1. The brief facts giving rise to this writ petition are that the petitioner was appointed by respondent No,1 as Teacher on 28-11-1992. The petitioner earned good reports from the competent Authority as is evident from Annexures G.1 to G.7. The petitioner got her salary from June, 1993 to December, 1997; she served the department continuously and performed her duties from June, 1998 till date, as is evident from the certificate issued by the Headmistress M.C. Girls School No,21, Gujranwala but the respondents did not release the salary of the petitioner. The petitioner being aggrieved by the act of respondents filed an application before N.I.R.C. on 14-12-1998. The learned Senior Member N.I.R.C. vide order, dated 14-2-1998 directed the parties to maintain status quo meanwhile and respondents further directed to release out salary of petitioner vide order, dated 22-9-1998. The petitioner, thereafter, submitted an application before respondent No,1 to release her salary on the basis of the aforesaid order of Senior Member, N.I.R.C. on 23-9-1998.
2. Learned counsel for the petitioner contended that action of respondents is in violation of Article 4 of the Constitution. He further stated that respondents took services from the petitioner without payment of salary to her which is in violation of policy contained in Chapter 2, Part II of the Constitution. He further urged that action of respondents would also be in violation of Article 3 which cast duty on State to eliminate all forms of exploitation. He relied upon the following judgments:-- Sughra Begum's case (1997 CLC 472); Mst. Zaib un Nisa (1995 CLC 1281); Mst. Ghausia Naz's case (1997 PLC (C.S.) 666 and Muhammad Ahmed's case (1996 PLC (C.S.) 15.
2. He further stated that respondent kept Mst. Zahida Parveen who has relationship with respondent No,1 in Dastkari School, in spite of the fact that an inquiry was conducted and her documents were found bogus, therefore, action of respondents is, discriminatory and in violation or Article 25 of the Constitution. He relied upon Nazam ud Din's case (1999 SCMR 463).
3. Learned counsel for respondents stated that writ petition is not maintainable as the petitioner has other adequate and efficacious remedy available to her under the Rules of respondents. He further stated that Local Government and Rural Development Department on complaint initiated an inquiry qua the appointments of lady teachers. This inquiry was entrusted to Mr. Muhammad Afzal, Additional Director-General (Administration) Directorate General Inspection Wing, who probed into the matter and found the appointments of all 52 teachers including the petitioner being illegal, take bogus and irregular. The parawise comments reveal that present petitioner alongwith others were appointed without advertisement and also proper procedure prescribed under the law was not adopted. He further stated that appointments were made without constituting and approval of Service Selection Board; he further stated that petitioner alongwith others were appointed beyond the sanctioned strength of teaching staff so much so no budget provision was provided in the annual budget for the persons employed beyond the approved strength. He further stated that petitioner along with others were appointed during ban period. On the basis of the result of the aforesaid inquiry of Government of Punjab Local Government and Rural Development Department directed respondent No,1; that service of staff appointed illegally and irregular be terminated forthwith and appropriate action may also be initiated against the officers/officials responsible for the appointments of the said lady teachers. He relied upon unreported judgment of this Court (Writ Petition No,16350 of 1996) which was decided by my learned brother Tanvir Ahmed Khan, J., and Writ Petition No,2984 of 1996 decided by my learned brother the then Muhammad Aqil Mirza on 30-12-1996. He summed up his arguments that respondent No,1 directed the ladies Superintendent Education and Headmistress not to allow the teachers to work who were appointed irregularly vide order, dated 4-3-1999.
3. In rebuttal petitioner's counsel stated that services of the petitioner are not terminated till date; the judgment cited by respondents' counsel is distinguishable on facts and law. He further stated that order, dated 4-3-1999 did not change the status of the petitioner as the same reveals that instructions were issued to the Headmistress not to allow the petitioner to work.
4. 3-A. I have given my anxious consideration to the contentions of learned counsel for the parties. It is admitted fact that the petitioner was appointed without advertisement and in violation of prescribed procedure under the law. The Humble Supreme Court has held in Jalal-ud-Din's case (PLD 1992 SC 207); that if the order is illegal then it cannot be perpetuated; the appointment of petitioner, therefore cannot be permitted to remain in the field as the action of respondents to appoint the petitioner is repugnant of Articles 4 and 18 of the Constitution of Islamic Republic of Pakistan 1973. The Hon'ble Supreme Court of Pakistan has taken serious notice of such type of appointments in Human Right's case No,104 of 1992 which was decided on 6-3-1993 (1996 SCMR 1349) and the relevant observation is as follows:- - "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and property advertising the vacancies and at times by covering ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Rights (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject to final orders" after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith.
5. Steps shall immediately be taken to rectify, so as to bring the practices in accord with the Constitutional requirement."
6. This view was further approved and confirmed by the Hon'ble Supreme Court of Pakistan in Munawar Khan's case (1993 SCMR 1287).
7. The aforesaid proposition of law was also considered and approved the same in the following judgments:-- AIR 1965 SC 1293 and 1995 SCMR 999.
8. It seems that in view of the direction of Hon'ble Supreme Court Government of the Punjab Local Government and Rural Development Department initiated proceedings and found the appointments of the petitioner alongwith others bogus, illegal, fake and irregular. Since the petitioner has obtained appointments by illegal manner, therefore, petitioner is not entitled to get any discretionary relief on the well-known Orinciple that he who seeks equity must come to the Court with clean hands. I am fortified by the following judgments:-- Ronaq Ali's case (PLD 1973 SC 236) and Rana Muhammad Arshad's case (1998 SCMR 1462).
9. It is pertinent to mention here that petitioner has placed on record that one Zahida Parveen was kept in service in spite of the fact that her documents were found bogus after the inquiry. It is also admitted fact that the petitioner filed petition before the N.I.R.C. The learned Senior Member N.I.R.C. directed the respondents to release the salary of the petitioner vide order 22-9-1998 but the respondents did not agitate the same before any higher forum or to file an application for recalling the order, dated 22-9-1998. It is also admitted fact that the Headmistress Municipal Corporation Gujranwala School No,21 has issued certificate that petitioner is still performing her duties in the School. It is also admitted fact that no order of termination has been issued by the respondents so far.
10. Keeping in view the abovementioned circumstances, I would direct Secretary Local Government and Rural Development Department to streamline deteriorating conditions of Education Department working in the Schools Municipal Corporation. The parawise comments further revealed that the action against the illegal appointments and the delinquent officers/officials is in progress in accordance with the direction of Punjab Government. The Secretary Local Government should proceed not only departmentally but also get criminal cases registered against all these who has frustrated merit policy in the appointment by taking illegal gratification from the poor people. He is further directed to constitute high power Committee to probe into the matter. In spite of the direction of the Secretary as is evident from the parawise comments no final action has so far been taken against the delinquent officers/officials.
11. Let a copy of this order be sent to Secretary, Local Government Rural Development Department for necessary action. He is further directed to submit report to this Court within three months after receiving the order of this Court through D.R.(J). Disposed of.