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Petitioner: Professor ABDUL HAMEED VS Respondent: PROVINCE OF SINDH through Secretary EducationHonorable Justice Shahnawaz TariqJhamat Jethanand,Syed Muhammad Saulat Rizvi
2016 Y L R 940
[Sindh]
Before Nadeem Akhtar and Shahnawaz Tariq, JJ
Professor ABDUL HAMEED---Petitioner
Versus
PROVINCE OF SINDH through Secretary Education---Respondent
C.Ps. Nos.D-1349, D-884, D-923 of 2011 and D-2324 of 2013, decided on 10th February, 2015.
Constitution of Pakistan---
----Art. 199--- Constitutional petition---Amenity plot, conversion of---Principle of waiver---Applicability---Dispute was with regard to utilizing of land of school for some other purposes and his appointment of principal of the School---Validity---Land of school was amenity plot and could not be allotted, converted or sold out by officer of Revenue Department---Amenity plot could not be utilized for any other purpose, therefore, encroachments over the land and permission of Deputy Commissioner to District Police for establishing Police Horse Riding Club through an agreement could not be treated as lawful possession---High Court directed the authorities to adopt all legal measures to get released the entire land from respective illegal occupants within specified time and hand over its physical possession to the public school, in accordance with law---High Court directed Inspector General of Police to make alternate arrangements for shifting of Police Horse Riding Club---High Court also directed the Provincial Government to look into the matter---Petitioner himself attended 128th meeting of Board of Governors of the School and signed minutes of the meeting---Petitioner himself informed Banks concerned regarding appointment of respondent as principal of the school and also introduced his specimen signatures to operate accounts of the school---Petitioner had waived his right as such he could not come forward to challenge appointment of respondent as principal which was hit under the principle of waiver---High Court directed Commissioner of the Division to appoint principal of the school instantly through Board of Governors---Petition was disposed of accordingly.
1995 SCMR 650; 2009 PLC (C.S.) 28 and 280; 1995 SCMR 1593; 1991 SCMR 2434; 1994 SCMR 2232; 1998 SCMR 2268; 2009 YLR 2414; PLD 2002 SC 303; PLD 2005 Kar. 316; 1987 CLC 393; PLD 1988 Kar. 401; 2002 CLC 601; 2007 SCMR 1328; 1980 SCMR 89; PLD 1992 SC 104; PLD 1987 SC 304; PLD 2006 SC 602; 2010 SCMR 1484; PLD 2010 SC 676; PLD 2011 SC 277; PLD 2010 SC 841; 2012 SCMR 64; 2005 SCMR 642; 2012 SCMR 673; 200(sic) SCMR 583; PLD 1989 SC 166 & 199; PLD 1997 SC 315 (329); 2013 SCMR 1707 (1742) and Muhammad Idrees's case PLD 2007 SC 681 ref.
Muhammad Sabir v. Major (Retd) Muhammad Khalid Naeem Cheema and others 2010 CLC 1879; Ardeshir Cowasjee and 10 others v. KBCA and 4 others 1999 SCMR 2883; Suo Motu Human Rights cases, 2011 SCMR 582 and Province of the Punjab, through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 rel.
Jhamat Jethanand for Petitioner (in C.Ps. Nos.D-1349, 884 and D-923 of 2011).
Syed Muhammad Saulat Rizvi for Respondent No.2 (in C.Ps. Nos.D-884 and 923 of 2011).
Aghis-us-Salam Tahirzada for Respondent No. 8 (in C.P. D-884 of 2011).
Allah Bachayo Soomro, Addl. A.G. Sindh (in all C.Ps.).
Aghis-us-Salam Tahirzada for Respondent No.4 (in C.P. No.2324 of 2013).
Ahmeduddin Hanjra for Contemnor, Secretary Education (in C.Ps. Nos.D-884 and D-923 of 2011),
Dates of hearing: 18th, 24th February, 12th, 13th, 14th March, 2014, 26th January and 2nd February, 2015.
JUDGMENT
SHAHNAWAZ TARIQ, J.---By this common judgment, we would like to dispose of C.P. No.D-923 of 2011, C.P. No.D-1349 of 2011, C.P. No.D-884 of 2011 and C.P. No.D-2324 of 2013, whereby similar nature of issues pertaining to the Public School Hyderabad, have been agitated.
2. The petitioner Professor Abdul Hameed has filed two identical C.Ps. Nos.D-923/2011 and D-1349/2011 on the basis of same set of facts and allegations with only different numbers of impugned of impugned notifications issued by the respondents i.e. notifications dated 21.05.2011 and 03.08.2011 respectively.
3. The petitioner in his both petitions has stated that vide notification dated 27.04.2009, the respondent reconstituted the Board of Governors for Public School Hyderabad and appointed the petitioner as Chairman of the said Board and he assumed the charge of Chairman on 08.05.2009. Thereafter Zila Nazim Hyderabad claiming to be the Chairman of the Board challenged said notification and filed C.P No.D-228 of 2009 which was dismissed for non-prosecution. One Abbas Raza Abbasi inspite of attaining the age of superannuation on 31.12.2008, was illegally continuing as Principal of Public School Hyderabad, therefore, the petitioner, as Chairman, relieved him vide notification dated 25.04.2011 and appointed Abdul Wahid Khan as principal who assumed/took over charge on 26.04.2011. The Minister of Education and Literacy conveyed his displeasure through Additional Secretary vide letter dated 11.05.2011 and required to provide information about the affairs of the school which was replied by the petitioner. On 16.05.2011, said Abbas Raza Abbasi forcibly removed Principal Abdul Wahid Khan in compliance of verbal telephonic direction of Senior Minister of Education. Said Abdul Wahid Khan filed C.P. No.D-884 of 2011 against his removal from his office. On 23.05.2011, said Abbas Raza Abbasi came in the office of the Petitioner along with notification dated 21.05.2011 and claimed to be the Chairman of the Board of Governors. The Petitioner filed C.P.No.D-923 of 2011, whereupon the operation of said notification was suspended by this Court vide order dated 02.06.2011 and he continued his same office. On 22.04.2011, petitioner nominated the non official members of the Board of Governors and sent such intimation to the competent authority, and the required notification was issued on 14.07.2011. The Board of Governors under the Chairmanship of the Petitioner in its 127th meeting held on 23.07.2011, passed the Budget of 2009-10 and 2010-11 as per recommendations of Finance Committee and resolved all the matters on the agenda. The Petitioner made certain complaints to the Chief Minister Sindh, but instead of addressing said complaints, the then Secretary Education without any authority constituted an inquiry committee under the Chairmanship of Special Secretary. The Chairman Inquiry Committee held Jalsa-e-Aam on 28.03.2011 for conducting inquiry in absence of the Petitioner, and copy of said inquiry was not furnished to him. The Incharge Education Secretary issued notification dated 21.05.2011 which was suspended by this Court vide order dated 02.06.2011 in C.P.No.D-923 of 2011. During subsistence of above order, the Respondent Education Secretary issued another notification dated 03.08.2011, whereby the existing Board of Governors was dissolved and the petitioner was relieved from his office. Petitioner has challenged the notification dated 03.08.2011, by filing C.P No.D-1349/ 2011, praying for declaration that notification dated 03.08.2011, was issued without any lawful authority having no legal effect.
4. In C.P.No.D-884 of 2011, Petitioner Abdul Wahid Khan has sought following reliefs:--
"i) Declare that verbal directives of Senior Minister of Education on telephone if any having been issued without lawful authority is of no legal effect.
ii) That acts of the Respondent No.2 during pendency of his Petition No.764 of 2011 of trespassing in the office of the Petitioner, forcibly by removing the Petitioner from his office and taking control of the record etc. are illegal, mala fide, criminal offence and liable to punishment.
iii) That the respondents Nos.3 to 7 be directed to take immediate action under FIR, recover all articles mentioned in the FIR and take appropriate action."
5. It is further stated in C. P. No.D-844 of 2011, vide notification dated 27.04.2009, the respondent No.1 reconstituted the Board of Governors of Public School and Professor Abdul Hameed Memon was appointed as the Chairman of the Board.
In April 2011, the Petitioner was promoted as Director Studies as such he was appointed as Principal of the School. Petitioner relieved Abbas Raza Zaidi on 26.04.2011, who despite attaining the age of superannuation was continuing as Principal. Being aggrieved, said Abbas Raza Abbasi, respondent No.2 filed C.P No.D-764 of 2011. Petitioner lodged FIR No.73 of 2011 on 17.5.2011 but police has not taken any action against the respondent No.2 and other persons nominated in the FIR.
6. In C. P. No. D-2324 of 2013, 9 petitioners have prayed to issue directions to the respondents to hand over the administration of Public School Hyderabad to the Commissioner, Hyderabad. It is stated that petitioners are the parents of the students who are studying in classes from Nursery to Intermediate in Public School Hyderabad which was established in July, 1961, in order to provide education of good standard to the children. There was an ideal atmosphere in the Public School that any citizen could conveniently get admission of his children for the purpose of providing them with education of good standard, but the present administration has deprived the public to provide education of good standard to their children by unwarranted enhancement in the fees etc. Teachers of Public School, Junior Section, Hyderabad observed strike from 20.08.2013 to 23.08.2013, during school timing which is quite unethical, violation of the rules and against the educational point of view/policy. They being parents are worried of above strikes, for the reasons that educational activities have totally been stopped for their children. Petitioners visited several times to school management and approached the Principal but no fruitful result has been achieved. Though the school was established in 1961, but its Constitution and Bye-laws were framed in 1979, and the school was declared as an autonomous body. The school is established over 125 acres of land which is the public property, costing approximately Rs.15,000,000,000/- (fifteen thousand million). The land grabbing mafia has become active and wants to snatch the land and has started their activities and they are supported by their ruling masters. The last three Principals appointed in school were also retired persons. Petitions filed by the petitioners are liable to be dismissed.
7. We have heard Mr. Jhamat Jethanand, learned counsel for the petitioners in C.Ps. Nos. D-923 of 2011, D-1349 of 2011 and D-884 of 2011, Mr. Muhammad Saulat Rizvi, learned counsel for respondent No.2 in C.Ps No.D-923 of 2011 and D-884/2011, Qazi Anwar Hussain learned counsel for petitioner No.6 and petitioner Riaz Ahmed for remaining petitioners in C.P No.D-2324/2013, Mr. Aghis-U-Salam Tahirzada, learned counsel for respondent No.8 and Mr. Allah Bachayo Soomro, learned AAG Sindh and examined the entire material available on record thoroughly.
8. In C.Ps. Nos. D-923 of 2011 and D-1349 of 2011, Mr. Jhamat Jethanand, learned counsel for the petitioner has contended that Professor Abdul Hameed was appointed as Chairman of the Board of Governors by the Government of Sindh vide notification dated 27.04.2009 wherein no tenure was fixed and he took over charge on 08.05.2009. Petitioner relieved Principal Abbas Raza Abbasi vide notification dated 25.04.2011, as he had attained the age of superannuation on 31.12.2008, and was illegally continuing with his services, and Abdul Wahid Khan was appointed as Principal of the Public School, whereupon the Minister Education conveyed his displeasure through Additional Secretary and said letter was replied accordingly. He further contended that said Abbas Raza Abbasi filed C.P.No.D-764 of 2011 against his removal from service but same was dismissed as withdrawn; thereafter he on 16.05.2011 forcibly removed Abdul Wahid Khan from the office of principal in compliance of directions of Minister of Education on telephone, whereupon said Abdul Wahid Khan filed C.P No.D-884 of 2011. On 23.05.2011, said Abbas Raza Abbasi came in the office of the petitioner and claimed himself to be the Chairman of the Board on the basis of notification dated 21.05.2011, whereupon the petitioner filed C.P. No.D-923 of 2011, and this Court suspended operation of said notification vide order dated 02.06.2011. He further contended that during continuation of said order, respondent Education Secretary committed violation of said order, and issued another notification dated 03.08.2011 and the Board of Governors was dissolved and Petitioner was relieved from the office of Chairman. He further contended that the verbal direction issued by the Minister of Education may be declared as illegal having no legal effect and contempt proceedings may be initiated against the respondent Education Secretary. The respondent has issued notification illegally as nobody can be removed from the service without providing proper opportunity of hearing. The impugned notification dated 21.05.2001, was issued by the Incharge Education Secretary without approval of the competent authority i.e. Chief Minister Sindh, therefore, said notification has no legal value. He further contended that after passing order dated 02.06.2011 in C.P No.D-923/2011, the respondent could not issue notification dated 03.08.2011, which is a clear contempt of Court as such petitioner filed application for contempt of Court bearing CMA No.6318/2011 and also vide C.P.No.D-1349 of 2011 challenged the second impugned notification. He further contended that learned AAG made a statement on 19.11.2013 that notification dated 21.05.2011 had been withdrawn, but he has not placed any copy of withdrawal notification before this Court. He relied upon 1995 SCMR 650, 2009 PLC (C.S.) 28 and 280, 1995 SCMR 1593, 1991 SCMR 2434 and 1994 SCMR 2232. The respondent has not mentioned the reasons for removal of the petitioner in impugned notification as such same has no legal effect. He relied upon 1998 SCMR 2268 and 2009 YLR 2414. He further contended that impugned notification is a clear violation of injunction order passed by this Court hence same is void ab-initio, and even where notice is issued by the Court and after issuance of notice if any action is taken, the Court has taken serious view. He relied upon PLD 2002 SC 303, PLD 2005 Karachi 316, 1987 CLC 393, PLD 1988 Karachi. 401, 2002 CLC 601. He contended that the entire impugned acts were taken due to the displeasure of Education Minister that why man of his choice was not appointed. He relied upon 2007 SCMR 1328. He further contended that the status-quo order must be restored by the Court when the impugned action is taken in violation of such order. He relied upon 1980 SCMR 89, PLD 1992 SC 104 and PLD 1987 SC 304. He lastly contended that impugned notification dated 03.08.2011 may be set aside and petitioner Professor Abdul Hameed may be restored as Chairman.
9. In C.P. No.D-884 of 2011, Mr. Jhamat Jethanand, learned counsel for petitioner Abdul Wahid Khan, has contended that petitioner was duly appointed as Principal by the Chairman of the Board vide notification dated 26.04.2011 after relieving Abbas Raza Abbasi who had attained his age of superannuation and was illegally holding the office of Principal. He further contended that on 16.05.2011 said Abbas Raza Abbasi forcibly removed petitioner Abdul Wahid Khan from office of Principal in compliance of verbal direction of Minister of Education on telephone and said illegal action has been challenged in instant petition. He further contended that said Abbas Raza had also filed C.P.No.D-764 of 2011, against the petitioner Abdul Wahid Khan but same was dismissed as withdrawn. He further contended that petitioner has also lodged FIR No.73 of 2011, against said Abbas Raza Abbasi and others, but police has not taken any action against them. He lastly contended that the verbal directives of the Education Minister have no legal value and petitioner Abdul Wahid Khan may be restored in his office as Principal.
10. In C.Ps. Nos. D-884/2011 and D-923/2011, Mr. Saulat Rizvi, learned counsel for Abbas Raza Abbasi, has contended that the Chairman of Board has no power to appoint the principal of the school, but the Board of Governors can appoint so. The order dated 26.04.2011, passed by Chairman Professor Abdul Hameed for appointment of Abdul Wahid Khan as Principal and sacking of Mr. Abbas was without justification and legal authority. The prayer clauses (i) and (ii) involve factual controversy which cannot be decided in instant petition by this Court, but petitioner can file a suit for declaration and damages for redressal of his grievance. The prayer clause (iii) pertains to FIR No.73 of 2011, after submission of challan, the case is pending before the competent Court and petitioner may follow his case in accordance with the law or this Court can issue direction to the trial Court to decide the same expeditiously. He further contended that Mr. Abbas was appointed by the Board of Governors in accordance with the Constitution and adopting the proper procedure. As per Rules and Byelaws of the school, the Commissioner Hyderabad was being appointed as Chairman by the Government as such affairs of the school were being managed properly, therefore, if Commissioner is again appointed as Chairman, all the problems will be resolved accurately. As per rules the tenure of the Board is of two years only. Case law cited by Mr. Jhamat Jathanand, advocate are distinguishable and not a single case of re-employment after attaining the age of superannuation has been cited and even the cited cases were not in respect of non-statutory body. The petitioner has come to the Court with unclean hands. He relied upon 2013 SCMR 1707. He further contended that Public School is not a creation of any statute and stay order dated 02.06.2011, was operative till the tenure of the petitioner which was for two years only and upon expiration of his tenure, his rights ceased to exist. The service of the school is not that of a Civil Service. He relied upon PLD 2006 SC 602. He lastly contended that petition is not maintainable and is liable to be dismissed.
11. In C.P. No.D-2324 of 2013, petitioner Riaz Ahmed and Qazi Anwar Hussain, learned counsel for petitioner No.6, have advanced their arguments. It is inter alia contended that petitioners are parents of the students and Public School was established in order to provide education of good standard to their children and the atmosphere of the Public School was very peaceful and educational activities were being carried out properly till the Commissioner Hyderabad remained Chairman of the Board but after devolution of office of Commissioner, the Government has been appointing other persons as Chairman which has seriously affected the ideal atmosphere of education and due to illegal activities of the administration, the students are seriously suffering, as the petitioners in connecting petitions have taken law in their hands and certain conflicts have arisen between the teachers and administration, therefore, there remained frequent strikes in school. The petitioners being parents have repeatedly approached the administration but administration has failed to settle the dispute which has devastated the educational atmosphere of the school. They further contended that Commissioner may be appointed as Chairman of the Board, and Government may be directed to appoint Commissioner Hyderabad as Chairman of the Board, while the petitioners in connected petitions have already attained their ages of superannuation, therefore, their petitions may be dismissed in the utmost interest of the students and school.
12. Mr. Aghis-us-Salam Tahirzada, learned counsel for respondent No.8 in C.P. No.884/2011, has contended that Public School is not a Statutory/Corporate Body as such this Court has no jurisdiction to entertain instant petition and same is barred by the law as laid down by the Hon'ble Supreme Court in PLD 2006 SC 602, PLD 2010 SC 676 and 2010 SCMR 1484. Public School Hyderabad and its management body or the Board of Governors have been constituted under Constitution and Bye-laws of the school as such petitioner cannot invoke Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, however, he can file a suit for damages. The respondent No.8 was appointed as principal by the Board of Governors during its 128th meeting held on 20.08.2011. Petitioner Abdul Wahid attended said meeting as Secretary/member and also circulated minutes of the meeting under his signatures, and thereafter he also issued letter on 29.08.2011, to Allied Bank, National Bank and National Saving Centre, Hyderabad informing them regarding the appointment of respondent No.8 as the principal and also attested his specimen signatures. He further contended the petitioner Abdul Wahid Khan was illegally appointed by the Chairman and his appointment was not approved by the Board of Governors. The petitioner has filed instant petition with mala fide intention, which is liable to be dismissed.
13. Learned A.A.G. Sindh has contended that Petitions Nos.D-1349 of 2011, D-923 of 2011 and D-884 of 2011 are not maintainable under the law and same are liable to be dismissed. He further contended that petitioner Abdul Wahid Khan has no locus standi to file petition as he was appointed without approval of the Board of Governors, while Abbas Raza Abbasi was appointed by the Board of Governors, therefore, Professor Abdul Hameed, the then Chairman was not competent to issue such orders without approval of the Board as such petition filed by Abdul Wahid Khan is not maintainable. He further contended that petitioner Abdul Wahid Khan had participated as a Member/Secretary in 128th meeting of the Board of Governors held on 20.08.2011, and minutes of meeting were circulated with his signatures whereby Commodore Muhammad Aslam of Navy, respondent No.8 who had served as principal of Cadet College Petaro, was appointed as principal. Petitioner also issued letter dated 29.08.2011 to Managers of Allied Bank, National Bank and Incharge National Saving Centre Hyderabad, about the resolution of the Board of Governors and appointment of Commodore Muhammad Aslam as principal to operate all the bank accounts of the school, therefore, the petitioner has filed his petition with mala fide intention. He further contended that notification dated 21.05.2011 was withdrawn/superseded by the competent authority after rectifying its defects as alleged by petitioner in his petition, therefore, the respondent issued second notification dated 03.08.2011 with the approval of the competent authority i.e. Chief Minister Sindh as such second notification is neither illegal nor in violation of order dated 02.06.2011, passed by this Court regarding earlier notification dated 21.05.2011. He contended that as per recruitment rules only the Board of Governors through its Chairman has authority to appoint the Principal and Chairman of the Board has power to appoint principal. He further contended that impugned notification dated 21.05.2011, was recalled by the Government, therefore, C.P. No.D-923 of 2011 has become infructuous. He further contended that petitions are not maintainable as Public School has its own Rules/Bye-laws. He relied upon PLD 2010 SC 676, PLD 2011 SC 277, PLD 2010 SC 841, 2012 SCMR 64, 2005 SCMR 642, 2012 SCMR 673, 200(sic) SCMR 583, PLD 1989 SC 166 and 199, PLD 1997 SC 315 (329), 2013 SCMR 1707 (1742).
14. Now we would like to discuss the case law cited by the learned counsel for the petitioners as follows:--
(i) In case of Capital Development Authority and another v. Mrs. Shaheen Farooq and others, 2007 SCMR 1328, the Hon'ble Supreme Court has held that verbal order of public functionary would have no sanctity in law for the same being alien to process of law and Court. All orders passed and acts performed by state/public functionaries adversely affecting anyone must be in writing. As the respondent No.1 Secretary Education had exercised reasonably, fairly and for the advancement good governance to maintain the affairs of the school, hence this case law is distinguishable.
(ii) In case of Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawad Ahmed and others, 2013 SCMR 1707 (e), Hon'ble Supreme Court has held that violation of service rules or regulations framed by statutory bodies under the powers derived from statutes in absence of any adequate or efficacious remedy could be invoked through Constitutional Petition, where conditions of service of employees of a statutory body were not regulated by rules/regulations framed under the statute but only by rules or instructions issued for its internal use, any violation thereof could not normally be enforced through Constitutional jurisdiction and they would be governed by the principle of Master and Servant. This ruling is distinguishable and on the contrary favours the claim of the respondents.
(iii) In case of Messrs Airport Support…
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