different from the National Assembly conceived under the Constitution of 1956 that necessarily the Act of 1957 which was enacted for the contemplated Assemblies under the 1956 Constitution could have no effect in relation to the new Assemblies. The point before us is one for disqualification for a Legislature, and it has already been seen that a disqualification based upon the fact of being a Government Contractor is within the fundamental concept of the New Constitution being in line with a closely similar provision in the Basic Democracies Order, which forms the very foundation of the structure of the existing franchise. Dr. Nasim Hassan Shah enumerated the differences between the Legislatures contemplated under the 1956 Constitution and those which have been brought into existence under the 1962 Constitution, and it cannot be denied that there are considerable differences. But at the same time, he was unable to deny that the place given to the National Assembly in the constitutional structure by the two Constitutions is exactly the same. In the 1956 Constitution Article 43 provided that "there shall be a Parliament of Pakistan consisting of the President and one house to be known as the National Assembly." The parallel provision in the 1962 Constitution is in practically the same terms, for it reads..

' There shall be a Central Legislature of Pakistan which shall consist of the President and one house to be known as the National Assembly of Pakistan.

' Each of the two National Assemblies is one composed of Representatives of the people, and together with the President is to constitute the Central Legislature or the Parliament of Pakistan. It is true that the mode of election to the National Assembly has been changed by the Constitution of 1962 and the number of its members has been halved. It is true that its powers are different from those of the 1956 National Assembly since they are adapted to the working of a Presidential system of Government. But these circumstances do not avail to deprive it of the character of being a special body of men returned by the electors to make laws for the entire country subject to the assent of the President. The composition of an Assembly can be changed from time to time by alteration of constituencies and the

(1) PLD 1963 SC 704 ' number can be increased and even reduced by laws made under the existing Constitution. The basis of the franchise may be altered, by extension or restriction. The mode of election may be varied. The membership is liable to change from time to time. But all these circumstances do not avail to prevent the Assembly from continuing to be that body which is intended by the Constitution to sit with the President to make laws for the country as a whole. The question which is posed by this argument is whether references to the "National Assembly" contained in the Representation of the People Act of 1957 have become unmeaning with reference to the existing thing namely, the new National Assembly. It seems plain that the answer must be in the negative, for both in substance as well as appearance the new National Assembly performs very much the same function in the Constitution of 1962, as the proposed National Assembly under the 1956 Constitution. It is not a case of the Act being extended to something which was not known when the Act itself was passed. If one can conceive of all Legislatures constituting a genus, there can be no doubt that National Assemblies are entitled to be regarded as a species of this genus, and so categorized it seems impossible to deny that the National Assembly of Pakistan under the 1962 Constitution belongs to the same species of Legislatures as did the National Assembly of Pakistan under the 1956 Constitution."

23. Applying these principles to the Provincial Assemblies under the Interim Constitution and the Constitution of 1973 it will be clear that both Assemblies are Provincial Assemblies and the existing law of a Provincial Assembly cannot form a category different from that of law to be enacted by the Provincial Assembly in future except in a case whether the reference in the Constitution is only to the future law. The categorization in Article 143 cannot be generalized but should be considered to be confined to the purpose of that Article. It cannot be called in aid for creating a permanent split between the two categories so as to make them run into parallel lines.

24. There is no legal justification for holding that a rule under one statute can be validated as a rule under another enactment. A rule-making power in an enactment is given for the purposes of carrying out the purposes of that particular statute. The authority to make rules is delegated by the parliament or the Provincial Assembly to particular authorities. In each case, the rule-making powers are considered to be subordinate legislation as they are subordinate to the enactment under which they have been framed. If the rule framed under one enactment, is considered by the Court to be a rule under another enactment, which was never in contemplation of the rule-making authority, though the same authority may have the power of rule-making under both enactments, the Courts will be considered to be substituting themselves for the rule-making authority under that enactment. This is certainly not the object of law. The question whether a rule has been made within the powers granted by a particular enactment or is within the four corners of that enactment, can be considered only with reference to that particular statute. If the rule-making authority under different statutes feels inclined to frame the same rule under that statute, it must be left open to that authority to frame such rule and not to force a rule framed under another enactment upon such authority. Para. 13 of Martial Law Regulation No, 118 authorises to make, by Notification in the official Gazette, such rules as appear to be necessary and expedient for carrying out the purposes of this Regulation. If para. 7 (2) is treated to be a condition of service affording guarantee or protection of continuity of service and salary to the teachers of the privately managed colleges and privately managed schools, the existence of this rule-making authority would be necessary for carrying out the purposes inter alia of that sub-para. The rights having been conferred by the Regulation the power to make rules must flow in the nature of things from the same statute. The rule-making power given by another statute will be generally confined or linked to the provisions of that enactment by which the powers are given. Rules framed under para. 13 of Martial Law Regulation No, 118 cannot therefore be treated as rules under Civil Servants Act, 1974.

25. I also do not agree that the power of declaring a rule ultra vires of a law is the exclusive prerogative of the Courts as distinguished from Tribunal or Courts. Article 212 of the Constitution authorises the appropriate Legislature to establish Administrative Courts or Tribunals in respect of inter alia matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. Once such Tribunals or Courts are established, the jurisdiction of all the Courts to grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends, is barred. The above Article does not give finality to the decision or order of the Tribunal but provides for appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal, though the Supreme Court can exercise the appellate power on being satisfied that the case involves a substantial question of law of public importance and after grant of leave to appeal. By virtue of Article 212 matters which are exclusively within the jurisdiction of an Administrative Tribunal or Court established by Legislature under that Article cannot be entertained by any other Court. The jurisdiction of all other Courts is excluded completely provided the proceedings in which such question arises, is within the jurisdiction of the Administrative Court or Tribunal. I enquired from Mr. Mahmood Ali and the other learned counsel to cite any authority or principle in support of the proposition that notwithstanding such exclusive jurisdiction the Administrative Court or Tribunal cannot go into the vires of the rule framed under any statute. No such authority or principle was cited.. No proceedings over which an Administrative Tribunal's jurisdiction extends can consequently be entertained by any other Court merely on the ground that the matter involves determination of the vires of any rule or statute.

26. The Administrative Tribunal or Court has complete jurisdiction in respect of the proceedings within its exclusive jurisdiction. The ouster of the jurisdiction of the ordinary Courts including the High Court in respect of the matters within the exclusive jurisdiction of the Administrative Tribunal or Court, is so complete that even the orders of the Administrative Tribunal cannot be assailed either by a suit or by a writ petition. See Muhammad Aslam Bajwa v. Federation of Pakistan (1). See also Faizullah Khan v. Government of Pakistan (2) (in which it was held that High Court or other ordinary Court have jurisdiction only in matters not amenable to the jurisdiction of the Service Tribunal Orders passed by the Administrative Tribunal or Court can be interfered with by the Supreme Court subject to the grant of Special Leave to Appeal. Such Court or Tribunal can, therefore, give a finding of the validity of the rules framed under a particular statute, if the question arises in connection with any matter within its exclusive jurisdiction.

(I) P D 1974 Lab. 565 (2) PLD 1974 SC 291

27. Now I may consider a preliminary objection on behalf of the respondents that matters about reduction in rank and salary raised in their petitions by the appellants are within the execlusive jurisdiction of the Service Tribunal and as such these writ petitions are not competent. The question is whether the rules by which the Headmasters have been relegated to the position of Senior English Teachers and the Principals and Professors have been made Lecturers, are not within the jurisdiction of the Tribunal to decide. For this proposition, the provisions of the Punjab Administrative Tribunals Act, 1974 have to be referred. Section 4 of this Act deals with the details of those matters which cau be dealt with by the Tribunal. It provides for appeal against any final order, whether original or appellate made by a Departmental Authority in respect of any of the terms and conditions of the service of a civil servant including disciplinary matters. The appeal is thus competent against final orders. The argument of the appellants in this connection is that there being no executive order passed by a Departmental Authority against the appellants, no appeal is competent before the Tribunal and as such the jurisdiction of this Court is not taken away.

According to the argument of Mr. Mahmood Ali, the appellants have been reduced in rank by subordinate Legislation and not by order. There being no provision of appeal against a subordinate Legislation, the petitions to challenge the said Legislation were competent in law, Aricle 212 notwithstanding. In support of the argument that where appeals are not competent under section 4 of the Administrative Tribunals Act, the jurisdiction of the civil Courts or the High Court is not excluded, the learned counsel for the appellants relied upon the cases of Faizullah Khan v.

Government of West Pakistan and Saghir Ahmad V. Federation of Pakistan (1). In these cases it was held that the jurisdiction of ordinary Court or High Court is not ousted under Article 212 of the Constitution in regard to matters not amenable to the jurisdiction of the Service Tribunal.

28. There is no cavil with the latter proposition. The High Court's jurisdiction is not barred if a certain matter though it may relate to terms and conditions of service is not within the jurisdiction of the Administrative Tribunal. But I hesitate to agree with the proposition that there is no order so far by a competent Authority. It is not denied that the power to appoint a Headmaster or Principal or the Professor vests with the Government. Similarly the power to reduce in rank of any such appointee also rests in the same authority. The rule-making power under para. 13 of the Martial Law Regulation No, 118 also vests in the Provincial Government. Thus the authority to make the subordinate Legislation as well as the authority to pass orders of appointment or of reduction in rank in cases of appointments is the same. The orders of appointment of the above-mentioned teachers were, as seen above notified in the official Gazette. Similarly in case of Professors and Principals etc. Notification was issued on 15-5-1974 reducing them to the rank of Lecturers. The rule- making power under para. 13 is also exerciseable in a similar manner by publication in the official Gazette. The authority passing orders of appointment or reduction in rank being the same and the manner of issuing orders or making effective rules being similar, it will amount to making a fetish of a rule to say that it cannot consist of orders. This is well settled that executive orders or instructions issued by the appropriate Government can be regarded as being in the nature of statutory rules provided they area

(1) PLD 1976 SC 287 ' expressed with precision and yet possess generality so as to be capable of application to a large number of persons. Province of the Punjab v. Ch.l Nazir Hussain (1) approved in appeal in PLD 1960 SC 130, Pakistan v. Abdul Hameed (2), Province of West Pakistan v. Din Muhammad (3), Government of West Pakistan v. Azra Feroze Bakht (4). Mukhtar Ahmad v. Government of West Pakistan (5). Habib-ul-Rahman v. West Pakistan Public Service Commission (6), Faiz Ullah Khan v.

Government of West Pakistan. The reasoning in the case of Mukhtar Ahmad v. Government of West Pakistan is much more elaborate. It was observed at page 853 of the report :- "Thus, the order of the Government dated the 1st June 1965, by which he approved the method of selection of candidates for appointment as Assistant Agriculture Engineers after their successful completion of the training, is an order having the statutory force. Clause (2) of Article 178 of the 1962 Constitution empowers the Governor to make rules relating to recruitment to civil service and civil posts in connection with the affairs of the Province. This clause does not provide that the recruitment rules are to be made in any particular manner, nor does it require previous publication of the rules in the official Gazette. That being so, the Governor's order, dated the Ist June, 1965 prescribing the special method for appointment of 46 candidates to the posts of Assistant Agricultural Engineers was as operative as the Recruitment Rules themselves made by the Governor on the 18th June 1963. By the Governor's aforesaid order, the earlier Recruitment Rules shall be deemed to have been modified so far as recruitment to the 46 posts of Assistant Agricultural Engineers was concerned. In other words, the departure made by the Governor's order of the Ist June, 1965 as regards selection for training and eventual appointment as Assistant Agricultural Engineers amounted to a special rule of recruitment governing these 46 posts only in order to implement the scheme called 'Development of land and provision of machinery for augmenting water supply in West Pakistan'."

' This principle will apply to cases where the method of issuance of order and rules be the same. In such cases a general order can be treated to be a statutory rule if it has the quality of precision.

These cases do not lay down such principles that there can be no general order. The Courts have discovered this rule only to try to validate what may look at first sight as indefensible. If something can be done by a rule and not by a mere executive order, authorities lay down that if the order being of a general and precise nature has the quality of being treated as a statutory rule, it should be deemed to be such a rule and as such valid.

If an order can be treated to be a rule I do not see any earthly reason why the converse should not be true if what is germane to an order has been expressed in the form of a rule. If a rule or part of it is in substance an order expressed and notified in the manner required for an order, for all practical purposes including an appeal it can be treated as an order. I do not see any demonstrable distinction between an order notified in (1 I PLD 1956 Lah. 556 (2) PLD 1961 SC 105

(3) PLD 1964 SC 21 (4) PLD 1968 SC 37

(5) P D 1971 SC 846 (6) PLD 1973 SC 144 ' the official Gazette that all Headmasters of nationalized schools shall be treated as English Teachers and a rule precisely using the same language with a view to achieve the same object.

The rules regarding the reduction in rank should therefore be treated to be orders within the ambit of the word "order" as used in section 4 of the Punjab Service Tribunal Act, 1974. The reduction in rank of Headmasters to the posts of English Teachers by rule 4 of the Punjab Nationalised Schools (men's and Women's Sections) Teaching Posts Rules, 1974, is thus appealable as an order of reduction in rank and reduction of salary under section 4 of the Punjab Administrative Tribunal Act, 1974.

29. The facts in the case of College Teachers are different. By rule 5 of the Nationalized College (Men's and Women's Section) Teaching Post Rules, 1974, all teachers of nationalized Colleges were declared to have been appointed as Lecturers. There is however a specific order of the same character which was notified on 15-5-74 several months before these rules were promulgated.

That order provided for appointment of Principals/ Professors and Assistant Professors of Nationalised Colleges as Lecturers It appears from the Government record that promotions have thereafter been made of Lecturers to the post of Assistant Professors and then of some Assistant Professors to the posts of Professors/Principals. These specific orders are undoubtedly subject to appeal to the Administrative Tribunal and the writ petitions or appeals of College Teachers are not amenable to the jurisdiction of this Court. From whatever view these cases are looked at I have no manner of doubt that this Court has no jurisdiction to grant any relief to the appellants.

30. This disposes of the appeals which are liable to be dismissed. However, I will like to deal with some of the other points raised by the learned counsel for the parties since they had been argued in detail. Before dealing with the main issue about the interpretation of para. 7(2) of Martial Law Regulation No, 118 I may state that the argument of Mr. Irshad Hassan Khan that the Rules of 1974 much less orders could not be given retrospective effect has considerable force. By these rules, as stated above, all the Headmasters have been made Senior English Teachers from I-10-1972 and all Assistant Professors, Professors and Principals have been made Lecturers w,e,f, 1-1-1972 notwithstanding their specific appointments to higher posts made by notification dated 24-10-72 and 4-9-72 respectively. Even if the appointments made on 24-10-72 and 4.9.72 be assumed to have been made on ad hoc basis, they ought to have remained in force till set aside, It is settled law that subordinate legislation such as rules cannot be made P to take effect retrospectively unless the law under which the rules are framed confers such power upon the rule-making authorities. Ata-ul-Rahman Khan v. Province of West Pakistan (1), Government of Pakistan v. S. A. H.

Bokhari (2) and Province of West Pokistan v. Nasir Ahmad Khan (3). A fortiori orders can also not be made to take effect retrospectively to deprive any person of vested right. There is, therefore, force in the argument that the order of reduction in rank whether by rules or specific orders cannot be operative till the date of enforcement of rules or passing of specific orders whichever may be earlier in time.

31. Coming now to the provisions of para. 7(2) of Martial Law Regulation No, 118, I may reproduce the arguments addressed by Mr. R. S. Sidhwa

(1) PLD 1958 Lab. 180 (2) PLD 1961 SC 605

(3) PLD 1965 SC 106 ' and Farooq A. Hassan, Advocates appearing for the uncial respondents In L. P. A. No, 130 of 1975, who argued that para. 7 does not apply to the taken over institutions, whether colleges, or schools.

Mr. Tanvir Ahmed Khan, Assistant Advocate-General supported this argument not as representing Government but in his personal capacity. In his capacity as Assistant Advocate-General be assumed sub-para. (2) to be applicable to teachers of taken over institutions. The learned Advocate-General who addressed the arguments in cases of College Teachers, argued on the assumption that rule 7(2) is applicable to those persons who were the teachers of the taken over institutions before the date of taking over and who continued to be civil servants after the taking over of these institutions.

' Mr. Farooq A. Hassan, and Mr. Sidhwa in support of their argument cited the provisions of para. 7(1) as originally constituted and as amended by Act VII of 1976. They urged that para. 7(i) deals with only the privately managed Colleges or privately managed schools and not the colleges or schools which were taken over. They relied upon the definition of privately managed colleges and privately managed Schools in para. 2 of the Regulation as meaning a College or School maintained or managed by any person or body other than the Central Government, Provincial Government, Municipal Committee, Cantonment Board of any other local Authority and urged that aub-para.

(2) in the absence of any indication to the contrary should also be likewise construed as applying to the teachers of institutions not yet taken over or nationalised.

32. Sub-para. (1) of para. 7 of Martial Law Regulation No, 118 prohibited any manager or owner of a privately managed college or school from employing or engaging any person for the purposes of college or school other than a person who was so employed on engaged immediately before the 15th day of March. 1972, and also from changing the terms and conditions of service of any person in his employment immediately before that date. The embargo on the change of terms and conditions of any person in the employment immediately before 15-7-1972 is subject to the provisions of sub-para. (2) of para. 7 which is as follows. It deals with the terms and conditions in regard to scales of pay granted from the Ist of October, 1972.

"7(2).-As from the 1st day of October, 1972, the teachers of all privately managed colleges and privately managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the Colleges and Schools maintatined by Government are entitled."

' Clause (a) of sub-para. (1) of para. 7 restricts the power of manager or owner of a privately managed school or college, to employ or engage any new employee for the purposes of the College or School after the 15th of March, 1972. This provision is on the same lines as the provisions of para. 6 which declares all changes made in any contract regarding the premises of the College or School or property attached, made on or after the 15th day of March, 1972, as void, or the provisions of para. 3(2) which declares all contracts or agreements entered into on or after the 15th of March, 1972, relating to alienation, sale or transfer otherwise of any privately managed College or School or any alienation as absolutely void. The object of all these three provisions was to maintain status quo in regard to the contracts about the property or about the running of the institutions or employees with effect from the date when the new Educational Policy was declared.

' Clause (b), sub-para. (1) of pars 7 prohibited the change in the terms and conditions of employees on or after the 15th day of March, 1972, with identical purpose of maintaining status quo.

In regard to terms and conditions of employees of taken over schools these provisions were transitional in character. The transition was to be complete after the taking over of the privately managed Schools w,e.f. 1-10-1972 and privately managed Colleges, from 1-9-72. Sub-para. (2) of para. 7 guarantees salary of the teachers of such institutions with effect from a deadline date fixed therein I e. 1st October, 1972. It provides that the teachers of all the privately managed Colleges and privately managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the Colleges and Schools maintained by Government, are entitled. It is clear from a reading of different clauses of sub-paragraphs of para. 7 that sub-para. (I) relates to the bar on engagement of the employees or change of their terms and conditions before the nationalization of the institutions while sub-para. (2) deals with the terms and conditions in regard to scales of pay of teachers of nationalised institutions. The reason why the expression 'teachers of privately managed Colleges and privately manged Schools' has been used in sub-para. (2) of para. 7 appears to be two-fold. Firstly on the date when these provisions were enacted, privately managed colleges and privately managed schools were still under private ownership since they had not been taken over and did not vest in the Government; secondly, the distinction had to be maintained between the teachers of schools and colleges already maintained by the Government and the teachers of the Schools and. Colleges which were to be taken over under Martial Law Regulation No,

118. The expression 'teachers of all privately managed colleges and privately managed schools" has been used in order to accentuate the distinction from teachers of Colleges and Schools already maintained by the Government.

33. That sub-para. (2) of para. 7 is applicable to teachers of taken over institutions, is further' manifest from the provision in this sub-para. Mad for teachers of all privately managed Colleges. It is clear from para. 4 that no privately managed College was left with any private management and all such Colleges were nationalised with effect from 1-9-1972. If the object had been to ensure the conditions of service in regard to scales of pay of teachers of institutions which still remained under private management and control, no provisson would have been made for teachers of Colleges after such institutions stood nationalised without exception. This also appears to be the departmental construction.

34. Nothing turns on the use of the words "subject to the provisions of sub-para. (2), in clause (b) of sub-para. (1) as stressed by Mr. Sidhwa and Mr. Farooq Hassan. These words only connate that teachers dealt with in sub-para. (2), shall be governed by the terms and conditions described in that sub-para. They do not have the force of making the provisions of both paragraphs applicable to identical category of teachers.

35. The next point for consideration is whether the provision of subpara. (2) of para. 7 of Martial Law Regulation No, 118 afforded any guarantee to the appellants in regard to the posts held by them before the taking over of the privately managed schools and colleges. At first sight the language of sub-para. (2) does not warrant any guarantee of status to teachers of the privately managed colleges or schools after the nationalization of the institutions. It seems to guarantee only the salary "to which the teachers of equivalent qualifications, seniority or experience in the colleges and schools maintained by Government are entitled. Mr. Mehmood Ali, however, argued that if the Court once comes to the conclusion that the Headmasters of the privately managed schools after the taking over are entitled to the scales of pay given to the Headmasters of the Government Schools, it would follow that if a person was a Headmaster before 1-10-1972 he must remain a Headmaster since no rule allows the payment of salary of the Headmaster which is a gazetted post to an incumbent of non-gazetted post as that of a Senior English Teacher.

36. Elaborate arguments were also addressed on the question whether this sub-para. Guaranteed in the Headmasters of taken over schools, the salary of Headmasters of Government Schools, to Professors/Principals, the salary of the Professors/Principals of the Government Colleges and to the Assistant Professors/Principals of Intermediate Colleges, the salay of Assistant Professors/Principals of Government Intermediate Colleges. The argument of Mr. Mahmood Ali, Mr. Irshad Hassan and Mr. Wasim Sajjad was that the word "teachers" in sub-para. (2) of para. 7 does not mean that the entire teaching staff of the privately managed schools and colleges, stands reduced after nationalisation to the position of a teacher in the lowest rung of the ladder. The sub para. Only means that whichever post is held by a teacher at the time of take over of the privately managed schools or colleges, he will be entitled to the scale of pay of similar post in the colleges and schools maintained by Government and consequently to the post itself. This principle would be subject only to conditions of qualification, seniority and experience. Thus Vernacular Teacher will be entitled to the salary and post of a Vernacular Teacher, Senior English Teacher to the salary and post of Senior English Teacher, Headmaster to the salary and post of 7 Headmaster, a Professor/Principal of the degree college to the salary and post of the Professor/Principal of the Government Degree College and Assistant Professor/Principal of the Intermediate College to the salary and post of Assistant Professor/Principal of Government Intermediate College. The Government was not, therefore, competent to pay to the Headmasters the salary of Senior English Teacher or to an Assistant Professor or Principal of the Government Intermediate or Degree Colleges the salary of Lecturers or to reduce them to the rank of Senior English Teachers or Lecturers.

37. Mr. Tanvir Ahmed Khan, Assistant Advocate-General and Mr. Farooq Azeem Hassan, who argued the matters pertaining to the Headmasters and the learned Advocate-General who argued the cases of College teachers, urged that since the word 'teacher' includes a variety of teachers from the highest rung of the ladder to the lowest it will not be apposite to consider the cases of Headmasters/Professors, Assistant Professors of the nationalised institutions in juxtaposition with the cases of Headmasters, Professors, Assistant Professors of Government Schools and Colleges.

According to their argument the incidents of status were wholly irrelevant. Only the remuneration was guaranteed and not the status in the comparable job. They bad, however, to concede that it was not intended to reduce a Headmaster to the position of a Vernacular Teacher. The emphasis on this point of the learned counsel appearing for the respondents was on the conditions of "equivalent qualification, seniority and experience." On this basis it was urged that since qualifications of Senior English Teacher and a Headmaster are identical 1,e. B. A. B. Ed., they were rightly put in the same cadre by the decategorization. Similarly, since the qualifications of college teachers from lecturers upward are identical, it was open to the Government to appoint all teachers irrespective of their status, as Lecturers. Notwithstanding these arguments it was not denied that one possible interpretation of sub-para. (2) of para. 7 is that it gurantees to teachers of nationalised schools scale of pay of comparable posts held by them. Thus while fixing salary Headmaster should be equated with Headmaster, Professor with Professor, Assistant Professor with Assistant Professer and Senior English Teacher with Senior English Teacher.

38. In order to find out the intention of the Government at the time of enforcement of Martial Law Regulation No, 118, his Lordship the Chief Justice put certain questions to the Advocate-General.

These questions and their answers are as follows:- Q.-Has any teacher except those who had reached the age of superannuation not been taken in service on the 1st of September, or 1st of October, 1972?

A.-All have been taken in service. Q.-Was any order of appointment of teachers analogous to the orders dated 4-9-1972 in the case of College teachers and 29-10-1972 in the case of Headmasters, passed by the Government?

A.-Such orders were not passed by the Government, but were passed by the Division concerned.

Q.-Was the continuity of service of teachers of taken over schools or colleges broken?

A.-The continuity was not broken. Q,-Was any Headmaster appointed to any post other than of Headmaster or any Principal appointed to a post other than of a Principal?

A.-There are several cases where Principals have not been appointed as Principals.

Q.-Was any information sought on the pro forma about the status and salary of different teachers?

A.-This is correct. Data was collected. Q.-Was the memorandum dated 3-10-1972 issued? A.-Yes, it was issued. Q.-Is it correct that a letter was issued on 2-10-1972 about the Liaison Officers?

A.-Yes.

Q.-Do you admit the statement of Minister of Education which is published in Pamphlet 'End of Misery'?

A.-It is not denied. Q.-Is it correct that in the suit filed by Muhammad Hussain against Umer Hayat etc., a written statement was filed by the Government in which it is recorded that the teachers were taken over in accordance with the status?

A.- it is there.

' These questions and answers establish that all teachers of the taken over institutions were taken in Government service without any break in the continuity of their service. All Headmastrs qualified to hold posts were given charge as Headmasters and others were also given comparable posts with one exception that some Principals were not appointed as Principals.

39. Three douments which prove the thinking of the Government in regard to teachers of nationalised schools were admitted. The first document is Memo. No, 11304 dated the 2nd October, 1972, by which Liaison Officers were appointed for the schools and were directed to prepare the lists in quadruplicate of all the schools record with the assistance of the Headmaster to be signed by the Liaison Officer, Headmaster and next two senior most members of the staff. In paragraph No, 2 of the Memo. It was directed that "the Headmaster (the next senior most teacher if the Headmaster is superannuated) will be handed over the charge and he will be the over all in charge of the institution". The other document is Memo. No, 44/PA/S dated the 3rd October, 1972, in which orientation courses were arranged to re-orientate the outlook of the Headmasters/Headmistresses of the notionalized schools whose services have been taken over by the Government. The third document is a speech made by Mr. Abdul Hafeez Pirznda, the Minister for Education. In this speech he explained the amendments by which paragraph No, 9 of the Regulation in regard to the liability of the Government to abide by the contracts of the owners or managers of privately managed institutions was amended so as to absolve the Government of the liability and obligation of the owners or managers of these institutions. The Minister of Education tried to allay apprehensions of the teachers that these amendments affected them. He made the following points:-

(a) The nationalization was considered for the benefit of the teachers community.

(b) All the teachers of the nationalised colleges who had not been paid their salary and dues from the 15th March, 1972, shall be paid by the Provincial Government.

(c) Full time teachers of nationalized institutions will be considered as permanent Government servants with effect from 1st September, 1972, and the formalities which are normally observed under the Rules of Recruitment will be waived in their cases.

(d) The Government's decision is that with effect from the 1st September, 1972, any lecturer who was receiving a salary of less than Rs, 450 per month will get the minimum of Rs, 450 per month.

Any teacher who was getting pay higher than Rs, 450 per month will be fixed at the appropriate stage in the scale. Subject to the maximum of that scale, to ensure that he does not receive anything less than his existing pay.

(e) The teachers of nationalized colleges will be placed in a separate closed-cadre. Inter se seniority of the teachers in the nationalised colleges will be determined on the total length of service of each teacher rendered in different private colleges.

(f) The superior posts of the cadre of nationalized colleges will be reserved execlusively for teachers of the nationalised colleges, and will be filled up on the basis of seniority-cum-merit from amongst the teachers of the nationalised colleges but the teachers of the nationalised colleges will also be eligible for ex-cadre posts in the Education Department.

(g) It was the desire of the teachers that they may be brought at par with their counterpart in the Government Colleges. The Government has brought them at par with them. "Yet we are giving you the assurance that so long as you have not adjusted yourself to these new conditions we will not try to dislocate you. You should rest assured."

40. There is one other document and that is a written-statement filed by the Government in the suit "Muhammad Hussain v. Muhammad Hayat etc." in which the Government has stated that the teachers were taken over in accordance with their status.

41. These documents go to prove that originally the thinking of the Government was to let the teachers of the nationalised institutions hold the same status as they held before the taking over of those institutions. As regards the salary of the teachers, in accord with the provisions of paragraph No, 7(2), an illustration was made in his speech by the Minister of Education that in the case of lecturers the least salary would be Rs, 450 which is the lecturer's salary but if a teacher who was getting a salary higher than Rs, 450, he will be fixed at the appropriate stage in the scale subject to the maximum of that scale to ensure that he does not receive anything less than his existing pay.

42. These documents are sufficient for holding that the original thinking of the Government was that Headmasters may be appointed as Headmasters and other teachers may be appointed in posts comparable to the posts already held by them. One thing is further clear that the Government considered itself bound to fix the teachers in the scale of pay in which the salary received by a particular teacher before nationalization was being paid. This was illustrated in the above speech by an example that in the case of Lecturers, if he was getting less than Rs, 450 as salary he would be entitled to the minimum of Rs, 450 per month, and it would be ensured that he does not receive anything less than his existing pay.

43. The decision that the position of the teachers of the nationalized schools will be maintained at par with the position held by them before nationalization proves that it was comparable status in which according to the original thinking the teachers were being taken.

44. For this reason I cannot agree with the interpretation of th learned counsel for the respondent that the word 'teacher' would mean teacher of the lowest grade. If the word 'teacher' is considered to mean the teacher of the most inferior status, the Government should have interpreted sub-para.

(2) of para. 7 as meaning a teacher not of comparable status, but a teacher of the !Ast class. But this type of absurdity cannot be attributed to the Legislature. The only other interpretation possible is to categorise teachers in accordance with their status and to guarantee the scales of pay paid to teachers of comparable status in the Government service subject to the teacher being qualified to bold that post in Government service. While fixing the pay therefor regard must be had to the qualifications.

45. The interpretation of the learned Advocate-General would render the guarantee to a mere farce. If the principle enunciated by him is kept in view, it will not be possible for the Government to fix the salary of the teachers keeping in view the principle enunciated in his speech by the Minister of Education. The Headmasters were entitled, according to the Punjab Senior Teaching Posts (National Pay Scales) Rules, 1974, to grade 17 (500-50-1,000)/50-1,250). Senior English Teachers/Senior English Teachers (Technical) are in National Pay Scale No, 14 (350-25-475/25- -600/50-1,250) (Vide the Punjab (Non-Gazrtted) Teaching Staff (National Pay Scales) Rules, 1973).

In regard to the Headmaster of a taken over school who is already getting Rs, 1,000 per month as salary it is not possible to fix him in National Pay Scale No, 14 if it is considered necessary to pay him the same minimum salary which he was getting as a Headmaster before the 15th March, 1972.

Similarly, there is much difference between the scales of pay of Lecturers, Assistant Professors/Principals of Intermediate Colleges and Professors/Principals of Degree College.

Lecturer in Government service is in Grade No, 17 while an Assistant Professor is in Garde No, 18 (1,000-75-1,750). The Professors or Principals of Degree Colleges are in Grade No, 19 (1,800-80- 2200). It will not be possible for the Government to act on its own interpretation as envisaged in the speech of the Minister of Education, by appointing all Professors or Assistant Professors as Lecturers, if they are getting before take over, salary which is more than the maximum of Scale No, 17.

46. Even before the introduction of National Pay Scales the salary of Headmasters was in the Scale of Rs, 450-50-1,000 while that of English Teachers was 300-25-450-30 -750. Similarly the scales of pay of Lecturers, Assistant Professors and Professors were 450-50-1,000, 600-501,200 and 1,700- 100-2,000, respectively. If these scales be considered to be the basis for fixation of salary of the teachers of nationalised institutions, much more difficulty would be created since these scales are low. It may not be possible to pay to a Headmaster of privately managed school even on the basis of these scales, at least the salary received by him prior to the 15th March, 1972, unless he is reverted to the position of an English Teacher.

47. The National Pay Scale Rules were enforced in 1973 and 1974 .After the nationalization of these institutions. No scope is left in them to give to a Senior English Teacher the salary in Scale No, 17, if such teacher held the post of a headmaster. In these circumstances, the only way in which para. 7(2) can be interpreted is that in order to ensure payment to a headmaster scale of salary of a comparable post he must be made to hold the status of a headmaster also.

48. The interpretation that all teachers are to be treated as a class and dealt with accordingly is by itself anamolous. If it is so, then the same procedure will have to be adopted as has been adopted by the Government in the case of college teachers. Thus all persons who are qualified as B. A , B. Ed.

In whatever capacity they serve, will have to be reduced to the status of the lowest class of teachers and appointments will have to be made keeping in view the principle of seniority and experience. The guarantee in that case would merely be of the scale of pay of the teacher of the lowest rank holding the same qualification. This is not the interpretation even of the Government in regard to the school teachers, since the Government has brought the Headmasters down only to the next cadre of Senior English Teachers, though there may be teachers holding B. A., B. Ed.

Degrees who may be holding the post of Vernacular Teachers.

49. The Government's own conduct in this respect is self-contradictory. On the one hand the Headmasters have been reduced to the position of Senior English Teachers and on the other hand the Principals and Professors in colleges have been made Lecturers. No uniform policy has been adopted. This is proof of confusion in the mind of the authorities because of the .Untenability of the first interpretation.

50. The interpretation canvassed by Mr. Mahmood Ali is the only interpretation possible. It is to the effect that teachers of a class in the privately managed schools should retain their status after nationalization and the question of qualification, seniority and experience should be taken snider consideration with respect to the teachers of that class only. This is in accord with the object of this legislation. Despite the departure-made by the Government from this principle, it appears clear that originally this was the thinking and interpretation of the Government. It is for this reason that all persons who were qualified to hold the posts of Headmasters and were actually holding these posts before 1st October, 1972, in the privately managed schools were appointed as Headmasters.

Similarly all Professors/Assistant Professors were so appointed by Notification dated the 4th September, 1972. In the case of 'Muhammad Hussain v. Umer Hayat etc.', the Government conceded that the status was to be retained. It is clear from the letter dated the 2nd October, 1972, that Liaison Officers were appointed and thereafter the appointment of Headmasters was notified.

The Education Minister also had extended all hopes to the teachers of schools and colleges to the same effect. There appears therefore, no justifica. Tion for the Government to fix the salary of a Headmaster as equivalen to the salary of a Senior English Teacher, or the salary of a Professor t the salary of a Lecturer or to reduce them in rank.

51. The learned Advocate-General and other counsel appearing for the respondents urged that the appellants had acquiesced in this arrangement since they had not challenged in the writ petition the Notification of the 4th of September, 1972, or the 24th of October, 1972, which only made ad hoc appointments as Headmasters or Principals, Professors or Assistant Professors. This point is without force since having been appointed as such, the appellants must be taken to have been given a hope that they will remain entitled to the salary of the post in which they were fixed. It was not necessary for them to take exception to something done provisionally since the provisional order may be indicative of the future policy.

52. Certain other objections were also raised by all the learned counssl for the respondents to the maintainability of the writ petition. They are to the effect that the writ petition of the Headmasters is premature since so far there is only an apprehension that their salary will not be fixed in accordance with para. 7(2) or that the matter being contractual the writ petition is not competent.

It is unnecessary to decide these questions in view of my finding that the present petition is barred by Article 212 of the Constitution.

53. Despite my findings on merits in favour of the appellants, I have no option but to dismiss these appeals in view of the bar of Article 212 of the Constitution. I dismiss them accordingly but leave the parties to bra their own costs.

' SASDAR MUHAMMAD IQBAL, C. J.-I agree.