' MUHAMMAD ALI MAZHAR, J.--- The petitioners have brought this Constitution Petition for the directions against respondents for ensuring the payment of their salaries. The case of the petitioners is that the Executive Director of the respondent No,3 released an advertisement in the newspapers for inviting applications against some vacant situations. All the petitioners applied for different posts and they were appointed on attainment of de rigueur official procedure.
2. The notice of this petition was issued to the respondents on 18.03.2016. Only respondent No,3 has filed the comments but no comments have been filed by the respondents Nos,1 and 2 regardless of availing a number of opportunities and the learned A.A.G could not justify any reason of not filing the comments except that he corresponded with letters to the concerned department for their comments but to no avail. Nevertheless, the main respondent in this case is the Sindh Teachers Education Development Authority and they have already filed the comments through their Executive Director.
3. So far as the payment of salaries of the petitioners in the midst of BPS-01 to BPS-05, the Executive Director of respondent No,3 filed a statement on 28.06.2016 along with a letter written by him to the Secretary, Education and Literacy Department, Government of Sindh on 02.05.2016, which is reproduced as under:- "The Secretary, ' Education and Literacy Department, Government of Sindh, Karachi.
' SUBJECT:- AUTHENTICATION OF DEPARTMENT FOR PAYMENT OF SALARY TO NEWLY RECRUITED OFFICIALS FROM BPS-1 TO BPS-5 AS PER DECISION OF 8TH BOG, STEDA MEETING HELD ON 12.04.16.
' I am directed to state that in August 2015 various appointments from BPS-1 to BPS-16 have been made in STEDA. The offer-orders were issued to 46 candidates in various categories, however 39 candidates joined STEDA.
' The case of all newly recruited officials regarding payment of salaries have been submitted in 8th meeting of BoG held on 12.04.16, Committee Room II, Sindh Assembly Building Karachi, for authentication and onward transmission to Accountant General Sindh Karachi.
' In this 8th meeting, the Bog unanimously decided the STEDA prepare details of officials from BPS-1 to BPS-5 and submit to department for authentication and onward transmission to Accountant General Sindh Karachi for release of salary w,e,f, date of joining.
' In this regard necessary details/documents (copy of merit list signed by committee, joining reports, all academic/experience certificates, offer letters, appointment orders, medical certificates, police verification of 13 official from BPS-01 to BPS-05) are hereby attached for kind perusal and n/authentication from the department.
Sd/- (Abdul Majeed Bhurt) Executive Director
4. In tandem, the respondent No,3 in his detailed comments counteracted the Paragraph No,6 of the memo of petition is the following visage:- "Humbly submitted that as per set procedure all the prerequisite documents (approvals, advertisements, recruitment committee recommendations, offer orders, appointment orders along with academic and experience certificates) were sent to department vide letter No, STEDA/441/2015 dated 13.08.2015 for further directives and onward transmission to Accountant General for purpose of salary. Meanwhile this matter was submitted in 7th STEDA, Board of Governors (BoGs) meeting and it was decided that summary to CM will be floated regarding single line budgeting system of STEDA. In compliance summary submitted to department on 25.11.2015. Again in 8th BoG, being competent forum this matter was placed as agenda item 09. After the threadbare discussion it was decided that in the selection process all the appointments were made on basis of interview only and the written test was mandatory from BPS-6 to BPS-16. Hence the BoGs cleared the salary of officials from BPS-1 to BPS-5 and from BPS-6 to BPS-16 all the newly recruited officials will appear in IBA Sukkur written test. In compliance the case of disbursement of salary of officials from Grade BPS-01 to BPS-5 submitted to department vide letter No, STEDA/544/2016 dated 02.05.2016 for authentication and onward transmission to Accountant General for release of salary."
5. The same respondent No,3 what's more submitted a statement on 22.08.2016 that "the petitioners are not regular and punctual towards their official duty and there is no official attendance register from BPS-6 to BPS-16 available in the office record". Likewise he augmented that "in the 8th Board of Governors, STEDA meeting held on 12 04.2016 it was decided that Executive Director shall issue letter to the remaining newly recruited officials from BPS-6 to BPS-16 for appearing in written examination through IBA Sukkur and the IBA Sukkur agreed to conduct written test of these newly recruited officials from BPS-6 to BPS-16 on 03.09.2016".
6. The learned counsel for the petitioner argued that all the petitioners were appointed after accomplishing due process of selection and when they filed this petition for the payment of their outstanding salaries, the department has come forward with a unique idea of written test after the appointments made almost one year back which smears and smacks malice and austerity in their standpoint. Neither any condition of written test was mentioned in the advertisement nor the selection committee imposed any such condition nor any such condition was provided in the offer letters. He has also filed a statement today to show that total twenty four petitioners are in the middle of BPS-6 to BPS-16.
7. On the contrary, the learned A.A.G argued that though at the time of appointment or issuing offer letters no such condition was imposed but the Board of Governors subsequently decided to conduct a written test during probationary period which is not illegal and being Board of Governors of the authority, they can regulate the terms and conditions of service even at this stage.
8. Heard the arguments. What become obvious to us from the present state of affairs that when the petitioners applied for payment of their salaries, the respondent No,3 first time took up the plea that their appointments were made without written test and the petitioners who are in BPS-06 to BPS-16 have been called upon to take part in the written test for determining their future destiny and providence. The Sindh Teacher Education Development Authority has been constituted under the provisions of "The Sindh Teachers Education Development Authority Act, 2012. Section 6 of the aforesaid Act postulates as under:- "6. (1) Subject to other provisions of this Act and the rules and regulations, the general directions and administration of the Authority and its affairs shall vest in the Board which may exercise all powers and perform all functions and do all acts and things which may be exercised, performed or done by the Authority.
' The Board in discharging its functions shall be guided by such directions as Government may give, from time to time ' If a question arises whether any matter is a matter of policy or not, the decision of Government shall be final."
9. Under Section 7 of the same Act, the Board of Governors has been constituted. The composition of Board points toward the Minister for Education and Literacy having the status of Chairperson with some other members having qualification insofar provided in the aforesaid Section. In order to sift grain from the chaff, we have surveyed the relevant documents meticulously. Annexure "B"
(page-45) is a note transmitted to the Chairman, BoG STEDA/ Senior Minister, Education Sindh for his approval with the object of embarking upon the hiring process and the formation of Selection Committee in this regard. The posts required to be advertised and filled were also alluded to in the same note. On this internal office note, the Chairman issued following directions:- "please process for the publication of advertisement and notification of Selection Committee."
' After Chairman's approval, Assistant Director, put the next note as under: "As approved by competent authority the advertisement and letter to Director Information is placed for approval and further process."
10. What deciphered us through record that note was submitted to the Chairman on 20.02.2016 which was approved by him on 11.03.2014 and advertisements for inviting applications were published in different newspapers on 01.11.2014. Till such time there was no mandatory condition of written test inflicted. At Page No,71, interview call letter of the petitioner No,1 is attached which was issued by the Assistant Director, Sindh Teacher Education Development Authority (STEDA) on 08.06.2015 with the advice to appear before the Recruitment Committee for interview on 17.06.2015.
Similar interview letters were also issued to the other petitioners but in this interview letter also no condition of written test was accentuated. The record further reflects that after interview, Selection Committee also prepared list of meritorious candidates based on interview score for different posts and basic pay scales. After completing the Selection Process, the merit lists were forwarded to the Senior Minister/Chairman, Board of Governors, STEDA for approval. After completing the entire exercise including the final approval of Chairman/Sr. Minister, the offer of appointment was issued to the petitioners and in the preamble of each appointment letter, it is clearly stated that the offer is being made on recommendation of Selection Committee and with the approval of Competent Authority. For ease of reference, the offer of appointment issued to the petitioner No,2 is reproduced as under:- "To ' Mr. Raheel Manzoor Soomro s/o Manzoor Ahmed, ' Subject:- OFFER OF APPOINTMENT AS ASSISTANT ACCOUNTS OFFICER (BPS-16).
On the recommendation of Selection Committee and with the approval of competent authority, (Emphasis applied) you are hereby offered the post of Assistant Accounts Officer BPS-16 on regular basis on the following terms and conditions:-
1. You will be governed by such rules and orders as applicable to other Civil Servants of your cadre.
2. You will undergo a medical examination on your first entry into Government Services and your appointment will be subject to the condition that you are declared medically fit by the competent medical authority.
3. In case of you tendering resignation, you will not leave the charge of your post until and unless your resignation is formally and finally accepted. Behavior contrary to this condition will be amount to misconduct and will be dealt with accordingly.
4. You will be on probation for a period of Two Years, with effect from the date of your joining, which will be extendable in accordance with the rules.
' If you accept the offer on the terms and conditions specified above, you should report for your duty to the undersigned within fifteen (15) Days of the issue of this offer, failing which shall be perceived that you are not willing to accept it, which will be cancelled without any notice.
Sd/ Executive Director Sindh Teacher Education Development Authority (STEDA)"
11. The other petitioners were also issued the offer of appointment on the same terms and conditions. At present all the petitioners are in service and in this regard there is no disagreement or altercation between the parties except that vide letter dated 17.8.2016, the Executive Director of the respondent No,3 intimated to the petitioners to appear in the written test on 3.9.2016 at Government Elementary College of Education where IBA, Sukkur will administer the written test. The present petitioners approached this Court for no other purpose except the payment of their salary but the respondents have come up with the plea that the petitioners are required to sit in the written examination after lapse of more than one year of their appointments. This petition was filed on 17.3.2016, which was fixed in court on 18.3.2016 when notice was issued to the respondents for 25.3.2016, while the letter dated 17.8.2016 calling upon the petitioners to appear for written test refers to the Board of Governors meeting dated 12.4.2016 in which alleged decision for written test was taken. On the face of it appears that the decision of posterior written test was taken to exasperate and impede the salary claim of the petitioners. The record displays that entire selection process initiated and conducted with the concurrence of competent authority and Chairman, Board of Governors had also approved the process otherwise there would be no occasion to issue appointments orders of the petitioners and allowing them joining. We are sanguine that in case of any misconduct or any other issue of lack of competence or performance, it is the employer's prerogative to take up the issue in accordance with the law but at this belated stage when more than one year has been passed, the idea to ask the petitioners under BS-6 to BS-16 to appear in the written test is unprecedented and also without lawful justification. The selection was made on merits and each individual was granted marks separately thereafter the merit lists of deserving candidates were made and appointment offers were issued. No illegality or violation of law attributed to the selection process nor it is avowed that the selection committee played a part beyond or in excess of their mandate or violated their mandate or if they were responsible to waive the condition of written test then what action was taken against them. The answer is obviously in negative. If this practice or tendency is approved and left unfastened then every employer may ask his employee at any belated stage to appear in the written test even after considerable length of his service to show whether at the time of his appointment in earlier times he was a fit candidate or not which in our view synonymous to make a person victim of sword of Damocles or to hang him around the endless threat and menace so that he may not raise voice for protecting and safeguarding his vested right as in this case the petitioners approached for the payment of their salaries but in opposition they have been asked to pick up where they left. In the case of Water and Power Development Authority v. Abbas Ali Malano and another, (2004 PLC (C.S.) 1), the apex court held that non holding of examination/interview by Authority would amount to waiver. Where Authority itself was responsible for making such appointment, but subsequently took a turn and terminated their services on ground of same having been made in violation of the rules, the apex court did not appreciate such conduct, particularly when appointees fulfilled requisite qualifications. The apex court in the case of Mst.Basharat Jehan v. Director General, Federal Government Education, FGEI (C/Q) Rawalpindi and others, (2015 SCMR 1418), discussed the doctrine, of locus poenitentiae and held that once a right was accrued to a civil servant by appointment letter issued to him after complying with all the codal formalities, the same could not be taken away on mere assumption, supposition, whims and fancy of any executive functionary.
Such right once vested, could not be destroyed or withdrawn as legal bar would come into play under the doctrine of locus poenitentiae.
12. No show cause notice or explanation letter has been produced on record to express any performance issue or lack of competence or misconduct of any individual petitioner. No lawful justification or cogent reason has been demonstrated to conduct written test when vested right has been created in favour of the petitioners. Nothing has been stated that the petitioners at the time of appointment did not possess the required qualification. Public functionaries are supposed to function in good faith, honestly and within the precincts of their power so that person concerned should be treated in accordance with law. Article 3 of the Constitution makes its incumbent upon the state to ensure elimination of all forms of exploitation. Reference can be made to judgment authored by one of us (Muhammad Ali Mazhar, J) which is reported in 2013 PLC (C.S.) 121 (Muhammad Akram Solangi and others v. D.C.O. Khairpur and others). The honourable Supreme Court in the case of Ikram Bari, reported in 2005 SCMR 100 held that Islamic welfare state is under obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed to its citizens. Principles of policy contained in Article 38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees and provide for all citizens, within the available resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals. State is obliged under Article 3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfillment of the fundamental principle.
13. As a result of above discussion, the-petition is disposed of along with pending applications in the following terms:
1. The respondents are directed to start payment of current salary of the petitioners and also make the payment of arrears within one month on proper calculation.
2. The decision of the Board of Governors calling upon the petitioners to sit in the written test at this belated stage is set aside.
3. This order will not create any embargo for future recruitments in case the respondents want to conduct written test being part of their selection process. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.