' SHAHID ANWAR BAJWA, J.---By this judgment we propose to decide C.P. No,D-2298 of 2009 as well as C.P .No,D-726 of 2010 to C.P.No,D-734 of 2010 as common questions of law are involved in these petitions.
2. Facts as claimed in C.P.No,D-2298 of 2009 are, that 200 of the petitioners were appointed as Teachers and the rest were appointed as Peons in District Thatta, under the Sindh Development Social Services Programme (SDSSP). It is stated in the petition that budget for 20082009 and 2009- 2010 was approved by the District Council but salaries of these teachers and peons have not been paid to them since June, 2009. It is further stated that the petitioners are still working. They referred to various documents and registers which they had brought in Court. Learned counsel submitted that it is not available to State authorities to take work from the petitioners and then refuse to make them payments. He further submitted that D.C.O. Is refusing to release their salaries. Mr. M. M. Aqil Awan learned for petitioners in C.Ps.Nos.D-726 to 734 of 2010 (there are approximately 1100 petitioners) submitted that the petitioners were appointed as Feeder Teachers under the name of National Commission for Human Development. He submitted that the petitioners are employees of District Government and are therefore not civil servants. Learned counsel submitted that earlier in C.P. No, D-114 of 2009, the following order was passed.
"Learned Assistant Advocate-General has filed statement stating therein that the District Government Thatta will pay the salaries to the feeder teachers at the rate of Rs,6000 per month up to June, 2009 as per budget provision is allocated for the salaries of 1120 feeder teachers as well as the arrears outstanding against the District on account of their salaries. The statement is signed by the Chairman Zila Education Committee which is taken on record. Learned Advocate for the petitioner is satisfied with this statement and requests that the petition may be disposed of in view of this statement. Iqbal Ahmed, EDO Thatta present in Court states that the salaries of the feeder teachers will be released not more than 15 days from the date of the order. ."
3. Thereafter C.M.A. No,9051 of 2009 was filed and in that C.M.A. It was firstly admitted that petitioners were absorbed as Feeder Teachers and it was also admitted that petitioner were attending classes and they were discharging their duties. This was stated by the Zila Nazim. On the other hand, DCO stated that some of the teachers were not performing their duties and many of them were not attending the classes. Bench noticed that no material had been placed on record either in the comments or otherwise in this regard. The Bench observed that the DCO had not pinpointed those persons who were not qualified. Consequently the Bench issued following direction on 28-9-2009:- "We direct that Zilla Nazim as well as DCO to disburse the salaries to the feeder teachers which has been kept in the budget and have been approved to be disbursed to the Feeder Teachers till December, 2009. The DCO is directed to facilitate this order by taking required steps for disbursement. In case if DCO has any objection in regard to the budget which has been approved and passed, he can approach the relevant authority."
4. Learned counsel submitted that in accordance with the directions issued by the Bench, the petitioners have been paid salaries till December, 2009 and thereafter though the petitioners are working but payment of salaries has been discontinued. Learned counsel referred to extract from the meeting of Council held on 12-10-2009 wherein budget was approved. The relevant extract reads as under:-- "Mr. Ghulam Nabi Babar, Chairman Education Committee pointed out that according to Budget Rules the provision is to be allocated for the expenditure for whole financial year while there is no reason to allocate less amount in the budget for the financial year 2009-10 he added that these employees have already filed petition in the Honourable High Court and the District Government is also facing difficulty in this matter. Therefore he proposed that by exchanging the budget additional provision may be allocated for expenditure in the head of payment of salaries of Feeder Teachers, so that unrestless may add at the part of District Government. The house anonymously approved the proposal and EDO (F&P) is required to take necessary action under budget rules."
5. Learned counsel referred to section 2(16)(a) of the Sindh Local Government Ordinance, 2001 (XVI of 2001) (hereinafter referred to as the Ordinance) and pointed out that under the provisions of the Ordinance, Local Government includes a District Government, a City District Government, Zila Council, Taluka Municipal Administration, Taluka Counsel, a Town Municipal Administration, Town Council, a Union Administration and Union Council. Thereafter learned counsel referred to section 14(1) of the Ordinance and submitted that when this is read with entry (xiii) and (xiv) of the First Schedule it transpires that the subject of boys schools and girls schools and management thereof is a function of District Government and not Provincial Government. He submitted that the object was to tame the bureaucracy and bring it under elected representatives. Learned counsel referred to section 107 of the Ordinance to contend that funds have been established under the Ordinance for the purpose of payment of salaries and other functions by the Local Government. While concluding the learned counsel contended that the jurisdiction of this Court under Article 199 of the Constitution is a public and equitable jurisdiction. Schools are meant for education of students and its very surprising for the Government to contend that teachers were recruited for six months and right in the middle of the year the contract came to an end and the Government would not specify as to what happened to those students. Lastly he submitted that slavery is prohibited in Pakistan therefore, as long as the petitioners are performing work they should be paid their salaries.
6. Mr. Jawaid Mir, who appeared for Administrator District Council, Thatta submitted that while some of the petitioners are teachers however other petitioners are not teachers. He further submitted that the two statements referred to above, in the order made in earlier writ petition were made by persons without any lawful authority. He however, submitted that the orders have been complied with. Learned counsel referred to section 109(5) of the Sindh Local Government ordinance and contended that the expenditure in one year could not have been increased beyond 10% of the expenditure in the previous year. He further submitted that it was essential that the meeting of Federal Budget Development Committee be held before the budget is approved and since no such meeting had been held how budget could be passed.
7. Mr. Adnan Karim, learned A.A.G. Referred to section 4 of the Sindh Local Government Ordinance, to contend that the Local Government must work within the provincial frame work. He also referred to section 28 of the Ordinance which provides that in every District there shall be a District Coordination Officer. Learned counsel referred to notification dated 14-11-2007 in which notification guidelines in respect of recruitment on contract basis were laid down. Learned counsel relying upon Punjab Text Book Board, Lahore v. Muhammad Akhtar Sherani and others PLD 2001 SC 1032 submitted that the question relating to salary cannot be adjudicated upon in jurisdiction under Article 199 of the Constitution.
8. We have considered the submissions made by the learned counsel and have also gone through the record. We may first deal with the objection by the learned AAG. While relying upon Muhammad Akhtar Sherani's case (supra), learned AAG submitted that question relating to payment of salaries cannot be decided by the High Court in exercise of constitutional jurisdiction.
Muhammad Akhtar Sherani's case was a case where the petitioners in the High Court were civil servants and therefore it was held by the Supreme Court that since salary relates to terms and conditions of employment therefore, jurisdiction of the High Court under Article 199 of the Constitution is barred by Article 212 of the Constitution. The case has no applicability to the facts of the present matter because the petitioners in these petitions are admittedly not civil servants.
9. It is contended by the petitioners that they have been working all along and some of them brought registers duly signed by the Headmaster and other Supervisory tiers of Education Department to contend that they are still working. On the other hand, Mr. Adnan Karim and Mr. Jawaid Mir vehemently contended that the petitioners are not working any more. Regarding the attendance registers etc. Shown in the Court both of them submitted that these have been "managed" by the petitioners. It is not specifically denied by M/s. Adnan Karim and Jawaid Mir that such certificates have not been issued. In presence of such a situation, since this Court in exercise of its constitutional jurisdiction cannot take resort to recording of evidence and sifting facts, it would be appropriate to lay down a mechanism for resolving such an issue in the context of this case.
10. However, both Mr. Adnan Karim and Jawaid Mir agreed that if the petitioners are working they are entitled to their salaries. In case of Mst. Zaib-u-Nisa v. Government of Punjab, Department of Education, through Secretary and 4 others, 1995 CLC 1281, grievance of the petitioner who was a teacher was regarding non-payment of salary though she claimed to have been appointed as C.T.
Teacher. It was admitted by the Education Department that petitioner was appointed as a teacher., It was also admitted that salary was not being paid to her but it was contended that the Mayor of the Corporation had made appointment of the petitioner without prior approval of the Government. The High Court observed as under:- "8. In terms of Article 29 of the Constitution of the Islamic Republic of Pakistan, 1973 the respondents are duty bound to act in accordance with the Principles of Policy set out in Chapter 2, Part II of the Constitution in so far as they relate to their functions. These principles include equitable adjustment of rights between employers and employees; to provide for all citizens facilities for work and adequate livelihood; to prove for all persons employed in the service of Pakistan or otherwise Social Security; to provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment. The respondents, by not paying salary to the petitioner for the past more than two years have acted contrary to these Principles of Policy. They exploited the situation and denied to the petitioner her valuable right to remuneration according to her grade which also is in violation of Article 3 of the Constitution which casts duty on the State to eliminate all forms of exploitation and gradual fulfilment of the fundamental principle, from each according to his ability, to each according to his work."
11. Therefore, if the petitioners are working they are entitled to be paid their salaries and they must be paid their salaries. No one, much less the State functionaries, can be allowed to take beggar work from citizens and every employee who works has inherent right to receive his wages. However, Government has full right to satisfy itself as to whether a particular petitioner is working or not.
Since there are almost 1400 petitioners in these petitions obviously this issue must be left to be determined by the Government itself.
12. Mr. Jawaid Mir also submitted that many of the petitioners are not qualified for the jobs that they are claiming to have been doing. Firstly neither Mr. Mir nor Mr. Adnan Karim has placed any material on record to point out as to which of the petitioners are not qualified. In the absence of such material obviously a bland statement by the learned counsel cannot be relied upon for coming to a conclusion that a certain number of petitioners were though not qualified had been given jobs. This aspect can only be resolved by resorting to due process of law and on a bland statement, respondents cannot be absolved of their responsibilities.
13. Mr. Adnan Karim emphatically argued by referring to various provisions of the Sindh Local Government Ordinance, that the employment of petitioners in the fist place and more particular continuation of their employment is without authority. Mr. Adnan Karim was repeatedly asked to point out as to what action had been taken again the government functionary or even against local government functionaries who resorted to such un-authorized acts of recruiting the petitioners in the first place or allowing them to continue beyond the period for which they were authorized to allow them to be continued. Moreover, it has in any case been a Headmaster of school or a District Education Officer who had recruited the petitioners or allowed them to continue.
The two questions must be separately dealt with firstly whether the petitioner is entitled to salary for the period he worked; there cannot be a negative answer to this question. Secondly whether his recruitment or, as the case may be, his having been allowed to continue is without authority or not.
If it is so, as a first step departmental authorities must take action against such functionary who illegally and unauthorizedly recruited them in the first place or allowed them to continue beyond the period for which they were authorized to so allow them in the second place. Thereafter it would be in light of such action that the Government may issue an appropriate order to each individual terminating his employment but only and only in accordance with the law.
14. We are indeed distressed to note the contention that budget was available till December and therefore, the employment was discontinued. When a school is being run it is matter different from a road being built, if budget comes to an end the government would be perfectly justified to stop further construction of the road. However, can the government be permitted to stop a school merely on the pretext that the budget has run out. Are the children to be dealt within the same way as pebbles and tar for the road? Mr. Justice Saleem Akhtar in Employees Union, Jamia Karachi v.
Registrar of Trade Unions, Sindh and 2 others 1981 PLC 403 highlighted the importance of education in the following ringing words:-- "The importance of education can neither be ignored nor denied. Education is designed to guide a man in learning and culture, and mould him towards his eventual role in society. Education through the institutions like schools, colleges and Universities is agent of cultural transmission. Culture depends upon continuity, and these institutions help to provide it by transmitting accumulated knowledge and skills and values and beliefs. Schools, colleges and Universities help in building up character and such qualities as honestly, piety, thrift and industriousness. Besides this they impart knowledge of art, philosophy, science, literature and last but not the least the professional expertise to meet the challenge of time and growing expansion in all fields. From the very inception of lour society prime emphasis has been on learning and education. The learned people and institutions have always commanded high esteem respect and reverence. It is a source of all knowledge and learned where people come to learn and go forth to serve. Education is the fountainhead of all inventions, sciences, technology, research, learning and knowledge."
15. We may also refer to Article 25A of the Constitution of the Islamic Republic of Pakistan introduced in the Constitution through Eighteenth Amendment. The said Article is in the following words: "25A. Right to education.---The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law."
Article 37(b) of the Constitution provided as under: "37. Promotion of social justice and eradication of social evils.---the State shall--
(b) remove illiteracy and provide free and compulsory secondary education within minimum possible period;"
16. It may be noticed that Article 37(b) was in the Chapter relating to Principles of Policy and was not therefore a fundamental right and is not justicable stricto-senso because Principles of Policy do not confer legal rights or create legal remedies and were held to be in the nature of instruments of instructions, or general recommendations addressed to all authorities in the State reminding them of the basic principles of the new social and economic order which the Constitution aims at building. Reference may be made to Ms. Farhat Jaleel and others v. Province of Sindh and others (PLD 1990 Kar. 342). However, now that the Legislature in its wisdom has included right of compulsory education to all children of the age of 5 to 16 years in the fundamental rights, this indicates increased awareness in the society in general and the Legislature in particular regarding importance of mass literacy for sustainable development of the country. We may add here what Nani Palkivala said in one of his articles: "If a nation wants to be ignorant and free at the same time, it wants to be what never has been and never shall 'be". Therefore, now that the education, compulsory and free, has been made fundamental right of every child, if a school is established it shall not be available to the provincial government to discontinue service of a teacher without providing a substitute teacher and it shall also not be available to the government to close a school without first deciding and putting into action a plan for providing education facility to the children who were studying in the school sought to be closed by the government.
17. Here is a case where almost 1500 persons (more than 1000 of them being teachers) employed in various schools are claiming that they have been working and the government is claiming that they are not working any more without government saying a single word as to, at least as far as 1000 of them being teachers are concerned, what alternate arrangements have been made to ensure that children education remains uninterrupted.
18. Keeping in view the above discussion, we therefore order as under:--
(1) Within a period of one month government shall determine in respect of each and every one of the petitioners through a transparent manner and complying with all the principles of natural justice as to whether a particular petitioner has been working or not and if he has been working as to till what date he has been working.
(2) Within 30 days thereafter the government shall ensure that all those who have been working are paid salaries and those who continue to be working or continuously and regularly paid their salaries in accordance with terms of their employment.
(3) Those petitioners who do not possess requisite qualification under the rules be issued a show- causenotice and thereafter action in accordance with the law may be taken against them.
(4) If the school Headmaster or any other person in the hierarchy of education department has, without authority taken work from any person or without authority has allowed him to continue to work, the government may take action against such persons in accordance with the rules and if any such person is found guilty government shall be entitled to recover from emoluments of such person salary that such person had without authority recruited or has without authority allowed to continue.
(5) If the government proposes to dispense with the service of any petitioner the government may act in this regard in accordance with the law but not otherwise.
' With the above directions, these Constitution Petitions are disposed of.