ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Constitution Petition No. D-749 of 2024

(Ali Murtaza and another Vs. G.O.S through Secretary,

Education and Literacy Department and others)

Date

Order with signature of Judge

Before:

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Nisar Ahmed Bhanbhro,

1. For hearing of M.A No.814/2025 (1 R 10 CPC)

2. For hearing of main case.

Petitioner No.1: Through Mr. Muhammad Umar Panhwar, Advocate

Petitioner No.2: Ms. Sheeba Khokhar, present in person.

Respondents: Mr. Liaquat Ali Shar, Additional Advocate General, Sindh.

Date of hearing: 23-04-2025

Date of order: 23-04-2025

O R D E R

NISAR AHMED BHANBHRO J.- Through instant petition, Petitioner Ali Murtaza Khuharo, seeks indulgence of this Court to direct Respondents to release his monthly salary.

2. Ms. Sheeba filed an application being M.A.No.814/2025 under Order 1 Rule 10 read with section 151 C.P.C for impleading her as petitioner No.2. Notice of the application was given to respondents. Counsel for Petitioner and Learned Additional Advocate General, Sindh raised no objection for grant of application. Since case of Intervener / Applicant Sheeba is identical to the case of Petitioner Ali Murtaza, accordingly her application is granted, office to add name of Ms. Sheeba as petitioner No.2 in instant petition with red ink.

3. Case of petitioners is that pursuant to an advertisement published in various newspapers in year 2021, they applied for the post of Primary School Teacher (PST) BS-14, in School Education and Literacy Department, Government of Sindh. Petitioners appeared in the test conducted by SIBA testing service, they got qualifying marks and were declared successful. Education and Literacy Department constituted District Selection Committee (DSC) for the appointment of teachers in each District. Case of Petitioners was placed before DSC, after due scrutiny names of Petitioners were recommended for appointment as Primary School Teacher. On recommendation by DSC, petitioners were issued Offer Order dated 01.08.2023 for appointment, which petitioners accepted. Petitioners appeared before Medical Superintendent, District Headquarter Hospital, Dadu for physical fitness test, they were found fit and such certificate was issued by Hospital.District Education Officer (Primary ) Dadu issued appointment orders dated 11.08.2023 on verification of credentials and antecedent of Petitioners and they were posted in different Schools. Petitioners joined their respective schools on 12.08.2023 and since then they are imparting education, but respondents did not pay them monthly salary, giving them cause to file instant petition.

4. Pursuant to notice, Respondent No.5, District Accounts Officer, Dadu filed written reply, wherein he stated that administrative department (Education in the present case) has not submitted F.O-I form or database in respect of petitioners, therefore, their cases for release of salary are not processed. Accounts Office will process the cases of Petitioners as when requisition is received.

5. Respondent No.3 District Education Officer (Primary), Dadu in his reply has averred that petitioners were given Offer Orders on 01.08.2023, thereafter they joined service on basis of appointment order dated 11.08.2023, but on scrutiny of record, it revealed that degrees issued in favour of petitioners were beyond cut of date, which was 09.04.2021 and their recruitment was in contravention of Teachers Recruitment Policy, 2021, their appointment is not sustainable; hence department has not forwarded their cases for release of salary.

6. Learned Counsel for Petitioner No 1 contended that petitioner No 1 was appointed by adopting due process of law, his credentials were examined by DSC and found correct. Petitioner was recommended by DSC on merits, issue of cut of date has been raised for the first time before this Cour, no any notice has been given to Petitioner to explain this position. Petitioner is on duty since last more than one and half years without any complaint from any corner. He next contended that Petitioners obtained degrees prior to cut of date and respondents have victimized him without any reason. He prayed for allowing of this Petition.

7. Petitioner No 2 Sheeba, who appears in person, repelled the contention of Respondent No 3 that she has obtained Graduation Degree beyond cut off date. She contended that she became graduate in December 2019 and degree certificate was issued to her in year 2021 as during the intervening period offices remained closed due to COVID-19. She prayed for directing Respondents to release her Salary.

8. Learned Additional Advocate General, Sindh contended that last date for submission of online applications was 09.04.2021, the qualification for appointment was graduation and only those candidates were eligible to apply, who had obtained graduation degrees prior to the above date. He drew attention of the Court towards policy guideline No.9(2) of Teachers Recruitment Policy, 2021 and contended that petitioners were not having graduation degrees on cut of date. They were not eligible for appointment; therefore, they were not entitled for payment of salaries and their appointment orders were liable to be withdrawn. The Petitioners are civil servants and salary being one of the terms and conditions of service, they cannot invoke writ jurisdiction of this court. He prayed for dismissal of this petition.

9. Heard Learned Counsel for parties and examined material available on record with their able assistance.

10. Scanning of record reveals that petitioners applied for post of PST pursuant to advertisement published in newspapers in year 2021, with last date for filing of applications as 09.04.2021. Applications of petitioner were accepted, they appeared in test conducted by SIBA Testing Service, Sukkur, they secured qualifying marks and declared successful. Cases of petitioners were placed before DSC for recommendation. Committee scrutinized the academic record of Petitioners, finding them eligible, recommended for appointment. Petitioners submitted their academic credentials during scrutiny before DSC, no adverse findings were recorded in terms of their eligibility or obtaining degrees beyond cut of date. Petitioners have placed on record clarification from Sindh University. For petitioner No.1 Ali Murtaza it has been stated that he obtained graduation degree in year 2016, he had applied for conversion of his degree into B.S program and after conversion he was issued Degree Certificate on 08.09.2021. For case of petitioner No.2 Ms. Sheeba, University of Sindh has issued a clarification through its Controller of Examinations that she graduated in English after completing three years academic program from January 2016 to December, 2019; she passed her graduation in year 2019, but due to COVID-19 havoc, the university was closed per orders of the Government, therefore, degree of petitioner was issued in 2021. This clarification on the part of Sindh University establishes that petitioners have qualified their graduation in year 2016 and 2019 respectively, but were issued degrees late without any fault on their part.

11. It reflects from record that petitioners are in service, no action against them has been initiated by department on account of their qualification or otherwise. District Education Officer has failed to produce on record any proceedings, which might have been initiated against petitioners on account of acquiring graduation degrees beyond cut of date. On the contrary, petitioners have placed on record sufficient material to substantiate that their appointments were within four corners of law. Rule 9(2) of Policy guidelines for Teachers Recruitment Policy, 2021 is reproduced for sake of convenience:

“(2). Only those candidates shall be considered for recruitment, who possess minimum academic and professional qualifications prescribed for the post, domicile, PRC-D and CNIC before closing/cut of date. The academic and professional qualifications, domicile, PRC-D and CNIC acquired after the cut of date will not be considered, and if anyone is inadvertently allowed to appear in the written test and he qualifies the written yet, yet his candidature will not be considered for recruitment.

12. Literal meaning of this rule enunciated that only those candidates were eligible for recruitment having minimum academic and professional qualification prescribed for the post on the date of publication of advertisement and candidates who acquired minimum qualifications after the cut of date were not eligible to apply. In the case of petitioners, they had acquired minimum qualification of graduation prior in time and degree was obtained much before cut of date, they were duly qualified to participate in the recruitment process. In reply to para-3 of petition, respondent No.3 District Education Officer, Elementary, Secondary and Higher Secondary / Primary, District Dadu has stated that degree in favour of petitioner No.1 Ali Murtaza was issued on 08.09.2021 and in favour of Ms. Sheeba, petitioner No.2 was issued on 05.05.2021. Date of issuance of degrees would not be relevant for the purposes of acquiring any qualification; once a person qualifies for a particular degree program, the relevant certificates may be issued within time or later, same would by no means constitute that degree has been obtained on the date when certificate was issued.

13. This Court believes in institutional autonomy. Appointment, Transfer and Promotion matters, are purely related to internal administrative affairs of any institution. Education Department being promoter of literacy is expected to deal with such matters in a transparent and independent manner so that no one is prejudiced in the employment matters. The matters which require a clarification on any point of law should surface before Courts of law, other matters need to be resolved at department level. In the case of Petitioners, it appears that they are working as teachers since month of August 2023, they are not paid salary without intimating the cause for non-payment. Department if found anything adverse against petitioners during appointment process, they should have been put on notice to clarify the same, but nothing happened. The state of affairs regarding payment of salaries of the petitioners does not manifest the culture of good governance in District Education Office Dadu as the authority at the helm of affairs was required to forward the case of new inductees for release of salaries on the very day they resumed duty; delay in forwarding cases of salaries of low paid employees like PST is a sheer example of red-tapism, nepotism, attitude of indifference and ill-will on the part of respondents No.3 which finds support from the reply of respondent No.5, in which it is categorically stated that since last more than one and half years, cases of petitioners for release of salaries have not been forwarded to them on relevant F.O-I form. It is expected that Office of Respondent No 3 shall remain careful in future while dealing with salary issues of subordinate employees.

14. An employee on induction in service is entitled to receive salary, non-payment of salary without due cause is violation of fundamental rights of employee, because salary is not a bounty but it is payment for the work done and employer is under an obligation to release the salaries of employee within time, if the salary is stopped, the employer has to assign plausible reasons and communicate such decision to the employee with promptitude enabling him to adopt due course of law, which lacks in the case of petitioners.

15. Petitioners have placed on record material worth consideration that their appointment fell within the ambit of rule 9(2) of the Teachers Recruitment Policy, 2021 and there was nothing adverse against them, therefore, their salaries cannot be stopped in any manner. When confronted this factual and legal position, Learned Additional Advocate General could not dispel any of them and frankly conceded that Petitioners were duly qualified for appointment, but raised objection as to the maintainability of this Petition as according to him salary was one of the terms and conditions of service and this Court is debarred from adjudicating such issues in terms of the bar contained under article 212 of the Constitution.

16. Adverting to the question of maintainability, we have examined appointment orders of Petitioners, clause (i) of the appointment order dated 11.08.2023 holds that appointment of petitioners was on probation for a period of two years. A probationer is a person who is taken in service subject to the condition that it will attain a sure footing only if during the period of probation he shows that he is a fit person to be retained in service. A person who is on probation is subject to all checks to which a permanent servant is subject. Admittedly there is nothing adverse against the petitioners excepting that their degree certificates were issued beyond cut off date for which the petitioners and concerned university have shown a reasonable cause that offices remained closed due to COVID–19 pandemic for which the Petitioners cannot be penalized as COVID – 19 was a global issue, putting life into a halt. Even then Respondent No 3 was required to inform petitioners reason for not forwarding their salary requisition to Accounts Office, after that Petitioners could have filed departmental appeal and service appeal. The Petitioners at this point, when their services are yet to be regularized, and no final order has been passed with regard to stoppage of salary, have got no other legal platform to agitate their grievance, therefore rightly invoked writ jurisdiction of this Court, and petition is held maintainable.

17. This Court under its writ jurisdiction conferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is custodian of the fundamental rights of the citizens, when it transpires that a person discharging its functions in connection with the affairs of federation or province has violated any of the fundamental rights, the Court will not hesitate to issue writ in the nature of mandamus to ensure that wrong is rectified. The Petitioners being civil servants on probation enjoy protection of law and Respondents being their superiors are required to deal petitioners in accordance with law. Stoppage of salary of Petitioners without any cause, inaction on the part of respondent No.3 is perverse to law, arbitrary in nature and without any lawful authority, tantamount to infringement of fundamental rights guaranteed under articles 4, 9, and 27 of the Constitution. We are therefore of the considered view that it is a fit case for exercise of jurisdiction under Article 199 of the Constitution. Accordingly, instant petition is allowed; the respondents are directed to immediately release salaries of the petitioners within a period of 45 days from receipt of this order.

18. Office is directed to send copies of this order by fax to the Secretary, School Education and Literacy Department, Government of Sindh, Karachi, Director, School Education (ES&HS), Hyderabad Region, Hyderabad and District Education Officer, (ES&HS)/Primary, District Dadu for compliance, non-compliance of the order shall be deemed to be defiance of the Court’s order and if respondents failed to submit compliance report to this Court through Additional Registrar, appropriate proceedings may follow.

Petition stands disposed of in the above terms.

JUDGE

Manzoor