2016 PLP (C (PLC(CS))

ZAFARULLAH KHAN KHAKWANI, J.- With the concurrence of the parties, this case would be treated as 'Pacca Case'. Through this petition, the petitioner has called in question the order dated 31.12.2009 through which letter of offer of appointment issued in favour of petitioner as Senior Elementary School Educator/SESE (Arabic Teacher) was withdrawn.

2. The brief factual matrix of the case is that in response to the advertisement published in daily newspapers, the petitioner applied for the post of Senior Elementary School Educator/SESE (Arabic Teacher) in BPS-14. After scrutiny of the record minutely, the respondents prepared merit list and being higher in merit, the petitioner was issued letter of offer of appointment against the said post in Government Elementary School, Chak No.160/P, Sadiqabad, District Rahim Yar Khan. The petitioner readily accepted the said offer and joined at the said post. She worked there about two and half (2-1/2) months and on 31.12.2009, the offer of appointment was withdrawn. Hence, this Constitutional petition.

3. Learned counsel for the petitioner maintained that in response to the advertisement published on behalf of respondents, the petitioner applied for the post of SESE(AT) in BS-14 and vide appointment letter bearing No.254-259 dated 15.09.2009 issued by District Education Officer (EEM)/respondent No.3 she was appointed in Government Elementary School, Chak No.160/P, on the recommendations of District Selection Committee. The petitioner joined her duties against the said post and one fine morning all of a sudden it came into her knowledge that her appointment letter/order has been withdrawn vide impugned order dated 31.12.2009. The petitioner preferred an appeal against the said order before respondent No.1, which was decided against the petitioner. Further submits that the impugned order is illegal, unlawful and based on mala fide as neither notice of any kind was served to the petitioner before withdrawal of said order nor any type of inquiry was conducted. It was incumbent upon the respondents to issue one month's notice to the petitioner before passing any order against her in terms of conditions of letter of offer for appointment.

4. Conversely, learned Law Officer vehemently opposed this petition with the contention that one Nasreen Ibrahim filed an appeal against Riaz Ahmad who was appointed in Government Elementary School Chak No.182/P being senior in age, which was accepted and she was selected in the said school. The said Riaz Ahmad who was higher in merit in Government Elementary School (GES) Chak No.160/P (where the petitioner was appointed) was appointed and appointment letter of the petitioner was withdrawn.

5. Arguments heard and record perused minutely.

6. It is admitted fact that petitioner being higher in merit was appointed against the seat of SESE (Arabic Teacher) in BS-14 in Government Elementary School Chak No.160/P Sadiqabad, District Rahim Yar Khan. She joined her services at the said post and worked from 15.09.2009 to 31.12.2009 when the order of appointment of the petitioner was withdrawn without any notice. During this period, she worked there without any complaint and to the entire satisfaction of her superiors. In this way, a legal right had accrued in his favour. The condition No.8 of the appointment letter available on record clearly suggests that: "(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." Neither any type of notice was served to the petitioner nor she was offered one month salary. The reply submitted by the respondents is also silent about the issuance of any notice or any inquiry to this effect. It is also notable that no order of withdrawal of appointment letter of the petitioner has been placed on record. It was not fault of the petitioner that the merit list was changed by the respondents but it was changed due to mistakes committed by them and the petitioner could not be made to suffer for the said fault. The department was itself responsible for the said lapse. It is not the case of the respondents that the petitioner was not eligible to be appointed against the said post. It is also not the case of the-respondents that the petitioner managed or manipulated in getting the appointment letter issued in her favour through backdoor or there was fault of the petitioner in this matter. When the petitioner in response to letter of offer of appointment issued by the respondents joined her duties then the withdrawal of the said letter without any show cause notice or inquiry would be against the principle of natural justice which cannot be appreciated by this Court. The same situation came into consideration before the Hon'ble Supreme Court of Pakistan in case titled Asim Khan and others v. Zahir Shah and others (2007 SCMR 1451) and the Hon'ble Court while dealing with the said case held as under:- " . It is a settled principle of law that vested rights accrued to the respondents Nos.l to 12 could not be taken back or withdrawn without fulfilling the requirement of principle of natural justice. As the impugned order passed by respondent No.13 by withdrawing their appointment letters in violation of principle of natural justice, therefore, learned High Court was justified to accept their constitutional petition. It is settled principle of law that principle of natural justice must be read in each and every statute unless and until the same is excluded from the wording of the statute itself as law laid down by this Court in Fazlur Rahman's case (PLD 1964 SC 410) and Faridsons' case (PLD 1961 SC 537). Respondent No.13 has passed the impugned order of withdrawing the appointments of respondents 1 to 12 in violation of principle of natural justice. Therefore, impugned order before the High Court was hit by principle of natural justice and was without lawful authority as law laid by this Court in various pronouncements. Reference can be made to the following judgments:-- (1) Zakir Ahmed's case (PLD 1965 SC 90), (2) Pakistan and others v. Public-at-large and others (PLD 1987 SC 304), (3) Pakistan Chrome Mine's case (1983 SCMR 1208)."

7. There is another aspect of the case. The petitioner who worked about 03-months with the respondents, was not paid salary for the said period which is against the dictum laid down by Hon'ble Supreme Court of Pakistan in case titled Administrator, District Council, Larkana and another v. Ghulab Khan and 5 others (2001 SCMR 1320).

8. Even otherwise as per information supplied by the respondents, the said Riaz Ahmad, who was appointed against the seat where the petitioner was working has already been transferred to another school and the said seat in the school is lying vacant. When the seat against which the petitioner was appointed fell vacant, she could have been adjusted against the said seat by the respondents without disturbing any person but they failed to do that.

9. For the foregoing reasons, this petition is allowed and the impugned order dated 31.12.2009 withdrawing the letter of offer of appointment of the petitioner is set-aside. The respondents are directed to adjust the petitioner against the post in Government Elementary School, Chak No.160/P, Sadiqabad, District Rahim Yar Khan. The petitioner is also entitled for the salary of the period she worked with the department from 15.09.2009 to 31.12.2009. ZC/Z-45/L Petition allowed.