ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C. P. No.D-46 of 2011.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

17.02.2012.

1. For orders on office objections.

2. For Katcha Peshi.

Mr. Ghulam Dastagir A. Shahani, advocate for petitioners.

Mr. Abdul Hamid Bhurgri, Addl. A. G., assisted by Mr. Ameer Ahmed Narejo, State Counsel, alongwith Muhammad Ramzan Chandio, District Education Officer, Shikarpur and Ghulam Nabi Buriro, District Education Officer (Elementary), Shikarpur.

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This is a petition by 38 petitioners, who have stated that they were employed on contract in 2007 for a period of 03 years and worked as Chowkidars/Naib Qasids in various schools in Shikarpur District. They have stated that they were paid salaries till December, 2009 and thereafter payment of salaries to them was stopped. This petition was filed by them for seeking direction to the respondents to release their salaries.

2/- In the comments submitted by the department, it is stated that petitioners No.1, 2, 32, 36, 37 and 38 never joined. Regarding rest of the petitioners, it is stated that they continued working till 03.01.2011. It is also stated in the comments of the E.D.O that their appointment was erroneous.

3/- It is submitted by the learned Addl. A. G., that they were employed on contract for 03 years. However, learned Counsel for the petitioners states that the contract was extended by the Chief Minister for another 06 months.

4/- We have gone through the record.

5/- As far as petitioners No.1, 2, 32, 36, 37 and 38 are concerned, it is claimed in the petition that they joined and it is stated in the comments that they never joined. This is a question of fact and questions of fact obviously cannot be decided in exercise of constitutional jurisdiction. Consequently, the petition to the extent of these petitioners is dismissed. They shall, however, be at liberty to seek their remedy in accordance with the law.

6/- As far as other petitioners are concerned, it is admitted position by the department that they worked till 03.01.2011. Consequently, they are entitled to salary and benefits for the period till 03.01.2011. In Zahid Ahmed v. Province of Sindh through Secretary to Government of Sindh Education and Literacy Department, Karachi and 4 others, 2012 PLC (C.S.) 124, the matter was of similar nature, where it was claimed that the persons had been recruited in violation of rules without approval of vacancies and in excess of approved strength and had been allowed to continue to work by subordinate functionaries. The petition was disposed of in the following terms :-

“Authority given to a public servant is a sacred trust and the public servant is required to perform his duties honestly and diligently. If any wrong is being committed by his subordinate, it is his duty to ensure that not only the act of wrong is brought to an end but also the delinquent officer is taken to task in accordance with the rules. On the other hand, it is also his responsibility that none of his subordinates is being unfairly treated or denied any of his service rights and if it happens it is his duty to raise hue and voice to high heavens so that the grievance of his subordinates is redressed according to law. If the public servant does not act in accordance with the above principles, either he is complicit or is merely negligent and, therefore, must be burdened with requisite consequences. This was the principle followed by a single Bench of this Court in WAPDA through Superintending Engineer & another v. Presiding Officer, Sindh Labour Court No.VII and others, 1998 PLC 180. In the present case, if the petitioner was working without lawful authority and without being properly appointed, it was duty of E.D.O to take concrete and positive steps and not mere perfunctory whimpering of a letter and if the petitioner, being lawfully appointed, was not being paid salaries it was duty of the Headmaster to raise the loudest possible voice. Both of them failed in their duties and, therefore, must bear the consequences. It is, therefore, ordered that current salary of the petitioner be paid on regular basis by deducting 50% of it from the salary of the E.D.O. and the other 50% from the salary of the Head Master. The E.D.O. and the Head Master are directed to take steps for initiation of appropriate action to determine whether the appointment of the petitioner is in violation of law and if the petitioner is guilty of any misconduct, take disciplinary action against him in accordance with the law within three months. Arrears, if any, shall depend upon the final result.”

7/- Same is the position in the present case. Consequently, as far as petitioners other than the petitioners whose numbers are mentioned in para 2 hereinabove, this Constitutional Petition is disposed in the same terms and respondent No.1 is directed to ensure that the arrears of their salaries are paid to them within a period of one month.

8/- If the petitioners are aggrieved by discontinuance of their service, they shall be at liberty to seek remedy in accordance with the law.

JUDGE