ORDER SHEET

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

Constt: Pett: No: 349 of 2009.

Date Order with signature of judge.

For further hearing.

22.12.2011.

Mr. Ghulam Dastaghir Shahani, advocate for the petitioner.

Mr. Abdul Hamid Bhurgri, A.A.G. a/w Mr. Naimatullah Bhurgri, State Counsel.

Syed Mohammad Ibrahim Shah, D.O Education Kashmore at Kandhkot.

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Advertisement was placed in press on July 18, 2008 by Secretary Local Government Sindh for recruitment to various posts including the post of Cashier/Junior Clerk. The petitioner applied against such post. It is stated in the petition that petitioner was, after due test and evaluation, selected for appointment as Junior Clerk and Offer Letter of his appointment was issued on 07.02.2009 after medical and other formalities, appointment order was issued to him on 04.03.2009. On the same day, the petitioner reported for duty and was taken on duty. In Para N.8 of the petition, it is stated that since then the petitioner has been performing his duty but he has not been paid salary. This petition has been filed with the prayer that official respondents be directed to release monthly salary with all benefits with effect from the date of his joining.

In the comments submitted by respondent No.1, it is stated that the then EDO Education made recruitment and although there were 43 sanctioned posts, he issued appointment letters to more than 150 persons. Consequently, the ex-EDO has been suspended and inquiry has been ordered. Once genuineness of employment of the petitioner is decided, question of salary would be taken up thereafter.

Comments were also subsequently submitted by the respondent No.2. In the comments respondent No.2 interalia stated as under:

“The statement that the petitioner was declared successful on merit is therefore, misleading, hypothetical and unfounded since no merit list has been produced and place on record as part of this petition. Unfortunately all these formalities have been carried out only at the force of a forged and fake appointment letter No.EDO(EduJKSR/Appt:/40/2009 dated 07.02.2009. The statement of petitioner that he appeared in a written test as well as viva voice examination and was declared successful on merit is absolutely incorrect since the committee has neither issued a merit list nor it is approved by the Chairman of the committee i.e. DCO, hence it has not been brought as part of this petition. The non-availability of merit list prove that appointment of petitioner is fake, unjustified and in violation of orders of the Honourable Supreme Court of Pakistan communicated vide SGA&CD Department Government of Sindh Karachi vide No.SO-I(S&GAD)-2/9/93 dated 8^th February 1993.”

This constitutional petition was allowed by judgment dated 30.03.2010, alongwith other constitutional petitions. Matter was taken to the Supreme Court and vide order dated 01.07.2010 Civil Appeals were allowed by the Supreme Court. After quoting from the comments filed by respondent NO.2 (quoted above), the honourable Supreme Court remanded the matter to this Court with following observations:

“While drawing attention of learned counsel for private respondents to the parawise comments, particularly, the above noted passage, we asked him if learned Division Bench considered the facts so disclosed; he candidly replied in negative. When we stressed upon the importance, the sensitivity and the relevance of the above noted statement to have been taken note of before passing impugned order, he readily stated that the matter be remanded to High Court of Sindh for appropriate orders after hearing both the parties. Learned counsel for appellants consented to the above proposition. The other respondent also agreed in that. Accordingly, we allow these appeals, set aside the impugned judgment and remand the matter to High Court of Sindh for fresh decision after taking into account the respective pleas of parties and providing them an opportunity of hearing. This exercise to be completed expeditiously, preferably within two months.”

Mr. Ghulam Dastaghir Shahani submitted that as far as compliance of order dated 19.01.1993 passed by the Supreme Court is concerned, since that order merely required the state authorities to advertise posts before appointment is made and in this case advertisement was placed in press on 18.07.2008, that aspect has been complied with.

Regarding second aspect stated in the order of the Supreme Court, learned counsel referred to an inquiry report submitted alongwith statement by the then EDO Education. In the statement, it is stated as under:

“ We have gone through the parawise comments in question, relevant passage from para 4 thereof is reproduced as under:

“The statement that the petitioner was declared successful on merit is therefore, misleading, hypothetical and unfounded since no merit list has been produced and placed on record as part of this petition. Unfortunately all these formalities have been carried out only at the force of a forged and fake appointment letter No. EDO(Edu)KSR/Appt:40/2009 dated 07.02.2009. The statement of petitioner that he appeared in a written test as well as viva voice examination and was declared successful on merit is absolutely incorrect since the committee has neither issued a merit list nor it is approved by the Chairman of the Committee i.e. DCO, hence it has not been brought as part of this petition. The non availability of merit list prove that appointment of petitioner is fake, unjustified and in violation of orders of the Honourable Supreme Court of Pakistan communicated vide SGA&CD Department Government of Sindh Karachi vide No.SO-1(S&GAD) 2/9/1993 dated 8^th February, 1993.”

In the inquiry, regarding the present petitioner, it is stated as under:

“ The post of Cashier was lying vacant on receipt of appointment order, therefore, the question of allowing join over and above the sanctioned strength does not arise.

Further stated that the appointment was made after adoption of recruitment process vis: Advertisement /Written Test and finalization of merit lists. Copies enclosed and marked as Annexure “D”. However the joining was allowed after verification of appointment orders from competent authority.”

The D.O Education present in Court states that in view of consideration of such inquiry that the petitioner has been recruited on a vacant post and his appointment has been made after adoption of due recruitment process i.e. advertisement, written test and finalization of merit list, he therefore, concedes that the present applicant is entitled to salaries for the period he actually worked. He states that salary bill of the petitioner was not prepared because this petition was pending.

With consent, Director School Education Larkana Region is directed to prepare salary bills of the petitioner and submit them to the District Accounts Officer and to make all efforts to ensure that the salary is released to the petitioner within one month. Adjourned to 26.12.2011. To be taken up at 11.00 a.m.

JUDGE