The petitioner, who was serving as a teacher, received order of his termination on 18-7-1993 and was informed that his appointment order stood withdrawn with immediate effect as it was not made on merit according to Government Recruitment Policy SOR-III-2-2/91, dated 13-10-1992.
Feeling aggrieved he has filed the present writ petition. A number of writ petitions have also been filed by the teachers of various schools throughout the Punjab, who have similarly been effected.
2. It is contended by the learned counsel for the petitioner that: (i) the impugned order is liable to be declared to be without lawful authority on the short ground that the petitioner was not afforded an opportunity of hearing before the same was passed; (ii) the order of appointment whereby the petitioner was appointed as teacher having taken effect, the same could not be rescinded/recalled on the principle of locus poenitentiae; and (iii) in any case, reference to the judgment of this Court in W.P. 2599 of 1993 is misplaced as the facts and circumstances of the aforesaid case were distinguishable.
According to the learned counsel, if the petitioner has been afforded an opportunity of showing cause against the proposed action, he would have satisfied the competent authority that his services were not liable to be terminated on the allegation that he secured the job in violation/derogation of the merit list prepared by the Department.
3. It is well-settled that nobody should be condemned unheard. The petitioner having been appointed as a teacher had acquired a valuable right, which could not be taken away without hearing him. The question as to whether or not the appointment of the petitioner was strictly on the basis of the merit list prepared by the competent authority should have been gone into and adjudicated upon in the presence of the petitioner. This was not done. The grievance of the petitioner is, therefore, well based in law.
4. I have had the advantage of going through judgment passed by my learned brother Muhammad Amir Malik, J. In W.P. No. 2599 of 1993. This case arose out of a letter addressed to the Court by one Saiqa Khanum, a resident and candidate teacher of Provincial Assembly Constituency No. 68, District Jhang, wherein she detailed the miseries suffered by her and denial of opportunity for appointment as teacher, though she possessed the necessary qualifications on merits. She brought to the notice of this Court that the local M.PA. Appropriated to himself the authority of making appointments of teachers who were not better than her on any account. Suo motu notice was taken and the latter was ordered to be heard as a regular writ petition on 8-3- 1993. Notices were issued to the Secretary to Government of the Punjab in Education Department and the District Education Officer, Jhang, to submit parawise comments, with a direction to the latter to attend the Court alongwith the record of recruitment of teachers in District Jhang, for the year 1993 including the case of Saiqa Khanum. During the course- of proceedings of this writ petition, many other teacher candidates similarly affected like Saiqa Khanum filed a number of writ petitions. The learned Additional Advocate-General appeared on 14-4-1993 and made a statement before his Lordship that he had asked the Secretary, Education Department and the other relevant authorities that the recruitment policy as laid down by the Government should be strictly followed and appointments made on merits.
As a consequence to the proceedings in the writ petition of Saiqa Khanum, the District Education Officers/Deputy District Education Officers of the Province terminated the services of the teachers already appointed on the dictation of the MPAs and public representatives.
5. The order impugned in the present writ petition purports to read like: "In pursuance of the decision of the Lahore High Court made in W.P. No.2599/1993 Saiqa Khanum v. Government of the Punjab, on 14-4-1993 the appointment letter of Altaful Haq (petitioner herein)is hereby withdrawn with immediate effect.
This Court had not passed final order/judgment in W.P. No.2599 of 1993 on 14-4-1993, which, as mentioned above, was ultimately disposed of through an elaborate and illuminating judgment by his Lordship on 16-8-1993.
A perusal of the text of the judgment shows that the petitioners who were before his Lordship were held to be disentitled to retain the posts against which they were originally appointed as the same were the outcome of the dictates of local MPAs. The present case in which the claim of the petitioner is that his appointment was not the outcome of political pressure is, therefore, clearly distinguishable.
6. The question as to whether the appointment of the petitioner conforms to the merit list prepared by the competent authority is one of fact and cannot be competently gone into by this Court in writ jurisdiction. This exercise, per necessity, has to be carried out by the concerned quarters and, as mentioned above, in the presence of the petitioner.
7. Mr. Farooq Bedar, learned Additional A.-G. Has conceded this legal position and has made a statement, after obtaining necessary instructions from the Secretary, Education, that this is a fit case which may be remanded to the District Education Officer/competent authority so that the eligibility of the petitioner for appointment to the post in question should be scrutinised afresh in his presence, strictly on the basis of seniority list already prepared in this regard.
8. The upshot of the above discussion is that the writ petition is accepted and the impugned order is declared to be without lawful authority and of no legal effect, with the result that the petitioner shall be deemed to be in service. The competent authority shall summon the petitioner and pass a speaking order in the matter of his appointment, exclusively on the basis of merit list already prepared by the Department. Needless to add that in case it is found that the petitioner does not fall within the merit list, he shall not be entitled to continue in service and formal termination order would be passed by the competent authority in this behalf. The matter shall be decided within a period of two weeks positively, under intimation to the Deputy Registrar (Judicial) of this Court. No costs.