ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Constitutional Petition No.D- 1040 of 2022.

Date of hearing Order with signature of Judge.

1.For orders on M.A. No.2119 of 2023.

2.For orders on M.A No.2120 of 2023.

20.12.2023.

Petitioner is present in person.

Mr. Munwar Ali Abbasi, Asstt: A.G., along with Mr. Gulsher Soomro, Director, School Education(Primary), Larkano and Mr.Anees-ur-Rehman, District Education Officer (Primary, Larkano and Office Superintendent, DC Office, on behalf of Deputy Commissioner, Larkana.

O R D E R.

Pursuant to directions contained under previous order Messrs Gulsher Soomro, Director Schools Education Primary, Larkana, Anees-ur-Rehman, DEO (Primary) Larkana and Office Superintendent on behalf of Deputy Commissioner, Larkana, are present and file their respective statements alongwith Teachers Recruitment Policy 2012 Round-3, under cover of statement dated 20.12.2023, taken on record. Per statement of Deputy Commissioner, Larkana in the year 2012 there was no composition of any recruitment committee, therefore, the case in hand does not pertain to his domain, however, seeks specific directions regarding prayer so made by the petitioner.

2. Learned Asstt: A.G., assisted by the Director Schools Education (Primary), Larkana, submits that reserved seat for minority is still lying vacant therefore, there is no directive by the department regarding her recruitment. When confronted with the dicta laid down by the learned Apex Court, they submit that no such order was communicated to their office; however, they are bound to obey the directives/dicta law laid down by the Honourable Supreme Court. The Director, School Education, on a query of the Court, admits that the post is still lying vacant; however, submits that time may be given to them to process the case of petitioner and after seeking approval/permission from competent authority may issue the appointment order in favour of petitioner.

3. Petitioner present in person submits that since the respondents have admitted her qualification as well as merit, besides the minority seat is still lying vacant, for the Director, School Education present before the Court, after consulting with the dicta laid down by this Court in C. P. No.D-1992/2014 re-Mst. Saba Ali v. P.O. Sindh & others, which was maintained by Hon’ble Supreme Court of Pakistan in case of Province of Sindh through its Secretary Education & Literacy Department, Government of Sindh and others v. Saba Ali Arain, therefore, she is entitled to be appointed being qualified/eligible candidate. The Director, School Education, further admits that co-candidate, namely, Zoya Abbasi had secured same marks which the petitioner had secured; however, Miss Zoya was given appointment being senior to the petitioner, besides her qualification was higher than the petitioner. He further admits that reserved seat is still lying vacant and petitioner can be accommodated against said seat subject to approval from competent authority.

4. We have gone through the averments made in the petition, the submissions advanced by learned Asst. A.G. as well as statements made by the respondents in their comments. We are fortified with the dicta laid down by learned Bench of this Court at Hyderabad vide C. P. No.D-1992/2014 re-Saba Ali v. P.O. Sindh & others, wherein learned Bench while dealing with identical issue has allowed said petition in following words:

“It is surfaced that policy with regard to appointment of minority and disable is of general in nature and DRC was required to consider case of disable and minority as first with preference however, we are unable to understand that when it is not disputed that in UC there were need of two Teachers then how in name of mere policy or non-availability of a minority candidate the same can be kept lying vacant? This would need no reiteration that need of teacher is meant for educating the children. The need of teach for ‘education of children’ normally should not be kept hanging for an indefinite more particularly when undeniably ‘need’ in UC exists and continuing. The fact of standing of the petitioner at Sr.No.2 in ‘order of merit’ is also not disputed therefore, peculiar situation demands that right (need) of children to be educated is otherwise guaranteed by Article 25-A of Constitution. Besides, the aim and object of policy was / is to educate children by making appointment on merit. Accordingly the instant petition is allowed. Respondent No.4 Director of Schools Education, Hyderabad Region at Hyderabad shall issue appointment to petitioner within one month with compliance report.”

5. Above order was assailed by the respondents before Hon’ble Supreme Court of Pakistan through CPLA No.11-K of 2017 and the learned Apex Court after hearing the parties and while dismissing the said CPLA vide order dated 06.09.2017 has laid down esteemed dicta whereby the order passed by learned Bench of this Court at Hyderabad in the case of Saba Ali(supra) was maintained. It will be appropriate to reproduce the esteemed order passed by Hon’ble Supreme Court, which reads as under:

“Two vacancies for Junior School Teacher (JST) were advertised for U.C Manhoro along with other vacancies in all over the Province of Sindh. One post was for minority/disabled persons and the other was for general candidates belonging to that Union Council. On the minority seat, no candidate applied and it is lying vacant. Respondent, who stood on second number in the merit list, was directed to be appointed by the learned High Court vide impugned judgment. Learned High Court has rightly observed that this is a teacher’s seat, which needs to be filled up immediately to educate children and no teacher’s vacancy is to be lying vacant for an indefinite period. We do not see any error in the impugned judgment, which calls for our indulgence. Accordingly, this petition is dismissed and leave is declined.”

6. In view of the dicta laid down by Apex Court, it seems that there is no legal impediment which may deprive the petitioner from her appointment or forbid the respondents to appoint the petitioner on reserve seat. Accordingly and in view of above legal position, the listed application is hereby converted into an application u/s 151, CPC and is allowed in the terms stated above. Office to assign proper number to the application as per institution. The respondents are directed to issue appointment order in favour of petitioner against minority reserved post, which is lying vacant, within one month under intimation to this Court. The officers present undertake to make compliance. It may be observed that non-compliance of the Court order shall be deemed as defiance which tantamount an offence in terms of Article 204 of the Constitution of Islamic Republic of Pakistan 1973. A copy of order shall be sent by fax today to Director Schools Education (Primary) Larkana Region, Larkana as well as Secretary, School Education and Literacy Department, Sindh, Karachi, for compliance. A copy of order may be provided to learned A.A.G for correspondence and compliance.

JUDGE