' The petitioners who were appointed by the respondent department as SESE and ESE after completing all codal fornialities on contract basis, in education department have been terminated on the ground, that the required age at the time of appointment was 20 years whereas the petitioners were less than the age required and advertised by the respondent-department.
2. In response of the notice, the respondent-department filed report and para-wise comments wherein it is stated, that the petitioners were recruited wrongly by the competent authority as the minimum age limit for recruitment as Educator was 20 years, whereas, the ages of petitioners were less than 20 years on closing date of submission of applications i,e, 5.12.2011. However, the respondent-department has not denied, that the petitioners fulfill the requisite educational qualification and at the time of filing the applications mentioned their correct ages i,e, less than 20 years, the petitioners are working for the last 4 to 5 years and the fact of ages of less than 20 : years of the petitioners came into the knowledge of the respondents-department when the petitioners filed applications for regularization.
3. The Special Secretary Schools, Imran Sikandar Baloch and District Coordination Officer, Gujrat, Liaqat Ali Chatha appeared in person and frankly conceded that the petitioners fulfill the requisite qualification and no wrong information was provided by the petitioners at the time of filing the applications. The respondent-Secretary further submitted, that it is in fact the fault of the respondent-authority who at the time of appointment did not carefully scrutinized the record and appointed the petitioners, therefore, stern action has been proposed against the delinquent in accordance with law.
4. The respondent-secretary when confronted as to whether proper opportunity of a fair trial as enunciated in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, was provided to the petitioners while terminating their services, the respondent-Secretary in all fairness submitted, that no such opportunity was provided to the petitioners. Further stated, that the respondent-department is ready to consider the case of the petitioners sympathetically and the matter will be referred to the higher authorities for accommodation in accordance with law.
5. As earlier noted, that the petitioners fulfill the requisite qualification for the posts of SESE and ESE and at the time of filing the applications provided correct particulars including their age; the petitioners were appointed on contract basis and according to the terms and conditions of the contract, the petitioners can be terminated only according to condition No, 8 which is reproduced as under: "(i) Contract of appointment will be liable to termination on One Month Notice or payment of One Month Salary in lieu thereof by either side without assigning any reason.
(ii) The Appointing Authority as a right to terminate contract at any time by giving a notice/personal hearing in case of poor performance or misconduct.
(iii) The ,contract will be terminated, if the Educator is on willful absence from duty or does not achieve 100% enrollment. Student Teacher Ratio (STR) (40:1), 100% retention and quality education to be judged on the basis of PEC Examinations, BISE examinations and monthly/ term tests conducted through DTEs or any other mechanism prescribed by the Department for Quality Assurance Test (QAT).
( iv ) If degree(s)/certificate(s) are found bogus, the contract shall be terminated by the Appointing Authority."
6. Admittedly and not denied by the respondent-State functionaries, that the petitioners have not been terminated from service according to the terms and conditions of the contract. Needless to mention, that both the parties i,e, the petitioners and the respondent-department are to be regulated according to the terms and conditions of the contract executed between the parties, therefore, the termination of the petitioners is against the spirit and terms and conditions of the contract.
7. As regard, the wrong and irregular appointment of the petitioners on the basis of contract by the competent authority which, subsequently turned into termination, the Hon'ble Supreme Court of Pakistan has observed in Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan (1996 SCM R 1350) and Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others (2004 SCM R 303). The relevant para is reproduced as under: "The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment."
8. Although the Secretary of the respondent-department stated, that the action will be taken against the officers who made the wrong appointment, but the petitioners should not be penalized for the wrong action of the aforesaid officers/delinquents.
9. Even otherwise, the petitioners by afflux of time have already crossed the barrier of 20 years age and during the service of 4 to 5 years, as affirmed by the respondent-Secretary, no complaint has been reported against the petitioners. The termination of the petitioners is against the spirit and Constitutional guarantee of the Constitution of the Islamic Republic of Pakistan, 1973, provided in Article 10-A, therefore, this petition is allowed, the termination orders of the petitioners dated 05.01.2016 and 05.03.2016 are set aside and the matter is referred to the Secretary, Schools Education Department, Government of the Punjab to look into the matter in accordance with law and the principle laid down by the Hon'ble Supreme Court of Pakistan in the judgments (Supra). It is made clear that the law declared by the Hon'ble Supreme Court of Pakistan becomes the law of land under Article, 189 of the Constitution of the Islamic Republic of Pakistan, 1973.
10. Copy of this petition along with all the annexures be dispatched to the Secretary, Schools Education Department, Government of the Punjab. The petitioners shall appear before the secretary on 23.05.2016 at 11:00 a.m.