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Petitioner: SHAMIM BANO VS Respondent: PROVINCE OF PUNJAB
1998 P L C (C
1998 P L C (C.S.) 337
[Lahore High Court]
Before Sharif Hussain Bokhari,
Mst. SHAMIM BANO
Versus
PROVINCE OF PUNJAB through Chief Secretary, Education and 3 others
Writ Petition No. 25655 of 1997, heard on 4th December, 1997.
(a) Punjab Civil Servants Act (VII of 1974)--
----S. 4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Locus poenitentiae, principle of---Application---Petitioner's appointment as Secondary School Teacher on temporary basis was ordered by Authority on condition that within two years of service, she was to clear B. Ed. Examination---Petitioner having cleared said examination her services were regularised---Said order of regularisation, however, was recalled subsequently---Validity---Order of regularisation having been passed after petitioner had fulfilled the conditions, including passing of B. Ed. Examination, Authority could not retrace its footsteps by withdrawing order of regularisation unceremoniously and against principle of locus poenitentiae, for order of regularisation had taken effect retrospectively---Order of Authority withdrawing earlier order of regularisation could not be made without giving reasons and without hearing petitioner---Order of Authority was declared to be without lawful authority and of no legal effect---Petitioner would be deemed to continue in service on regular basis in accordance with earlier order of regularisation of her services.
(b) Punjab Civil Servants Act (VIII of 1974)---
----S. 16---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Non-payment of salary and allowances to petitioner illegally-- Validity---Petitioner having served as Government servant was entitled to salary and other allowances admissible to her grade, payment whereof could not be stopped by Authority in terms of S.16, Punjab Civil Servants Act, 1974---Authority was directed to pay within two weeks salary and other allowances to petitioner in accordance with her pay scale/grade from specified date---Copy of order was sent to appropriate Authorities for disciplinary action against all those Officers who were responsible for causing hardship to petitioner by stopping payment of salary to her for a long time.
Mrs. Nasira Iqbal for Petitioner.
Ch. Muhammad Bashir, A.A.G. with Muhammad Afzal, Law Officer for Respondents.
Date of hearing: 4th December, 1997
JUDGMENT
The petitioner after having passed her B.A. Examination, was appointed as S.S.T. on temporary basis vide order dated 17-9-1989 issued by Deputy Director (Adorn. W) of the Directorate of Education (S), Faisalabad in BPS-15. One of the conditions of the appointment for her regularisation was that within two years of service, the petitioner was required to clear B. Ed Examination also. The petitioner accordingly appeared in the B. Ed examination held by the University of Punjab but her result was not declared by the University on the ground that the College from which she had appeared in B. Ed examination, was not affiliated with the University. Thereafter, many candidates including the petitioner, filed writ petitions in this Court which were decided on 10-7-1996 and the University was directed to declare the result of the candidates, who had appeared in B. Ed examination from the institution, whether affiliated or not. The University declared the result and showed the petitioner successful in B. Ed examination as is also evident from the photostat copy of the certificate (Annex. C), which shows that the petitioner had appeared in the Bachelor of Education Ist Annual Examination 1992 held in the month of June, 1993 by the University of Punjab. This, according to the learned counsel for the petitioner, was the first examination in this subject-after the petitioner had joined the service. Subsequently, by an order dated 8-5-1997 issued by the Directorate of Secondary Education, Faisalabad, the petitioner was regularised in her service in Grade-16 with effect from 10-8-1994. However, by a subsequent Office Order dated 22-9-1997 issued by the Director of Secondary Education, Faisalabad, the order of regularisation of the petitioner dated 8-5-1997, was withdrawn.
2. Learned counsel for the petitioner submits that the petitioner after being appointed in the year, 1989, continued in service and after she had qualified her B.Ed. examination, stood also regularised in service by the order of the competent Authority dated 8-5-1997, therefore, the order dated 22-9-1997 could not be passed by the Director of Secondary Education, particularly, when no reason was assigned for such an action.
3. Learned A.A.-G who is assisted by Muhammad Afzal Shah, Law Officer, Directorate of Secondary Education, Faisalabad, is unable to support the order dated 22-9-1997. He admits that the petitioner continued in service and that by order dated 8-5-1997, she was regularised in her service after the petitioner had qualified her B.Ed. Examination from the University of Punjab.
4. Learned counsel for the petitioner states that from the month of September, 1992, she has not been paid her salary despite the fact that she has been regularly performing her duties. This assertion is not denied by the other side.
5. After the initial appointment of the petitioner in the year 1989 she continued in service on temporary basis until the time her service was regularised vide Office Order dated 8-5-1997 issued by the Directorate of Secondary Education, Faisalabad. The latter order was passed because meanwhile the petitioner had qualified her B.Ed. 1st-Annual Examination, 1992 vide Annexure. Thus, there was no reason or justification for non-payment\ of the emoluments to the petitioner who was performing her duty regularly. The respondent did not stop there but on 22-9-1997, the Director, Secondary Education, Faisalabad (respondent No.2) issued order withdrawing earlier order dated 8-5-1997 whereby the petitioner was regularised in service.
6. The order dated 22-9-1997 is not only bad in law but is also mala fide, inasmuch as it was not preceded by legal formalities not does it contain any reason justifying such a drastic action against the petitioner. No notice prior to the issuance of this order was given to the petitioner.
7. It appears that without applying the mind to the facts and law relating to this case, respondent No.2 had passed the aforesaid order dated 22-9-1997 in a slipshod manner. He has ignored the fact that only a few months earlier, he had himself passed the order dated 8-5-1997 regularising the service of the petitioner and awarding her S.S.T. regular Grade-16 with effect from 10-8-1994. Since the order dated 8-5-1997 was passed after the petitioner had fulfilled all the conditions, including the passing of B.Ed. examination, the respondent No.2 could not retrace his footsteps and withdraw the order dated 8-5-1997 unceremoniously and against the principle A of locus poenitentiae, as this order had already taken effect retrospectively from 10-8-1994. Thus, the order dated 22-9-1997 withdrawing the earlier order of regularisation of the petitioner's service, could not be made without giving reasons and without hearing the petitioner. This order, which is reproduced below, does not contain the reasons on which it is based, justifying the same: ---
"DIRECTORATE OF SECONDARY EDUCATION, FAISALABAD DIVISION, FAISALABAD
Order No.4/SA/97/EW/---dated 22-9-1997
SUBJECT: WITHDRAWAL OF AWARD OF REGULAR GRADE
The orders regarding the award of regular Grade BS-16 as S.S.T. issued under this office order No.4/1-SA(97) EW/7005, dated 8-5-1997 in favour of Mst. Shamim Bano former S.S.T. (SC) Untrained Government Girls Middle School 487/GB, District Faisalabad are hereby withdrawn.
(CH. MEHR DIN ZIA) DIRECTOR OF SECONDARY EDUCATION, FAISALABAD DIVISION, FAISALABAD
Endst. No.4/SA(97)/EW/ 16780-87
Therefore, the impugned order dated 22-9-1997. issued by respondent No.2 is hereby, declared to be without lawful authority and of no legal effect. Resultantly, the petitioner shall be deemed to continue in service on regular basis in accordance with order dated 8-5-1997 issued by respondent No.2.
8. The petitioner was admittedly appointed in the year 1989 vide order dated 17-9-1989 and since then continues performing her duties. She was, thus, entitled to the pay and other allowances admissible in her grade, the payment whereof could not be stopped by the respondents. Section 16 of the Punjab Civil Servants Act, 1974 provides that: --
"A civil servant appointed to a post shall be entitled in accordance with the rules to the pay sanctioned for said post."
Even otherwise, because she had performed her duties, she was entitled to the emoluments of the job which she had done. The non-payment of salary and other allowances to the petitioner from the month of September, 1992 was, therefore, illegal and unjustified. The respondents are, therefore, directed to pay, within two weeks, the salary and other allowances to the petitioner in accordance with her Pay Scale/Grade from the month of September, 1992 onwards.
9. A copy of this order shall be sent to the Chief Secretary and the Secretary to the Government of the Punjab, Education Department for disciplinary action against all those officers who are responsible for causing hardship to the petitioner by stopping payment of salary to her for such a long time. The costs shall be recovered from the Director, Deputy Director and Accounts Officer of the Directorate of Secondary Education, Faisalabad who appear to be responsible and shall be paid to the petitioner.
A.A./S-172/L Petition accepted.