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Petitioner: FAISAL SULTAN VS Respondent: E.D.O. (EDUCATION) and others
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title: FAISAL SULTAN vs E.D.O. (EDUCATION) and others Case No.:Writ Petitions Nos.5062, 5060, 5067, 5068, 5104, 5106, 5112, 15114, 5138, 5142,
JUDGMENT
Reported As: 2011 PLC (C.S.) 419 Result: Petitions accepted Judgment JUDGMENT ' SYED MANSOOR ALI SHAH, J.--- This consolidated judgment decides Writ Petitions No,5062, 5060, 5067, 5068, 5104, 5106, 5112, 5114, 5138, 5142, 5248, 5267, 5293, 5326, 5383 & 5445 of 2009. 2. All the petitioners in these cases were offered Letters of Agreement dated 14-10-2009 for the post of Secondary School Educators (SSE), District Bhawalnagar. All the petitioners accepted the offer and joined the said posts. Finally through impugned omnibus order dated 6-11-2009 issued by Executive District Officer (EDO), Education, Bhawalnagar, the offer letters (Letters of Agreement) issued to the petitioners were withdrawn, resulting in termination of their service. Through these petitions the impugned omnibus order dated 6-11-2009 has been assailed on common grounds by all the petitioners. These petitions were, therefore, heard together and are being decided through this consolidated judgment. 3. Admitted facts are that public advertisement dated 15-2-2009 was published in the Daily "Jang" by the respondents for the appointment of Educators to various posts i.e,, Elementary School Educators (ESE), Senior Elementary School Educator (SESE) and Secondary School Educator (SSE). All the petitioners applied for the post of SSE. After undergoing the process of recruitment as per Recruitment Policy (referred to below), the petitioners were declared successful and offered appointment through Letters of Agreement dated 14-10-2009. The said Letters of Agreement (offers) were accepted by the petitioners on 16-10-2009 (by signing the said Letter of Agreement). Thereafter, the petitioners gave their joining for the said posts on the same day. After having worked for almost a month, vide impugned order dated 6-11-2009 of the EDO (Education) Bhawalnagar, the Letters of Agreement (offers) extended to the petitioners were withdrawn
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resulting in termination of the petitioners. Aggrieved of this, the petitioners have challenged the said withdrawal Order dated 16-11-2009 through these petitions. 4. Mr. Ejaz Ansari, Advocate Supreme Court of Pakistan was appointed as amicus curiae to assist the court on the following question:-- "Whether contractual employees of the Government, like the petitioner, can maintain writ petition pertaining to their terms and conditions. What is the scope of interference, if any, in employment matters in public sector where the relationship is based on a contract." 5. The learned amicus curiae Mr. Ejaz Ansari, Advocate submitted that the concept of master and servant applies to private organizations and to statutory organizations that do not have statutory rules. However, where there are statutory rules the said concept does not apply. He argued that the matter takes a different complexion when the employer is the government. He referred to Articles 240, 241 and 260 to submit that working for the government means to be in the service of Pakistan. The amicus submitted that government employees are either civil servants or government servants. He 'argued that a contractual employee is therefore, also a government servant under the said Articles and relied upon re: Federation of Pakistan through General Manager, Railway Headquarters Office v. Messrs Mian Muhammad Salim & Company 1994 SCMR 1960 for this proposition. He further submitted that in a matter of contract at least requirement of notice is a must if the employer is the government. In this respect reliance has been placed upon re: Nizamuddin and 2 others v. Chairman, Evacuee Trust Properties Board and others 1997 SCMR 1152, re: Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930 and re: Abdul Ghatfar Khan v. Chairman WAPDA, WAPDA House, Lahore and 3 others 2008 PLC (C.S.) 415. He further relied upon Article 4 of the Constitution submitting that the said Article fully' applies to the instant case as the said Article does not create any distinction between contractual employee or a regular employee. 6. Counsel for the petitioners argued that the impugned order being without notice was in violation of the cardinal principle of natural justice and relied upon re: Dr. Ashiq Muhammad and others v. Government of N -W.F.P. And others 2002 PLC (C.S.) 144, re: Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468=2004 PLC (C.S.) 602, re: Hazara (Hill Tract) Improvement Trust through its Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678, re: Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413, re: Muhammad Zahid Iqbal and others v. D.E.O., Mardan and others 2006 PLC (C.S.) 1216, re: Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wall Muhammad 1997 SCMR 141, re: Yousaf Ali v. Government of the Punjab and others 1996 PLC (C.S.) 801, re: Fuad Asadullah Khan v. Federation of Pakistan through Secretary Establishment and others 2009 SCMR 412 and re: Messrs Millat Tractors Limited through its General Manager, Shandara, Lahore v. Punjab Labour Court No,3 and 2 others 1996 SCMR 883=1996 PLC 300 in support of their contention. It was also argued that the public functionaries have to act reasonably, justly and fairly as now codified under section 24A of the General Clauses Act, 1897 (Central Act X of 1897) and the impugned order violates this provision of law. 7. Learned Law Officer submits that there have been serious errors in the appointments of the said petitioners. According to him the merit list was wrongly tabulated by the department, therefore, the necessity to issue the impugned order. The Law Officer failed to pinpoint the errors committed by the respondent-Department in each case. 8. Private respondents failed to defend the impugned order which was passed without notice to the petitioners but submitted that in order to avoid further litigation the matter be marked for proper investigation and verification of qualifications of all the successful candidates who applied on the basis of the pubic advertisement dated 15-2-2009 (including the petitioners and the private respondents) so that this issue can be resolved once and for all.
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9. During the course of the arguments, the parties proposed that the matter be sent to Secretary Education, Government of the Punjab, Lahore for constitution of a proper committee to decide the merit of all the successful SSE candidates from Bhawalnagar and then appropriate action be taken as per letter of agreement after due scrutiny. Petitioners, however, argued that in the meanwhile they be reinstated to which the private respondents disagreed. No consensus could, therefore be arrived at. 10. Arguments heard and record perused. 11. The public advertisement for the Recruitment of Educators in Punjab dated 15-2-2009 was for various posts including Elementary School Educators (ESE), Senior Elementary School Educators (SESE) and Secondary School Educators (SSE) in the District of Bhawalnagar. The case of the petitioners pertains to SSE only. This advertisement was an outcome of the policy for recruitment of educators in government schools (2008-9) ("Policy") circulated vide notification dated 23-8-2009 [No,SO(S-IV) 2-34/2008] by the Government of Punjab. 12. The aim of the said Policy was to provide "qualified educators in public schools". It states that the "Policy is guided by the principles of merit, transparency, fool proof selection process, and fair competition". 13. The Policy provides for the constitution of a Selection/ Recruitment Committee with the following Members:--- (i) District Coordination officer (DCO) Chairperson (ii) Executive District Officer (EDO) Education as Member (iii) Executive District Officer (EDO) Finance and Planning as Member (iv) District Education Officer concerned as appointing authority Member/Secretary (v) One Nominee of the Provincial Government as notified by Secretary, School Education Department. 14. Clause B of the Policy lists the Responsibilities of the Recruitment Committee:--- (vi) Recruitment Committee shall be responsible for conducting the whole process of recruitment. (vii) Executive District Officer (EDO) shall be the appointing authority for Secondary School Educators (SSE Science/Arts/ English/Math's/Computer Science) (viii) (ix) The appointing authority shall issue Letter of Agreement to the selected candidates on the recommendation of the Recruitment Committee as per approved format. (emphasis supplied) 15. Clauses 9 to 13 of the Policy lay down the role of District Monitoring Officer (DM0), procedure for processing applications, selection, interviews and preparation of merit list and third party validation. Said clauses establish that the provincial government had set up a well-thought out fair and a transparent system of recruitment. 16. In line with the Policy, the public advertisement dated 15-2-2009 for Recruitment of Educators in Punjab stated: "Government of the Punjab has approved recruitment of educators in District Bhawalnagar for provision of teachers in schools, increase student enrollment and improve quality of education. " 17. After undergoing the recruitment process, the petitioners were approved for appointment by the Recruitment Committee and successful candidates were made offers of appointment through Letters of Agreement dated 14-10-2009. At the end, the Letters of Agreement provided a box titled "Acceptance Rejection of Offer, which was filled in by the candidates and their signatures confirming their acceptance were affixed thereunder. All the petitioners accepted the offer on 16- 10-2009 by affixing their signatures at the end of the Letters of Agreement. As a result a valid contract took place between the respondents and the petitioners on 16-10-2009. The petitioners thereafter gave their joining on 16-10-2009 and started working on the respective posts.
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18. At this stage it is important to refer to some of the important clauses of the standard format of Letter of Agreement dated 14-10-2009: "Clause 4. Period of Contract. ' The contract shall be initially for a period of Five Years extendable for the terms of five years from time to time on the basis of performance up to the age of 60 years. ' Clause 8. Termination of Contract. (i) Contract of appointment shall be liable to termination on One Month's Notice or Payment of One Month's Salary in lieu thereof by either side without assigning any reason. (emphasis supplied) (ii) Department of Education has the right to terminate, your contract at any time after giving a notice/personal hearing in case of your poor performance or conduct. ' Clause 13. Appointment through Bogus Certificate/ Degrees. ' If at any stage, it is discovered that you have obtained this appointment on the basis of bogus/forged documents or through deceit by any means, the appointment shall be considered to be void ab initio and you shall be liable to refund all amounts received. ' Clause 16. Verification of Record. ' It shall be the responsibility of concerned appointing authority that Academic and Professional record/ documents of the Educators be verified before the release of the salary. ' Matric = 639/850, Inter =610/1100, Graduation 436/800, Masters= 546/1000 M. Ed=768/1200 Experience= 4(years)" (to the extent of these marks, the extract is from the Letter of appointment issued to the petitioner in W.P. 5062/09 /BWP). 19. On 6-11-2009 with a stroke of pen an omnibus order was issued whereby the offers made to the petitioners were withdrawn and the merit list revised resulting in petitioners being deprived of their appointments/contractual employment without any notice or reason. 20. The comments filed by the respondents state that the offer letters were withdrawn on 6-11-2009 after the respondents "detected that some errors existed in these merit lists." and also that the "recruitment policy was violated." According to the comments the following observations were recorded after the issuance of the offer letters to the petitioners: (x) EXPERIENCE ' The marks of experience were omitted unjustifiably of some candidates. (xi) LOCAL RESIDENCE ' So many variations in the award of local residence marks were detected. (xii) 10 ADDITIONAL MARKS UNDER RULE 17/A ' Some deserving candidates have not been awarded 10 additional marks under Rule 17/A. (xiii) EXCLUSION OF NAMES IN MERIT LIST ' The most common complaint by the candidates was that their names were not included anywhere in the merit list. (xiv) PERCENTAGE DIFFERENCE ' The marks percentage awarded was different from their entries in the original document. (xv) RESOLUTION OF OBJECTIONS ' The objections submitted by candidates after pre-interview merit list were resolved under recruitment policy by Education Department but a quite fair number of them were not fed by the data entry operator. (xvi) AWARD OF DOUBLE BEENFIT ON SIMPLE B.Sc. DEGREE ' It was also observed that some candidates got the award of M.Sc. While they were only simple B.Sc. (xvii) COMPUTER LITERATE MARKS ' The uniform award was not practiced in case of Computer Literate notwithstanding having the same type of certificate issued by recognized government institution.
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21. It is not the case of the respondents that the petitioners had submitted bogus or forged credentials or had played fraud by tampering with the recruitment process. The comments of the respondents clearly demonstrate that the alleged "errors" creped into the formulation of the merit solely due to the mismanagement and incompetence of the respondents and their staff employed for this purpose. In spite of a transparent recruitment system put in place by the Policy, as described in detail above, the respondents, failed to follow the same, resulting in disrupting and derailing the efforts to enhance the educational system at the District and resulting in this unfortunate litigation. 22. It is sad to note that while the spirit of the Policy was to enhance the teaching capacity of the Educators and increase student enrollment, the incompetence and ineptness of the respondents resulted in its failure. As administrators respondents should have been trained to handle crises, rectify lapses and put the system to work. However, in this case, the respondents, without any remorse and without making an effort to rectify the alleged issue, thought it convenient to "pass the buck" by issuing the impugned order, which resulted in reopening past and closed appointments without furnishing any reason whatsoever. More importantly, the educators who were to energize the education system in the district ended up in courts rather than in schools. The invaluable opportunity to increase student enrollment is schools and to increase the quality of education has been lost to the wind and the damage in terms of educational time is unquantifiable. 23. The impugned Order dated 6-11-2009 is unlawful and without lawful authority for multiple reasons as discussed hereunder:--- (a) The impugned order states that the merit list was revised with the approval of the DCO/Chairman of the Recruitment Committee. Under the Policy the Recruitment Committee is responsible for the entire process of recruitment and therefore Chairman of the Committee alone could not undo the merit list approved by the Recruitment Committee after a selection and scrutiny process spanning over almost eight months. The DCO/Chairman of the Recruitment Committee therefore out-stepped his authority and jurisdiction in approving the revised merit list and the EDO (Edu) without applying his mind communicated the same through the impugned Order. Further, the Policy does not provide for the issuance of a revised merit list. (b) Offer once accepted cannot be withdrawn. In the present case the offers (Letters of Agreement) were duly accepted and acted I upon and therefore the same could not be withdrawn. The option to terminate the Agreement as per Clause 8 was available to the respondents but the same was not invoked. The impugned order violates the settled principles of the law of contract and the express provisions of Contract Act, 1872. (c) Clause 8 of the Letter of Agreement clearly states that the contract is liable to termination on one month's notice or payment of one month's salary in lieu thereof by either side. Admittedly, the respondents failed to issue such notice to the petitioners thereby violating the said term of the Letter of Agreement, which has been authored by the respondents. (d) The requirement of notice under Clause 8 of the Letter of Agreement emanates from the cardinal principal of natural justice which has now been largely replaced and extended under the English law to a more general duty to act "fairly." Under English and American jurisprudence to act fairly includes "Procedural Fairness" or "Procedural Propriety" or "Procedural Due Process." All these concepts deal with the process and procedures employed in arriving at an administrative decision rather than with its substance. "An important concern of L procedural justice is to provide the opportunity for individuals to participate in decisions that affect them. Another is to promote the quality, accuracy and rationality of the decision-making process. Both concerns aim at enhancing the legitimacy of that process." (De Smith's Judicial Review 6th Edition). It is, however, pointed out that the nature and methodology of "process" to be adopted in a particular case might differ, but
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restricting myself to the present case, the requirement of notice was a "process" that was "due" in this case. Useful reference was made to Treatise on Constitutional Law --- Substance and Procedure by Rotunda & Nowak, 4th Edition 2007. (e) The respondents cannot brush aside the requirement of Notice under Clause 8 of the Letter of Agreement. Impugned Order seriously lacks procedural due process, procedural fairness, procedural propriety and more traditionally the norms of natural justice rendering the impugned administrative decision unlawful. It does not matter if the employment is statutory or contractual as long as it is in the public domain and pertains to public and government employment, procedural fairness and due process is mandatory. Reliance is placed on Arshad. Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468=2004 PLC (C.S.) 802, re: Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934, re: Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi wand others 2002 SCMR 1034, re: Dr. Ashiq Muhammad and others v. Government of N.-W.F.P., and others 2004 PLC (C.S.) 144, re: Rana Asif Nadeem v. Executive District Officer, Education, District Nankana and 2 others 2008 PLC (C.S.) 715, re: Muhammad Amjad Malik v. Pakistan State Oil Co. Ltd. And others 2005 PLC (C.S.) 318, re: Pakistan State Oil Company v. M. Akram Khan and others 2004 PLC (C.S.) 992, re: Karachi Development Authority and another v. Wali Ahmed Khan and others 1991 SCMR 2434, re: Lal Din v. Vice- Chancellor and others 1994 PLC (C.S.) 880, re: Mrs. Anisa Rehman v. And another 1994 SCMR 2232 and re: Muhammad Tariq and other v. P.I.A. And another 1998 SCMR 429. (f) Article 4 guarantees an inalienable right to enjoy the protection of law and to be treated in accordance with law. "Law" in Article 4 includes the cardinal principle of natural justice. Article 4 is a loud and clear constitutional guarantee that every citizen and every person for the time being in Pakistan must enjoy the protection of law and be treated in accordance with law. Hamood-ur- Rehman, J. In Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 while discussing article 2 of the 1962 Constitution said:- "Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts.. In this sense it is as comprehensive as the American "due process" clause in a new garb." An integral, intrinsic and incidental part of "law" under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety. Right to a fair procedure is therefore constitutionally guaranteed in our country and makes our constitution stand out proudly in the constitutions of the world. Article 4 of our Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English Jurisprudence and Procedural Due process of the American jurisprudence. Our Constitution has boldly recognized this right to be an in alienable right of every citizen or of any other person for the time being in Pakistan. Reliance is placed upon re: Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashrniri PLD 1969 SC 14, re: New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan PLD 1999 SC 1126, re: Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863 and re: Government of Pakistan v. Farheen Rashid 2009 PLC (C.S.) 966. (g) Removal of an employee from a public sector employment without due process also offends Article 9 of the Constitution because right to life includes right to a lawful and meaningful R livelihood. Generally, "Right to life includes all those aspects of life which go to make a man's life meaningful, complete and worth living ... All aspects of life which alone make it possible to live must be declared to be an integral component of the right to life ... It includes all that gives meaning to a man's life, his traditions, culture heritage and protection of heritage in its full measure .... Right to life
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guaranteed in any civilized society implies the right to food, water, decent environment, education medical care and shelter." (The Shorter Constitution of India by Durga Das Basu relying upon re: Ramsharan Autyanuprasi and another v. Union of India and others AIR 1989 SC 549, re: Chameli Singh and others v. State of U. P. And another AIR 1996 SC 1051 and re: Air India Statutory Corporation and others v. United Labour Union and others AIR 1997 SC 645. (h) In the recent case of titled "Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry v. The President of Pakistan through the Secretary and others. PLD 2007 SC 578" Khalil-ur-Rehman Ramday, J. Observed:--- ' The above-mentioned Article 9 of the Constitution guarantees protection of one's life. All the Judges and jurists in different ages and from different jurisdictions have been one in saying that the word "LIFE" protected and assured by various constitutions could never be understood to have been used in a limited or a restricted sense and therefore, did not mean just the vegetative and the animal life of a man or his mere existence from conception to death. This word had, in fact, to be understood in its widest and fullest context to include all such rights, amenities and facilities which were necessary and essential for the enjoyment of a free, proper, comfortable, clean and peaceful life. When confronted with concrete situations, it was held through various judgments from various countries that the right, to live meant the right to live with dignity and honour and included rights such as the right to proper health care the right to proper food and nutrition, the right to proper clothing, the right to shelter, the right to earn one's livelihood and even a right to a clean atmosphere and an unpolluted environment. And in some other cases, the nuisance created by municipal sewage, industrial effluents and the hazards caused by a magnetic field produced by high tension electricity wires, were found to be an interference with the enjoyment of one's right to life. In yet another case from Indian jurisdiction, even access to proper roads for people living in hilly areas was held to be an essential part of the right to life. In more than one cases from our own jurisdiction, it was also declared that since right to live in peace in a just and a fair environment was inherent in the right to life, therefore, the right of access to justice was a well recognized and an inviolable Fundamental Right enshrined in Article 9 of the Constitution and its denial, an infringement of the said right. As a necessary consequence, it was further held that since access to justice was inconceivable and would be a mere farce and a mirage in the absence of an independent judiciary guaranteeing impartial, fair and…
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