MUHAMMAD YOUNIS THAHEEM, J.- Mst. Shumaila Latif, the petitioner, seeks constitutional jurisdiction of this Court praying: "It is therefore, most humbly prayed that on acceptance of instant writ petition, the respondents may kindly be directed to release / pay the monthly salaries of the petitioner from her date of appointment i.e 23-04-2012 till date and petitioner may also be given present/ current and future salaries for her duties. Any other relief which deems fit and proper according to circumstances of the case may also be granted."
2. Brief and essential facts of the case are that the petitioner applied for the post of PST and submitted an application to respondent No.3, District Education Officer, (Female) Bannu, being qualified for the post and after complying with codal formalities vide order Endst No.4058-4191/AE- 1/Female PST/2012 dated 23-04-2012, the petitioner was appointed as PST at Govt. Girls Community Model School Nusrat Norani, Bannu against vacant post. After obtaining medical fitness certificate, medical certificate and verification of all the testimonials/degree, she assumed the charge on 24- 04-2012. She further averred in her petition that despite performing her duties, till date she was not given monthly salary, for which she was submitted several applications for releasing her salary, but in vain. She alleged that the respondents have not issued any letter regarding stoppage of her pay/salary nor there is any charge against her. The petitioner submitted that she being having no other remedy against this illegal act of respondents filed the instant petition.
3. Valuable arguments of learned counsel for petitioner and learned Asstt: A.G for official respondents heard and available record perused.
4. Perusal of record reveals that appointment order dated 24-04-2012, bears signing officer's signature and stamp of Executive District Officer, Elementary & Secondary Education, Bannu.
Perusal of the appointment reveals that it was issued in compliance with the directions of Hon'ble Peshawar High Court, D.I Khan Bench vide judgment dated 14-04-2011 and judgment of August Supreme Court of Pakistan in C.P No. 837 and on the recommendations of DPC / DSC committee in the meeting held on 14-04-2012. The appointment order further reveals that the name of petitioner, Mst. Shumaila Latif is placed on serial No. 18 and appointed at Govt. Girls Community Model School Nusrat Norani, Bannu against the vacant post. When learned Asstt: A.G was confronted with the situation that the petitioner was appointed on the directions of Court on the recommendations of DPC/DSC and after obtaining medical fitness certificate and verification of documents she assumed the charged, why she has been deprived from her salary which is her fundamental rights, the learned Asstt: A.G could not convince the Court and did not rebut the documents available on file. If the petitioner has acted in violation of the disciplinary rules, the petitioner being civil servant was liable to be dealt with under the relevant service laws and without showing any cause or issuing any notice of stoppage of her salary by passing the service laws, the very act of respondents is without lawful authority and liable to set aside.
5. In view of above situation, illegality, malafide of respondents/ department is palpable on the record. The pay of petitioner cannot be stopped in presence of the appointment order, charge report, performance of duties and attendance register, which facts have not denied by the respondents. In similar nature case titled "Mujeebur Rehman and 24 others Vs Province of Sindh through Secretary Education, Education Department, Government of Sindh and 3 others" (2012 PLC (C.S) 708, it was held: "We could not understand as to how a person in service can be stopped salary on the ground that he has been unauthorizedly appointed and he is also allowed to work. As long as a person after appointment is working in the Department, his salary cannot be stopped. Law provides procedure for removal of a civil servant which the government should follow. We in the given circumstances, direct the respondents and the Finance department to release the salaries of the petitioners forthwith and they will continue to get their salaries as long as they are not removed from the Department in accordance with law. We may observe that such instruction of the finance department to withhold salaries of the petitioner, without their removal from service in accordance with law, is contrary to the Civil Servants law. We in future, if confronted with such an eventuality would take action against the finance department. Non compliance of any of the directives of this Court will expose the concerned official to contempt proceedings. Compliance to be made within 15 days."
6. By now it has been settled that, if appointment order was made against established procedure, appointing authority would be responsible for committing irregular appointments and as the petitioner was performing her duties then her salary cannot be stopped, as there exists no provision of stoppage of salary in service laws, hence, she is entitled for the same. If the employee is made to work without payment of salary it would be against the injunctions of Islam, which envisages payment of wages before sweat of toil is dried up. This act would also be violative of the principles of policy contained in Chapter 2 part-II of the constitution and also Article 3 of the Constitution, which cost duty on the state to eliminate all forms of exploitation. This issue has sufficiently been dilated in the recent judgment of this Court in case, "Abdul Latif and others Vs Secretary C&W Department Khyber Pakhtunkhwa, Peshawar and 5 others" 2014 PLC (C.S) 330, wherein it is held that: "Their appointments are not questioned to have been made in violation of law. They are working since their appointment in January, 2013 without salaries, which is harsh in nature. The record is also silent about any query from the appointing authority of the petitioners to the effect as to whether appointments were made in violation of law or without observing the legal and formal codal formalities, required for appointment. Though there appears no illegality in the appointment of the petitioners, even then, if any irregularity is alleged and based for non-issuance of NOC, the same could not be made as hurdle by the concerned authorities, as the appointment of an employee, if in any case made against the established procedure, would not burden him, rather the appointing authority would be responsible for committing misconduct by making irregular appointments.
Reliance in this respect is placed on the case of Province of Punjab through Secretary Agriculture, government of Punjab and others Y. Zulfiqar Ali (2006 SCMR 678)."
7. Admittedly, the payment of wages to a labourer is the duty of the employer and any labour without wages amounts to violation of fundamental rights enshrined in the Constitution of Islamic Republic of Pakistan, 1973. Reliance is placed on the hon'ble Supreme Court case "Larkana and another Vs Ghulab Khan and 5 others" (2001 SCMR 1320), wherein it is held: "In our considered opinion their salaries cannot be withheld on the ground that their appointment was illegal being made in violation of the relevant recruitment rules and in fact action should have been initiated against those who are sitting the helm of affairs for such irregularities. The respondents cannot be held responsible in any manner whatsoever"
8. For the reason discussed above and deriving guidance from the superior Courts, we accept this writ petition and declare impugned act of the respondents regarding stoppage of pay void ab initio and direct the respondents to release salary of Mst. Shumaila Latif, the petitioner forthwith from the date of stoppage of her pay/salary. No order as to costs.