The petitioner, who was serving as a teacher, received order dated 25-7-1993, whereby she was informed that in pursuance of the order of this Court dated 14-4-1993 her appointment order stood withdrawn, her appointment not having been made on merit. Feeling aggrieved, she 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 been similarly affected.
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 whereby the petitioner was appointed as teacher having taken effect, could not be recalled on the principle of locus poenitentiae; and, (iii) in any case, reference to the decision of this Court in W.P. No. 2599 of 1993 is misplaced as the facts and circumst.4nces of the aforesaid case were distinguishable.
According to the learned counsel, if the petitioner had been afforded an opportunity of showing cause against the proposed action, she would have satisfied the competent authority that her services were not liable to be terminated on the allegation that she 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 the 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.P.A. Appropriated to himself the authority of making appointments of teachers who were not better than her on any count. Suo motu notice was taken and the letter 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 the said writ petition, many other teacher candidates similarly affected like Saiqa khanum, filed 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 the Province, terminate 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 orders of the Hon---ble High Court Lahore dated 14-4-1993 ... The appointment orders (inclusive of the petitioner's) ... Are hereby withdrawn."
This Court had not passed final order/judgment on 14-4-1993, which obviously refers to W.P. No. 2599 of 1993, and the said writ petition, 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 dictates of the local MPAs. The present case in which the claim of the petitioner is that her appointment was not the outcome of political pressure is, therefore, clearly distinguishable.
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 Addl. A.-G. Has conceded this legal position and has made a statement, after obtaining necessary instructions from the Secretary, Education Department, 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 her 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 law 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 her 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, she 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.