MUHAMMAD NASEEM CIIAUDHRI, J.-- Muhammad Yasin petitioner is a P.T.C. Teacher posted in Government Primary School Kaloke Tehsil Pasrur District Sialkot. Previously his pay was stopped, He WO Writ Petition No. 6658/1996 against the. Director of Schools, Elementary Education and others which was disposed of in his favour and his salary was released.
2. Now vide order No. 815 dated 14.9.1998 passed by Mr. Muhammad Nawaz Padhiar, Deputy District Education Officer (Male) Tehsil Pasrur District Sialkot on the basis of order dated 11.9.1988 of the Tehsil Implementation Committee his pay has again been stopped alongwith other many male and female school teachers even though they are on Pay Rolls.
3. He filed this Criminal Original No. 1366-W/1998 for initiating the contempt proceedings against Mr. Muhammad Nawaz Padhiar Deputy District Education Officer (Male) Pasrur on the ground that his pay cannot be stopped and the order has been violated.
4. While taking up this petition for the first time on 28.10.1998, I had recorded that "the present regime has got located certain ghost schools as well as even some of the appointments of the school teachers have been found to be fictitious. As such it would be-proper to get the reply of the adverse party". The reply has been submitted by the respondents who have taken up the stand that on the request of the Government of the Punjab, Pakistan Army was assigned the duty to check/survey the schools to find out the bogus appointments and ghost schools. According to them the team of Pakistan Army has completed the survey and prepared the report and that on the basis of the same the pay of Muhammad Yasin petitioner has been stopped by the Tehsil Implementation Committee, pasrur as it came to the notice of the Tehsil Implementation Committee that the appointment of Muhammad Yasin petitioner was fake being without approval of the then District Recruitment Committee and was thus irregular. It is narrated in the reply that after a detailed discussion in the meeting of the Tehsil Implementation Committee under the Chairmanship of the Assistant Commissioner, Pasrur District Sialkot the case of the petitioner was discussed in detail and it was decided that the salary of Muhammad Yasin petitioner alongwith other teachers he stopped immediately on the ground that his appointment was fake.
5. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate General who was also assisted by Mr. Muhammad Nawaz Padhiar Deputy District Education Officer
(Male) Pasrur District Sialkot. During the arguments it was admitted by the respondents that Muhammad Yasin petitioner is still performing his duties as a school teacher, that he has not been served with any notice for the initiation of any inquiry, that no inquiry under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 has been initiated against him and that no notice of his removal has been issued thereof as yet. Learned counsel for the petitioner argued that the petitioner is performing - his duties and he cannot be deprived of the salary to which he is entitled and that the impugned order of stoppage of his monthly salary is illegal, without legal justification and too harsh who is unable to provide bread and butter to his family. It was pointed out that some of the school teachers of the alleged category of Muhammad Yasin petitioner, having the backing of the influential persons, are being paid the salary and the discrimination is being made thereof.
On the contrary the learned Assistant Advocate General laid the emphasis that the Deputy District Education officer (Male) Pasrur and the Assistant Education Officer (Male) Pasrur/respondents are bound to obey and execute the order passed by the Tehsil Implementation Committee of which the Assistant Commissioner, Deputy Superintendent of Police and the Deputy District Education Officer (Male) are the members. He referred to the Guide Code compiled in vernacular language and issued by the Secretary Elementary, Education Department, Government of the Punjab, Lahore.
He argued that the order of the Tehsil Implementation Committee is executable and has to be followed by the respondents at every cost.
6. At this stage I would refer to Chapter 5 at page 7 of the aforesaid Guide Code wherein it is narrated that on the basis of the Army Survey following types of defective/imperfect schools have been unearthed:-
(A) Ghost/Non Existant School.
(B) Zero Enrolment School,
(C) Re-opened School.
(D) Non-Functional School.
(E) Closed School.
7. I am tempted to express and give my findings that no provision of law has been brought to the notice of this Court and that even in the aforesaid Guide Code the interim penalty of the stoppage of the salary of the male and female school teachers has not been provided. It is the admitted position that the petitioner is performing his duties and that no Enquiry under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 has been initiated against him. Rather no show cause notice has been issued in this regard. In different writ petitions of the instant nature wherein the petitioners had prayed not to stop the payment of their salaries and not to demand the past drawn salaries from them, disposed of by a learned Division Bench at Multan Bench of the Lahore High Court, following judgment was passed on 6.10.1998 in Writ petition No. 9007/1998 and other writ petitions which is reproduced, for the sake of convenience and proper disposal of the dispute, as under:- "6.10.1998 Sayed Asif Raza Gillani, Advocate for petitioner. Mr. Khadim Nadeem Malik, AAG.
This order will dispose of W.P. Nos. 9131-98, 9142-98, 9184-98, 9007-98, 9005-98, 9025-98, 8973-98, 9110-98, 8945-98, 8965-98, 895298, 8974-98, 8090-98, 7202-98, 8217-98, 7424-98, 7189-98, 8356- 98, 7892-98, 8210-98, 7025-98, 7901-98, 8227-98, 7425-98, 9109-98, 907798, 9071-98, 9078-98, 9096-98, and ICAs No. 176-98, 177-98, 178-98, 179-98, 180-98, and 181-98. The appellants and the petitioners in the above said cases are the employees of the Education Department. On the request of the Punjab Government, Pakistan Army was asked to inquire into the .Appointments made in the Education Department on the teaching and non-teaching posts. We have been informed that the said Army team has already completed the inquiry and submitted a report to the Provincial Government. The common grievance in all these cases is that on the basis of the report of the Army team, action detrimental to the interest of the petitioners/appellants in the above said cases has been initiated or is likely to be initiated which includes prosecution, departmental action, stoppage of their salaries and recoveries of the salaries received by the employees.
2. The learned AAG, on the basis of written instructions from the Government of the Punjab submits as follows:-
(1) That no action will be taken against the Civil servants serving in Education Department solely on the basis of the report of Pakistan Army which is being considered as a survey report.
(2) No ex-parte action will be taken against any of the employees. In case in which any incriminating evidence is available against an employee, action will be taken after fulfilling necessary formalities as required by law including show cause notices and personal hearing.
(3) Till such time the employees continue in the service of Education Department and action against them is not finalized, the salary due to them shall not he stopped.
The communication dated 3.10.1998 from the Govt. Of Punjab in the Education Department has also been placed on record of this case. This satisfies the learned counsel for the appellants/petitioners.
The petition is, accordingly, disposed of as not pressed in view of the undertaking given by the learned Addl. Advocate General."
Sd/- SAYED JAMSHED ALI JUDGE. Sd/- SAYED ZAHID HUSSAIN"
JUDGE.
8. It shall not be out of place to express at this stage that according to rule 7.2 narrated in the Civil Servants Rules (Punjab) Volume I Part I in Chapter 7 even a government servant who has been suspended is entitled to the pay and allowances that he is drawing immediately before this suspension. In this regard the relevant provision from the Civil Servants Rules (Punjab) Volume 1 Part I in Chapter 7 is reproduced as under:- "Rule 7.2: A Government Servant under Suspension shall remain entitled to the Pay and Allowances that he is drawing immediately before his suspension."
9. In view of the aforesaid rule 7.2 a suspended Government Servant is entitled to the pay and allowances that he was drawing immediately before his suspension and- it is surprising that the impugned order of stoppage of pay of Muhammad Yasia petitioner as well as other male and female school teachers has been passed who are still performing their duties. This is nothing but deviation from and negation of rule of law.
10. I must express that the petitioner is also entitled to the benefit of Article 4(1) and Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 which are reproduced as under:- "4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other persons for the time being within Pakistan.
25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this article shall prevent the State from making any special provision for the protection of women and children."
11. If the Additional Advocate General has given the aforesaid undertaking before the learned Division Bench of this Court at the Multan Bench on 6.10.1998 in Writ Petition No. 9007/98 and other writ petitions mentioned in the said order, the same type of grievance through the filing of this petition under disposal has been voiced. I, therefore, hold that Muhammad Yasin petitioner who has filed this contempt application is also entitled to the same relief as no discrimination can be afforded to him at the Principal Seat of the Lahore High Court, Lahore. If some male and female school teachers whose names have been included in the Survey Report are being paid the salary and their salary has not been stopped, on this ground as well no inequitable and discriminatory treatment can be afforded to the petitioner which means that till such time he continues in the service of Education Department and action against him is not finalized the salary due to him cannot be stopped unless the relevant Survey Report of the Pakistan Army is brought to a logical end. The received of the salary by the School teachers who are on the rolls of the District Education Officer/District Accounts Officer is their Constitutional right in individual case which can neither be denied nor violated. Further even the Survey Report prepared by the Pakistan Army is subject to the scrutiny of the Authorized Officer and Enquiry Officer as well as the defence/objection of the concerned school teachers included therein who is put to the not of the Departmental Enquiry.
12. The provision of bread and butter, clothing and shelter is the divine qualification. The Sovereignty over the entire universe belongs to Almighty Allah alone. His dictates have to be followed. He did not condemn even the Satin without hearing him. In the Survey Report prepared by the Pakistan Army no action about stoppage of pay has been proposed to be taken against the effected teachers who are still imparting education to the students. Under the reproduced Article 4(1) of the Constitution of the Islamic Republic of Pakistan, 1973, which cannot be suspended even during the emergency if imposed having been incorporated in Part I (Introductory) of the Constitution, 1973. "To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may and of every other person for the time being within Pakistan." Thus without Departmental Enquiry and even during suspension period the payment of salary to the petitioner cannot be stopped and only the autocratic view of the matter away and astray from rule of law is being taken by the respondents. The impugned order of stoppage of salary at this stage is not only violative of Constitution and law of the land, the same also offends the legal ethics and human rights. I must express that even if this view/observation is not taken in good taste by the Executive Authorities, yet the law of the land has to he given the weight and, take the course. The Survey Report prepared by the Pakistan Army has not been brought to a logical conclusion as yet and the salary has to be paid to the teachers.
13. For what has been said above, I accept this petition, dispose of the same in the terms that the respondents are directed to pay the salary along with its arrears to the petitioner till 6.1.1999 positively by making all the efforts. Even the District Magistrate Sialkot shall help respondent No. 1 in this regard.
14. During the proceedings it came to the notice of this Court that 159 other male and female teachers of the Education Department working under the administrative control of Mr. Muhammad Nawaz Padhiar, Deputy District Education Officer Pasrur are not being paid the arrears of pay and salaries and thus are sailing in the same boat whose list is with Muhammad Yasin petitioner. They shall also be paid the arrears of pay and salaries till 6.1.1999 subject to the condition that this order shall be operative to the extent of those male and female school teachers who are already on the pay rolls and whose pay has been stopped on the basis of the Survey Report. The said Deputy District Education Officer shall confirm and verify on 12.1.1999 about the compliance of this order through the submission of his affidavit.
15. At this stage I have to express that only Muhammad Yasin PTC Teacher/petitioner has entered the portal on this Constitutional Court even though the other male and female school teachers in the Province of the Punjab who are on the pay rolls have also the same type of grievance who are entitled to the same facility i.e. Entitled to the arrears of pay and further salary till such time they continue in the service of the Education Department and action against them in accordance with law is not finalized. They must also be waiting as to what is in the store for them regarding the ticklish problem in hand. Hence about the difficulty of other male and female school teachers in the Province of the Punjab, who are on the pay rolls, the matter has also to be considered and dealt with in accordance the same legal impact. To enter into litigation has never been liked in our social set up and rather muss fuss emanates against its increase. The pendency of litigation is quite in abundance in the Lahore High Court and is already a source of inconvenience to tire public at large. Further the male and female school teachers included in the Survey List prepared by the Pakistan Army cannot be expected to seek relief of the instant nature in the respective individual case who must be suffering from the aforesaid type of pangs of deprivation of salary. Every school teacher is not expected to engage a learned advocate and bear other expenses of litigation who have already been deprived of their monthly salary. The Holy month of 'Ramazan' and the Eid Festival are just in the offing. I, therefore, hold that all the male and female school teachers in the Province of Punjab against whom the material has been incorporated in the Survey Report prepared by the team of Pakistan Army are entitled to be paid the arrears and salary till such time they continue in the service of the Education Department of the Government of the Punjab and action against them is not finalized. As such a copy of this judgment shall be sent with his covering letter by the Registrar of the Lahore High Court, Lahore to the Secretary, Elementary Education, Government of the Punjab, Lahore immediately to release the salaries of all the aforesaid type of male and female school teachers which shall be paid to them including the arrears for the relevant period till 10.1.1999 positively under intimation to the Registrar of this Court as the matter has to be taken up on 12.1.1999. The said Secretary shall contact the Deputy Commissioner of each district in the Province of the Punjab who shall seek their courtesy for compliance to the extent of school teachers on pay rolls. It is made clear that no Drawing and Disbursing Officer competent thereof and no concerned District Accounts Officer of any district in the Province of the Punjab shall create any barrier and raise any objection with respect to the execution of this order and the arrears of the salary as well as the future salary shall be paid to all the teachers whose salary has been stopped on the basis of the Survey Report of the team of the Pakistan Army.
16. It is made clear that the competent authority of the Education Department shall be entitled and shall have the jurisdiction to proceed against the male and female school teachers in accordance with law and this order shall not prejudice any Departmental Enquiry against any male or female school teacher in the province of the Punjab.