NAIMAT ULLAH BUTT Versus GOVERNMENT OF THE PUNJAB

1. NASIM HASAN SHAH, J.‑ ‑This appeal is directed against the order passed by the Punjab Service Tribunal, Lahore dated 13‑1‑1980, ;hereby the appeal filed by the appellants against the notification dated 19‑3‑1977 issued by the Governor of the Punjab to accord sanction to the upgrading of 93 posts of Assistant Professors in N.P.S.‑18 as Professors in N.P.S.‑19 and 722 posts of Lecturers in N.P.S.‑17 as Assistant Professors in N.P.S.‑18 with effect from 1‑9‑1976 to attain the ratio of 1:6:17 in the cadre strength of Professors, Assistant Professors and Lecturers of Government Nationalized and Provincialized Colleges (both Male and Female) in the Punjab, was rejected.

2. The facts, which form the background of this appeal, are that the appellants were appointed Lecturers in the year 1964 in the Municipal Degree College, Burewala which was under the control of the said Local Council. In the year 1972, the Government framed a policy of taking under its own control all the educational institutions and in so doing, promulgated Martial Law Regulation No. 118 on 1‑4‑1973 whereby all privately‑managed colleges were taken over with effect from 1‑9‑1972. The colleges set up under the control of the Local Councils were not covered by the aforesaid Regulation. However, as a consequence of the general policy, the Governor of the Punjab in exercise of powers conferred by section 21 of the Municipal Administration Ordinance, 1960 and Article 37 of the Basic Democracies Order 1959 transferred the institutions, namely, all the colleges maintained by the Municipal Committees and Town Committees alongwith the members of the staff thereof to the management and control of Government vide notification dated 23‑7‑1973.

3. The aforesaid notification dated 23‑7‑1973, besides transferring the said colleges and the staff to the Government prescribed that the staff of the said colleges shall henceforth be treated as Government servants, the responsibility to run and maintain the colleges shall rest with the Government and no contribution financial or otherwise shall be demanded from the Municipal Committees/ Local Councils. It, however, provided that pension and provident fund contributions made by the staff of the colleges concerned prior to 1‑7‑1973 (the date of being taken over) 'shall be paid by the Municipal Committees/ Local Councils concerned. In this way the matter of maintenance and control of the colleges as also the service of which the staff members of the colleges were members, was completely and finally severed from the Municipal Committees/ Local Councils and taken over by the Government for all intents and purposes.

4. On 3‑12‑1973, the Government of the Punjab issued another notification providing‑‑

(a) the continuation in service of the incumbents of the posts making them subject to constitutional provisions regarding superannuation etc. ;

(b) prescribing that those incumbents would be given pay scales of the corresponding posts under the Government by evolving a formula that pay last drawn by them would be protected by fixing their pay in their scales sanctioned by the Government at a stage equivalent to the pay drawn by them under the local bodies and in case there is no such stage, at the next lower stage, the difference being treated as personal pay to be absorbed in the future increments;

(c) the dates of increments of the incumbents were kept intact;

(d) the incumbents were required to make G.P.F. contribution with effect from the date of taking over namely 1‑7‑1973;

(e) the incumbents were made subject to leave rules of 1955;

(f) the service rendered by the incumbents under the Local Bodies prior to the taking over was to count for pension and the pensionary liabilities were to be shared by the Government and the Local Bodies concerned in proportion to the length of service of each incumbent under each.

5. The case of the appellants is that on the basis of the aforesaid two notifications, namely, notification dated 23‑7‑1973 and the notification dated 3-12‑1973, the terms and conditions of the services of the appellants and other similar employees taken over by the Government became their prescribed terms and conditions of service and they became full fledged Government servants.

6. It is pointed out that thereafter the Education Department of the respondent calculated the number of incumbents taken over on 1‑7‑1973 which were as under:‑

(i) Professors. 7

(ii) Assistant Professors. 19

(iii) Lecturers. 250

7. Total: ‑ 276

8. Out of the above sanctioned posts, the sanctioned posts in the then Municipal College, Burewala, were as under:‑---

9. Professor 1

10. Assistant Professors 4

11. Lecturers 24

12. It is further pointed out that after being taken over (which is described as "provincialisation") more than 60 posts of Lecturers were created in such provincialised colleges. Similarly, during financial years 1974‑75 and 1975‑76, further posts of seventeen Lecturers and 84 Lecturers in NP.S.‑17 were respectively sanctioned.

13. But, according to the learned counsel for the appellants, the Education Department of the respondent after provincialisation started dealing with the incumbents separately. The incumbents, who were already in Government service, were called "Government cadre", the incumbents taken over under Martial Law Regulation No.118 were called "nationalised cadre" and the incumbents of the colleges taken over from local bodies were termed as "provincialised cadre". Besides, the persons recruited against the newly‑created posts, including the posts in the colleges taken over from local bodies were called "general cadre".

14. Finally on 19‑3‑1977, the Secretary Education issued .a notification upgrading 93 posts of Assistant Professors in N.P.S.‑18 as Professors in N.P.S.‑19 and 722 posts of Lecturers in N.P.S.‑17 as Assistant Professors in N.P.S.‑18 with effect from 1‑9‑1976. This was being done in order to attain the ratio of 1:6:17 in the cadre strength of Professors, the Assistant Professors and Lecturers. In this notification separate allocations were made and three separate cadres were shown namely Government Colleges (general cadre); nationalised Colleges (closed cadre) and provincialised colleges (closed cadre) and allocated two posts of Professors and 58 posts of Assistant Professors to the Provincialised Colleges "closed cadre".

15. Feeling aggrieved by this notification, the appellants filed an appeal under section 4 of the Punjab Service Tribunals Act, 1974 before the Punjab Services Tribunal, Lahore. The learned Tribunal vide order dated 13‑1‑1980 dismissed the appeal observing that there was no merger of the services and that no objection could be taken to the said notification unless it was shown that certain guarantees were given which have been violated. Hence this appeal, by leave of this Court.

16. Mr. Abid Hassan Minto, learned counsel for the appellants, in support of this appeal, has submitted that the notification dated 23‑7‑1973 read with notification dated 3‑12‑1973 indicate that the intention of the Government was to merge the Local Bodies services into the Government services for all intents and purposes and that the learned Service Tribunal has fallen into error in observing that the appellants had failed to produce anything to establish the plea of merger. According to the learned counsel, keeping the incumbents of the Local Bodies separate from the incumbents of the Government Colleges frustrates the very purpose of transfer of the services as under the local bodies they were already a separate entity and, therefore, there was no necessity of their being transferred from one service to another. Having been so transferred to keep them frozen in a separate cadre, closed for ever would be detrimental to their service prospects and such a change could not be brought about except by or under an Act of the Provincial Assembly. The same plea was raised in somewhat different words in the appeal filed before the Service Tribunal, namely, "that the notification dated 19‑3‑1977 is bad in law and discriminatory because after nationalization and provincialization of the colleges their teaching staff became employees of the Provincial Government from the inception of their service in such colleges and are at par with the teaching staff of the Government Colleges".

17. Mr. Abid Hassan Minto, however, admitted before us that on 1‑7‑1973 the sanctioned posts of the teaching staff in the Municipal Colleges were as under:‑---

(i) Professors 7

(ii) Assistant Professors 19

(iii) Lecturers 250

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18. Total:‑ 276

19. At present, he further conceded, the position. of posts reserved for the members of the teaching staff from the said Colleges is as under:‑

20. Professors 11

21. Assistant Professors 58

22. Lecturers 143

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23. Total:‑ 212

24. Thus, the number of posts of Assistant Professors and Professors today is more than the number of such posts at the time of nationalization of the Colleges.

25. The real grievance of the appellants, as was candidly accepted before us, is that after nationalisation the number of posts in all categories has increased enormously but by keeping the teaching staff transferred from Municipal and Local Body Colleges to Government service as a "closed cadre" they are deprived of sharing the benefits of the increase to the same extent as other members of the teaching staff in the Government Educational Institutions. The question, therefore, arises as to whether in so doing the Government has violated any of the terms and conditions of service of the appellants?

26. According to Mr. Abid Hassan Minto, since the appellants have become Government servants they should be treated at par with the other Government servants in the teaching departments of the Government in all respects. But he has not been able to support this submission by reference to any law.

27. On the other hand, there does not appear to be any legal limitation on the power of the Government to constitute separate cadres for various categories of its officers inducted into any of their departments. This situation is clearly visualised in the Civil Servants Act, 1974. Thus, for instance, subsection (3) of section 7 lays down:‑

28. "7(3).For proper administration of a service, cadre or grade, the appointing authority shall from time to time cause a seniority list of the members of such service, cadre or grade to be prepared."

29. And again subsection (4) of section 7 provides:‑---

30. "7(4). Subject to the provisions of subsection (3), the seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, shall be determined in such manner as may be prescribed."

31. "Cadre", as is well‑known, is the strength of a service or part of a service sanctioned as a separate unit and each cadre consists of a certain number of posts. There being no legal bar on the authority of the Government to keep the members of the teaching staff transferred from Local Body Institutions to the Education Department of the Provincial Government as a separate cadre and there being not violation of any specific term and condition of the appellants' service no ground exists for interference with the impugned order passed by the Service Tribunal.

32. This appeal, accordingly, fails and is dismissed hereby, leaving the parties to bear their own costs.

33. M.I. /N‑71/S Appeal dismissed.